Mrs Barrett
12The Respondent has now refused to confirm or deny whether it holds information in respect of items 6 and 7 in relation to Mrs Barrett. It submitted that it was not required to provide detailed reasons for refusing to confirm or deny that it holds information or intelligence reports and that to do so would defeat purpose of the section. Further, the Respondent submitted that it is only where the agency has refused to provide access is it required, pursuant to s.61 of the GIPA Act, to provide detailed reasons. The Respondent submitted that there is no provision in the GIPA Act for reasons to be given in the case of a decision pursuant to s.58(1)(f). It sought to draw a distinction between the previous situation under s.25(2)(b) of the Freedom of Information Act 1989 ('FOI Act') which provided that a decision to neither confirm nor deny the existence of a document was deemed to be a decision refusing to grant access. While this distinction may be accurate, the Respondent's submission overlooks the onus that it bears under s.105 of the Act. The Respondent acknowledged though that, the Tribunal must have regard to all relevant factual material in order to exercise all of the functions conferred on the administrator under the GIPA Act: s.63 of the Administrative Decisions Tribunal Act 1997 (now the Administrative Decisions Review Act 1997).
13The Information Commissioner's view was that, generally, it is preferable for agencies to give as many reasons as they can to help applicants understand the basis for the decision, taking into account circumstances where the information is of a sensitive nature. I agree. A fundamental object of the GIPA Act is to open government information to the public. That necessarily entails the need for adequate reasons if an agency asserts that it should not release information. There is no reason why this should not apply to a decision to neither confirm or deny whether it has information. I note the President's view, albeit in the context of the FOI Act, in Ibrahim v Commissioner of Police, New South Wales Police Service [2003] NSWADT 220 ('Ibrahim') at [9] that it is rare for the agency to take the approach which the Respondent has adopted in these matters. The Queensland Information Commissioner describes it as a position to be taken in 'rare and exceptional circumstances': Office of the Information Commissioner, Queensland, Guideline: Neither confirm nor deny the existence of documents, 23 October 2013.
14The Respondent submitted that s.58(1)(f) represents an exception to the pro-disclosure 'bias' in the GIPA Act in that it reflects that there are competing interests which need to be balanced within the statutory scheme. The Respondent referred me to the recent High Court decision of Kline v Official Secretary to the Governor General [2013] HCA 52, in relation to the Freedom of Information Act 1982 (Cth), at [37]:
The FOI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
15I do not, however think this is new: the GIPA Act clearly anticipates a balancing process. Further, the case was discussing the general principle and did not discuss the Commonwealth (loosely described) "equivalent" of s.58(1((f), s.25 FOI Act (Cth).
16The Respondent's evidence in the substantive matter consisted of 4 open and one confidential statement by Senior Sergeant D. Brand, the Co-ordinator of the Respondent's Information Access Unit, and one open and one confidential statement by Detective Inspector S. Sheather, Manager, Administrative Officer Conduct Unit, Professional Standards Command. I have taken that evidence, to the extent relevant, into account for the purposes of this decision.
17Having said that, I should also observe that it seemed to me that the Respondent, in its confidential evidence and submissions, had adopted a very narrow view of s.107(2) of the GIPA Act. Had the matter been heard other than on the papers, some robust discussion may have occurred in relation to its claim for confidentially over much of its evidence and submissions. I note the discussion of s.107 in Black v Hunter New England Local Health District [2011] NSWADT 295. Ultimately the outcome has been unaffected, but I have for the present purposes, and in fairness to the Respondent, accepted the Respondent's claim of confidentiality in respect of its evidence and submissions for the purposes of the decision.
18Not for publication
19The Respondent submitted that there is an overriding public interest against disclosure of information confirming or denying that fact there is a public interest consideration against disclosure. Taking its general submissions to apply to this contention, it relied on Table 1(d), prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, and, additionally or in the alternative, that if information existed it would tend to reveal the identity of an informant or prejudice the future supply of information from an informant pursuant to Table 2(a). These submissions it seems to me more appropriately address the substantive issue, namely, if there were documents, the Respondent contends that there is an overriding a public interest against disclosure of the information in those documents. This is not the same as contending that there is an overriding a public interest against disclosure whether or not there is information held at all, which is a much more serious contention, and one which denies an applicant even the knowledge that information exits. I have observed that there was no contention that in this matter there is a conclusive presumption against disclosure under s.14(1) and Schedule 1, or 2 of the GIPA Act. In some respects it appears that the Respondent seeks to insert another level of restriction on an applicant's access, by asserting that an applicant should not even be made aware whether or not there is information which answers the access application.
20Not for publication
21Not for publication
22Not for publication
23The Tribunal needs, in each case, to be satisfied as to the public interest considerations against disclosure whether information is held, and then to consider if these displace the presumption in favour of disclosure. It does not necessarily follow that the existence or otherwise of intelligence/surveillance would be disclosed. Neither does it follow, that in every case, that public interest considerations against disclosure would outweigh those in favour of disclosure, although there may be many circumstances, such as those outlined by the Respondent in its confidential submissions, where it will. Notwithstanding the significant weight to be given to the protection of informants in many circumstances, as discussed in Fisher v NSW Police [2002] NSWADT 267, it does not necessarily follow that the identity of informants would be revealed.
24The Respondent referred me to the Federal Court decision in Secretary, Department of Health and Ageing v iNOVA Pharmaceuticals (Australia) Pty Ltd [2010] FCA 1442 in relation to an application under the Freedom of Information Act 1982 (Cth). There Emmett J considered the company would be able to make certain deductions from successive applications which would have commercial implications. It seems to me that this is another application of the 'mosaic effect' referred to in Saleam v Commissioner of Police, New South Wales Police Service [2002] NSWADT 40, to which the Respondent had referred in its open Reply.
25Not for publication
26Not for publication
27The agency bears the onus of justifying its determination: s.105 GIPA Act. I find that, in these matters, the Respondent has not discharged its onus under s.105 of the GIPA Act that there is an overriding public interest against disclosure of information confirming or denying that information is held by the Respondent.
28Consequently, I reject the Respondent's contention that to confirm or deny whether it holds information in relation to Mrs Barrett that there is an overriding public interest against disclosure of that fact.
29Not for publication