Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 362 | Case summary

Consideration and Findings

The Respondent's grounds for refusal/redaction are listed in the Table to section 14 of the GIPA Act. They are s 14 cl 1(d), 2(a) and 3(a). I will consider these clauses in that order. Each of them stipulates a public interest against disclosure where disclosure could "reasonably be expected to" have a particular effect. That phrase was considered in Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190, where it was held the words "require a judgement to be made by the decision maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation in terms of probabilities or possibilities or the like". In Leech v Sydney Water Corporation [2010] NSWADT 298, the Tribunal held [at 25]: "something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived."
The first of the refusal grounds is s 14 cl 1(d). This clause is concerned with 'Responsible and Effective Government'. It states "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions".
The Respondent submits the relevant material was provided on a confidential basis to facilitate an investigation and that its release would significantly impact upon the willingness of members of the public to assist or participate in investigations as assurances of confidentiality would be of little effect. In Robinson v Department of Health [2002] NSWADT 222 [at 71] it was held that the effective performance of an agency's investigative functions depended to a large extent on the cooperation of those who had relevant information. "If information obtained confidentially is provided to an Applicant…then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency's functions".
The affidavit of Constable Tunks describes the nature of the information and the confidential basis on which it was obtained and the manner in which it facilitates the agency's functions. Under cross-examination, Constable Tunks made some concessions about the detail and accuracy of the records and of his recall of the events. He was questioned about his policing experience at that time and said this was his first experience of such a matter. He was questioned about paragraph 13 of his affidavit concerning confidentiality. He conceded that it was "too general" and he did not recall discussing confidentiality at the time with the witness. Nevertheless, he adhered to the proposition that there was an expectation of confidentiality for such witness information and on re-examination he said that was part of the police training that he had received.
In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at 40, the Appeal Panel stated: In its written submissions to the Tribunal below, reiterated on appeal, the agency submitted that there is an expectation, if not an express undertaking, that information reported to Police will be kept confidential and will only be used and disclosed by the Police in the conduct of law enforcement activities. In support of this view, the submissions drew on the observations of Smart AJ in Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270, and also similar observations in a number of Tribunal decisions, for example, Fisher v Commissioner of Police [2002] NSWADT 267, DZ v NSW Police [2002] NSWADT 274 and FA v NSW Police [2003] NSWADT 196. There has been a long history of cases in the Tribunal that have recognised the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies: see, for example, the early cases of Taylor - v- Chief Inspector, RSPCA [1999] NSWADT 23; Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35; as well as the cases already mentioned. While the cases involved exemptions in the previous legislation cast in different terms, they reflect a recognition of the basic point made by the agency in this case.
On this issue, the Applicant submits, in part (paragraph 56 et seq), "It is asserted correctly that police functions include the prevention and investigation of crime... However, police functions are not circumscribed by this and in any case the prevention and investigation of crime include a broad range of activities, which vary widely in nature... whilst the owner of the damaged car may have alleged matters which could constitute an offence, the police referred to this matter almost from the beginning as a "medical matter" (case file) and did not "investigate" it as a crime or an offence. Had they done so, Miss Bailey would have been afforded the proper processes of the law. The issues in this case are related to safety rather than a crime... It is submitted, that when police are notified of or are called to an accident, as routinely occurs, and witnesses and bystanders provide information as to the circumstances, there is not necessarily a general assumption that it is given in confidence. This was allegedly a parking incident and one in which, on the evidence of the photographs taken of Ms Menzel's car, barely discernible damage was done. No evidence has been provided to the Applicant as to whether the car owner and witness in this case we're given any assurances of confidentiality or whether they expected it. Constable Tunks gives evidence that people generally don't ask whether their information will be confidential and he says that this is because they expect it. He is not in a position to give this evidence and it is pure speculation".
I accept the sworn evidence of Constable Tunks that his police training included emphasis on protecting the confidentiality of witnesses. Both parties made reference to the NSW Police Customer Service Charter which states, in part, "We will maintain your confidentiality". I do not accept the proposition that witnesses and bystanders don't assume their information will be kept confidential. Indeed, on the available evidence I consider the reverse of that proposition to be the case. That is, that witnesses expect the information they provide to police is treated in confidence.
I accept the evidence that the relevant information was provided on a confidential basis. It is clear that the confidential provision of such information by members of the public significantly assists the Respondent to ensure the integrity of its procedures. I accept that the information facilitated the exercise of the agency's investigative function, and that disclosure could reasonably be expected to prejudice the future supply of such information by members of the public. I have considered the factors in favour of disclosure. I find that the information was properly refused pursuant to s.14 cl 1(d).
The next ground, cl 2(a), relevantly provides: "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant".
The Respondent submits "the witness to this incident was an informant, within the ordinary meaning of that word, in that they provided information to the police. The word informant is not limited to police informers (see for example NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55) but plainly includes them. Revealing the redacted information relating to the witness would reveal their identity as an informant. That much is plain on the face of the Confidential Bundle. Revealing the identity of an informant would expose them to the risk of reprisals from offenders. As noted above at [45], that is an actual and foreshadowed risk in this case." The latter reference comes from the evidence of Constable Tunks, to the effect that the Applicant blamed the witness who reported the incident. The Applicant submits the suggestion of possible reprisals is without foundation. The Applicant states (paragraph 65) she did not tell Tunks that she blamed the witness.
The principal issue for consideration here however, is not reprisal but could disclosure "reasonably be expected to…reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant"? On the face of the records the answer to that question is yes. Disclosure of the information would absolutely reveal the identity of an informant. The Respondent's investigations rely on information often from members of the public and such disclosure could reasonably be expected to inhibit or prevent members of the public from coming forward in the future with crucial and relevant information and this would negatively affect the Respondent's ability to gather evidence for its investigation function.
The third ground for refusal is in cl 3 of the Table to s 14, which deals with "Individual rights, judicial processes and natural justice". Sub-clause 3(a) states: "There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to…reveal an individual's personal information". Personal information is relevantly defined in Schedule 4 of the GIPA Act as "information or opinion…about an individual…whose identity is apparent or can reasonably be ascertained from the information or opinion". The Information Commissioner's Guidelines describe personal information as including a person's name, personal address and contact details, such as an email address or telephone number.
The Respondent submits that the redacted information is personal information as individuals are able to be identified from the information or their identities are reasonably apparent from the information. It includes names, contact details and other information of their personal circumstances. The disclosure of that information to the public at large renders individuals identifiable or contactable by other persons including persons unknown to the individuals to whom the information relates.
The Applicant submits (at paragraph 75) "The witness statement is the only direct evidence that Ms Bailey was involved in the parking incident". And (at paragraph 50 et seq) "The…witness had already provided access to his/her identity through the note left on the windshield of the damaged car, which must have been in clear public view. It was the first morning after COVID restrictions were lifted. The car was parked next to a footpath in front of the line of shops and cafes... It is safe to assume, a steady flow of pedestrians... They would pass very close to the car. The note would have been available for all to see. That is a very different situation from that, for example, of Camilleri where the information was provided by via a 000 number or the other situations in the cases cited by the Respondent. In this situation it is submitted the personal information was "in the public domain" and the public interest consideration in cl 3(a) is not engaged."
The Respondent submits "there is no reason to think that members of the public would stop to inspect a note left on somebody else's car, and thereby gain access to any personal information included on the note. A note left on someone's car is not intended to disclose information to the world at large. Leaving a note on someone's car is akin to leaving a note in their letter box - it is only to that person that disclosure is intended". The Respondent suggests that "the note could well have been folded over, to obscure its contents, or that its contents would have been obscured by the windscreen wipers, if it was left underneath them. It is possible that a member of the public could unfold the note or remove it from beneath the windscreen wipers but, again, there is no reason to think that this occurred and that the information in question was actually publicly disclosed".
As can be seen in the quotes from the parties' submissions in the preceding 2 paragraphs, the issue about the note "being in the public domain" is attended entirely by speculation. There is no evidence as to whether the note was folded or not, or obscured by the windscreen wipers, or whether it was seen by anyone, other than the owner of the vehicle when they returned to it. Schedule 4 of the Act defines 'disclose' and 'reveal', as follows: disclose information includes make information available and release or provide access to information; reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
At hearing, the Respondent relied on Nasr v State of NSW [2007] NSWCA 101 at 127 as authority for the proposition that placing the note on the window did not amount to making the contents known. In a post hearing submission, the Applicant distinguished the facts of Nasr and its relevance to GIPA Act proceedings, concerning as it did s 13(1) of the Criminal Records Act that prohibits disclosure of certain types of information.
In Nasr the Court of Appeal said [at 217]; The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: R v Skeen & Freeman (1859) Bell 97; 169 ER 1182 ("uncovering … discovering … revealing … imparting of what was secret … [or] telling that which had been concealed"); Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at 614-5 ("... a statement of fact by way of disclosure so as to reveal or make apparent that which (so far as the "discloser" knows) was previously unknown to the person to whom the statement was made"); R v Gidlow [1983] 2 Qd R 557 at 559 ("telling that which has been kept concealed"); Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297 at 299; A-G v Associated Newspapers Ltd [1994] 2 AC 238 at 248 ("to open up to the knowledge of others"); Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197 at [78] ("the revelation of information for the first time"). In my view, the provision by the keeper of the records of Waverley court of the records of the conviction would be a disclosure of information relating to a spent conviction only if the solicitor at the Crown Solicitors Office to whom that record was provided did not already know the information that was contained in it. When the conviction records were provided as a result of a request made by the relevant solicitor at the Crown Solicitors Office, I would not infer that the provision of the documents amounted to the disclosure of information relating to a spent conviction. There is simply no proof or concession concerning how much that solicitor knew about the convictions before obtaining the charge sheets, beyond the inference that is available from the conceded fact that she asked for the records that she knew enough about the content to make it worthwhile to ask for the records. Thus, in my view the appellants did not establish, even at the level of proof needed to establish an illegality for the purpose of a question of admissibility of evidence in a civil proceeding, that there was any contravention of section 13.
In my view, placing a note on a car's windscreen does not amount to making it known to an audience that might or might not see it, nor does it amount to placing it in the public domain. The fact of it being on the windscreen in a public parking space does not of itself make its contents known to the public. I am not satisfied the information on the note was in the public domain.
I have read the redacted information in detail and at length. I accept the evidence of Constable Tunks as to how this information was obtained and treated in confidence. I am satisfied that it contains the names and contact details of people or that their identities can be ascertained from the information. I am satisfied the redacted material is personal information and that disclosure of the material could reasonably be expected to disclose an individual's personal information.
The Applicant has made extensive submissions concerning the public interest factors in favour of disclosure, for example (at paragraph 41) "another public interest factor which should be considered in favour of disclosure is a manifest public interest in affording fairness to a person whose cognitive capacity is being questioned. Persons whose capacity is in question are, by definition, vulnerable and entitled to protection and assistance. It must be assumed that they may not be in a position to adequately protect themselves against false allegations. The decision that persons lack capacity has serious consequences for their legal rights and is not to be taken lightly. It is in the public interest that all information which is used to base a presumption that a person lacks capacity be disclosed. That applies to the information which is sought in this matter."
This submission relates principally to the issuing of the Question of Fitness Form to the Applicant by the police. As a consequence, the Applicant was required to undergo a medical assessment and sit for a driving test, which she did. There is no evidence before the Tribunal that the Applicant is lacking in capacity. In fact, I had the benefit of observing the Applicant at the hearing and I am satisfied there is no reason to question her capacity or cognitive function.
One can readily understand the Applicant's desire to know the contents of the confidential information which has adversely affected her. The concessions made by Constable Tunks about the quality of the investigation, such as it was, would only serve to reinforce her concerns. There are real questions about the way that process unfolded and the assumptions made by a junior Constable about an older person. However, as submitted by the Respondent the Tribunal is not called upon to determine a claim for age discrimination in these proceedings. No such claim has been made and the Tribunal would not have jurisdiction to deal with any such claim in these proceedings. The Tribunal is not called upon to review the investigation carried out by the Respondent in relation to this incident, or the findings of that investigation. There is no reason to doubt the evidence of the witness to the incident. Moreover, having considered the content of the Confidential Bundle, I'm satisfied that releasing the withheld information would not assist the Applicant to contest her liability to pay for the damage claimed.
I have considered the public interest factors in favour of disclosure (s12 GIPA Act) and the personal factors of the application (s55 GIPA Act). I find those factors are outweighed by the public interest against disclosure of this information.

Bailey v Commissioner of Police, NSW Police Force

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Judgment (10 paragraphs)

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