Barrett v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2014-01-01

reasons for decision

This decision is to be read in conjunction with the decision published today in relation to these matters, in respect of which the Respondent had refused to confirm or deny that it held information because it claimed there is an overriding public interest against disclosure of information confirming or denying that fact: s.58(1)(f) of the Government Information (Public Access) Act 2009 ('GIPA Act'). This decision relates to the remaining information.

Background

The Applicants, who are husband and wife, both served in the NSW Police Force ('NSWPF') for some years until they were medically retired - Mr Barrett in May 2009 with a physical injury, and Mrs Barrett in in January 2010 with a psychological injury.
In 2009 the Applicants lived in the Gladesville area and Mr Barrett regularly went for a walk each evening. One evening in October 2009 while Mr Barrett was out walking, a vehicle stopped beside him and the male driver approached him and showed a NSWPF badge. He said he wanted to have a chat with Mr Barrett but Mr Barrett declined and continued his walk. A short distance on, the vehicle stopped beside him again. The same male and also a female alighted from the vehicle. The female yelled "We just want to talk to you". Mr Barrett asked where they got their power from or what was the reason for stopping him, and asked to be told who they were and where they were from. Neither answered. Mr Barrett then thought he saw an unmarked police car occupied by four males near his home. During this time Mrs Barrett was at home and her car - AE-89-SJ - was in their driveway.

History of the application

On 14 July 2010 the Applicants applied to the Respondent for access to the following government information under the GIPA Act: The computer printed audit trail/s of all people who have accessed NSW Registration plates AE-89-SJ, using any computer system, from 1 September 2009; The computer printed audit trail/s of all people who have accessed RTA records for NSW Drivers Licence Number 11362097 and/or 11535569 from 1 September 2009; The computer printed audit trail/s of all people who have accessed RTA records for John Barrett (and/or Lara Barrett) from 1 September 2009; The computer printed audit trail/s of all people who have undertaken a check, using any computer system, on John (and or/Lara Barrett) from 1 September 2009; The computer printed audit trail/s of all people (including their position and location) who have undertaken a check, using any computer system on (address) from 1 September 2009; All computer printed copies of all COPS events, intelligence reports, etc relating to John (and/or Lara Barrett) from 1 September 2009; Photocopies of the notebook, duty book, or any other written record of any person conducting any of the above checks (including the notebook number, duty book number, name, position and command they were attached to).
Initially the documents sought under Items 1-5 and 7 were refused in full. In relation to Item 6, a search of COPS was undertaken and Mr Barrett was informed that no documents were held. Somewhat incongruously, the Respondent did not confirm or deny whether any intelligence reports were held in relation to Mrs Barrett.
Subsequently, after the Applicants sought review by the Office of the Information Commissioner ('OIC'), the Respondent again decided to refuse access to the documents sought under Items 1-5. The Respondent found no documents were held under Item 7 in respect of both Mr and Mrs Barrett.
The Applicants again applied to the OIC for a review. The OIC recommended the Respondent reconsider in relation to Items 1-6 and conduct all reasonable searches necessary to identify the information in Item 7.
On 9 November 2012, the Respondent became aware that the audit report conducted in relation to Mrs Barrett had not included her name (Items 3-4) and conceded this was an administrative error. The Respondent conducted the audit relating to Mrs Barrett's name on 9 November 2012.
Contrary to its previous position, the Respondent now refuses to confirm or deny whether any records are held under Item 7 relating to Mrs Barrett: s.58(1)(f).

Relevant Legislation

The objects of the GIPA Act are set out in s. 3, which provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: authorising and encouraging the proactive public release of government information by agencies, and giving members of the public an enforceable right to access government information, and providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: that this Act be interpreted and applied so as to further the object of this Act, and that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
It was not disputed that the information the subject of this application is government information that is held by an agency: s.4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure': s.5 of the GIPA Act.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure
The public interest considerations against disclosure are set out in a Table in s.14 of the GIPA Act, and, as relevant, are discussed below.
Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: Agencies must exercise their functions so as to promote the object of this Act. Agencies must have regard to any relevant guidelines issued by the Information Commissioner. The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s105(1) of the GIPA Act.

EVIDENCE

The Respondent's evidence 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.

The audit report

It seemed to me that there was scope for some confusion in ascertaining what the Applicants seek and what it is the Respondent has addressed in considering their access applications, revolving mainly around the use of 'audit' by both parties but possibly relating to different things. I understand the Applicants to seek the 'audit trail' in relation to various things whereas the Respondent has referred to an 'audit report'. In the end result, for the reasons discussed below, I do not think it ultimately matters which turn of phrase is used.
In responding to access applications an agency is not required to make a new record of information: s.75(2)(a) and (c).
The Respondent referred me to Workcover Authority (NSW) v Steadfast Group Pty Ltd [2010] NSWADTAP 23, where the Appeal Panel held in relation to s.23 of the Freedom of Information Act 1989 ('FOI Act') that an agency which has a document in electronic form is required to use its usual equipment to recover and produce that document. An agency was not required to use "special search techniques or manipulate its data to produce a document that would otherwise have not been required for its administrative purposes."
In his open statement DI Sheather wrote that the creation of an audit report involves "using special search techniques" in order to make a new record of information. He clearly stated that the Computerised Operational Policing System ('COPS') system is capable of being audited. DI Sheather wrote that a document of this nature would usually only be created by officers in the course of routine auditing for corruption prevention or as part of complaint investigations under Part 8A of the Police Act 1990. His view, it seems to me, while acknowledging that producing such a document may not common be for the purposes of routine policing, overlooks the Respondent's obligations to identify information that addresses an access application. Furthermore, the Respondent's submission fails to acknowledge an important difference between the old FOI Act and the GIPA Act, that information in a database held by an agency is "government information" in a "record" for the purpose of the GIPA Act, to which a member of the public has a legally enforceable right of access, subject only to Schedule 2 of the Act and the public interest test: see s.4 and cl. 10 of Schedule 4 to the GIPA Act.
I agree with the view of the OIC that the need to compile this information by conducting a search or printing an audit report does not constitute the creation of a new document for the purposes of s.75 of the GIPA Act. The Respondent had in fact created an 'audit report', it appears, as a summary of its search for information relevant to Items 1-5 of the access application.
Somewhat inconsistently it seemed to me, the Respondent had accepted that the request for information in Items 1-5 of the application was a request for the computer printed audit trails showing all people who have conducted searches for the information identified in Items 1-5 using COPS.
I was provided, on a confidential basis, with a copy of the 'audit report', which, it seemed to me was no more than the extraction of the COPS information held and 'top and tailed'.
I therefore have considered the 'audit report' to be the information held by the Respondent relevant to Items 1-5 of the applications.

Tribunal's process

In deciding whether to release information, the Tribunal must decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s.13 of the GIPA Act requires the Tribunal to undertake the following steps: identify the relevant public interest considerations in favour of disclosure identify the relevant public interest considerations against disclosure. determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.
Because the Respondent bears the onus of justifying its decision to refuse the Applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

Public interest considerations in favour of disclosure

Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure.
The OIC submitted that, in addition to the general public interest in favour of disclosure, there were other considerations in favour of disclosure. Firstly, disclosure of the information could reasonably be expected to promote accountability and transparency of NSWPF in exercising its law enforcement functions, in particular that disclosure would contribute to accountability and transparency of the audit process and around use of the COPS system. The Respondent accepted that disclosure of the information may promote transparency of NSWPF in exercising its law enforcement functions by revealing whether police have accessed the personal details of a person on COPS.
Secondly, the OIC submitted that disclosure of the information could reasonably be expected to reveal or substantiate whether or not an agency or official has engaged in misconduct or negligent, improper or unlawful conduct. The Respondent submitted in that regard that the release of information sought in Items 1-5 of the application could enable the Applicants to confirm whether police have accessed any of the Applicants' personal details. This seems to me no more than a statement of precisely what the Applicants seek. DI Sheather's evidence would suggest that COPS information can only be accessed if there is a proper reason for doing so and that auditing the system is a corruption prevention strategy. Importantly, officers are required to justify their COPS access. However, the Respondent submitted that release of such information would not "substantiate whether or not an agency or official has engaged in misconduct or negligent, improper or unlawful conduct" and that information showing whether a person has conducted a search of a person's details does not, of itself, establish there has been misconduct, negligent or improper or unlawful conduct or that the access was for an unauthorised purpose. I agree with the OIC that this is a narrow construction of this consideration and it seems to me that access outside the strict criteria identified by DI Sheather (discussed below) may indeed be of concern.
I accept that these two considerations identified by the OIC apply, in addition to the general public interest in favour of disclosure.

Public interest considerations against disclosure

The public interest considerations against disclosure are limited to those set out in the Table to s.14 of the GIPA Act.
In Commissioner of Police v Camilleri [2012] NSWADTAP 19 ('Camilleri') the Appeal Panel considered that the s.14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government": at [26].
The Respondent made detailed submissions in this regard. In nearly every aspect of its submissions though it relied on cases relevant to the old FOI Act. While the Appeal Panel in Camilleri indicated that the GIPA Act included many provisions that had similar terms to the old FOI Act, nevertheless, although previous case law had some ongoing usefulness, care was to be taken to ensure that the paradigms set by the GIPA Act are not undercut or lead to a mistaken statutory construction of the GIPA Act: at [8].
Each case must be considered on its merits in all of the circumstances. Despite the Respondent's submissions to the contrary, a decision to release a type of information in one case does not have the effect of setting a precedent that all future applications for the same type of information must necessarily have the same outcome.
The Respondent relied on a number of bases upon which it claimed there were public interest considerations against disclosure, namely that disclosure could reasonably be expected to prejudice:

the effective exercise by an agency of the agency's functions: Table, 1(f)
the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed): Table, 1(h)
the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law: Table, 2(b)

"Could reasonably be expected to" has been held to mean "something which is more than a mere, risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]).
"Prejudice" under the GIPA Act has been held to have the same meaning as under the FOI Act, which is its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

Disclosure could reasonably be expected to prejudice the effective exercise by an agency of its functions: Table, 1(f)

The missions and function of NSWPF are set out in s.6 of the Police Act 1990 and include the prevention and detection of crime, the protection of persons from injury or death or damage to property and the provision of essential services in emergencies.
DI Sheather described the operation of the COPS system. COPS was introduced to the NSWPF in 1994 as the method of capturing, storing and analysing operational information and intelligence on an organisation wide basis. Since this time, information stored within COPS has been accessible to operational police and unsworn members. The Roads and Traffic Authority (RTA) System is also available both indirectly via COPS and directly through the RTA system4. COPS enables members of the NSWPF (hereafter referred to as officers) to record and enquire on the details of any persons, organisations, locations, objects and vehicles that are of interest to police. Any of these become of interest to police when they are involved in criminal or non-criminal activities (the details of which are also recorded) which come to the attention of police during the performance of their duties. A COPS event is created when an officer enters information into the COPS system after attending to a criminal or non-criminal activity (and which is not a purely internal administrative matter). Each event is given a unique number and includes information about the location, what occurred, the names of the parties and objects such as weapons and cars etc. It will also contain what action was taken by police, whether criminal charges resulted, or whether an apprehended violence order was applied for. Officers may later enquire on an event recorded in COPS whether it was an event submitted by themselves or another officer. Police do not record in COPS things like routine patrolling, conveying prisoners, general conversations with members of the public, delivery of exhibits, attendance at court, or routine resource requests. A COPS event may also record a warning that is relevant to the safety of, or of importance to, Police who have to attend the particular address or deal with a specific person in the future. For instance, Police may record that a person has a mental illness; has previously used a weapon; has been involved in domestic disputes; or is reported as a missing person. An event may record that a location is occupied by a violent criminal, or is derelict and attracting drug users. COPs also links to licensing information so that the fact that a person holds a firearms licence, or that an address is a safe storage address for firearms is available by accessing COPS.
DI Sheather wrote that the NSWPF uses COPS to record police activities (including reported criminal incidents), data on police action, and other incidents attended by, or reported to, police. COPS also contains information which has been provided to Police on a confidential basis by other agencies or members of the public.
He wrote that the ability to access COPS is of great value to operational police officers in the course of performing their duties in relation to public safety and law enforcement. In discharging their functions, individual officers are regularly required to undertake searches of the COPS system using parameters such as a person's name, address or vehicle registration number. Such searches are undertaken in a wide range of situations relevant to routine police functions. Each time officers undertake a search of COPS (or enter information into COPS), they are required to log in and acknowledge a warning in relation to the rules governing the use of COPS. NSWPF utilises a range of monitoring of the use of COPS, including conducting audits of COPS usage by officers.
The Respondent submitted that the use of COPS by police to access and enter information is a key part of the investigatory methods employed by the NSWPF in discharging its functions and that the disclosure of the audit report could reasonably be expected to prejudice the effective exercise of its functions in the following ways, which were discussed at [58]-[61] of the open statement of DI Sheather:

The Applicant could discern from the results of an audit report whether particular conduct had come to the attention of or been reported to NSWPF by making an application, or series of applications specifying a particular date or location. The individual could discern whether any officers accessed or searched details relevant to them on or at a time shortly after they were engaged in the relevant conduct. Therefore, disclosing the mere fact of whether their details have been accessed could allow persons to deduce if they are under investigation.
The release of an audit report could enable a person to deduce the nature of investigations that have been conducted, by releasing the names of officers who conducted COPS checks on the Applicant. The Applicant could deduce the nature of investigations by virtue of the command the relevant officer was attached to. For example, if all officers were attached to the Gangs Squad, or Drug Squad or Professional Standards Command.
The release of an audit report could compromise the supply of confidential information to the agency. This is because Applicants could seek an audit report for specific days or times and, from the provision of that information confirming their details were accessed by police at the relevant time, could conclude that conduct only known to a particular person or persons was reported to police. If the public was aware that a person could, through an application under the GIPA Act, be given information about the days and times a person's details were accessed by police, it would reasonably be expected to prejudice the future supply of information to the agency as persons would be reluctant to provide information because they could be identified as the reporter in situations where conduct was only known or observed by a limited group of persons.

In Camilleri the Appeal Panel addressed the approach to be adopted in matters which rely on s.14 Table considerations: 26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case. …
The Respondent, referring to Camilleri, submitted that the s.14 considerations are to be examined at a "broader operational level" and that "it would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation." The Respondent submitted it was therefore not required to show that an investigation may actually be compromised in this case. This may be so, at this stage.
The Applicants submitted that the risks alleged in DI Sheather's open statement are mere speculation and that, if accepted, an untenable position would be created whereby audit material would in every instance be unobtainable in any GIPA application by relying on the grounds of s.14 as stated, namely (1)(f), (1)(h) and (2)(b). To have that effect would be contrary to the presumption in favour of disclosure identified at s.5 of GIPA Act.
The Respondent conceded that, in accordance with approach identified in Camillieri, the specific aspects of the case should not be considered at the s.14 stage. The OIC's view was that contrary to the Appeal Panel's statement in Camilleri at [26], the GIPA Act requires an assessment of the particulars of the present situation at the s.14 stage of the public interest test. While this approach may have some attraction to me, I am bound by the decision of the Appeal Panel.
The OIC had expressed the view however that the information should be released, unless the Applicants were under investigation. The Respondent disagreed. If the Respondent were to determine an application on this basis, any future Applicant who is refused access to audit information could deduce from that information that they are under actual investigation by the NSWPF.
The Respondent put forward a number of hypothetical scenarios, which in effect raise a "mosaic effect" argument, although the Respondent disagreed with the OIC's characterization of its submission, which it appeared, was that that, whenever a COPS audit report is requested, the appropriate response is to refuse access. The Respondent instead submitted that by recognising the "mosaic effect", referred to in Saleam v Commissioner of Police, New South Wales Police Force [2002] NSWADT 40, the Respondent is able to consider an Applicant's motives for making the application under s.55(l)(b) when such motives are apparent.
I accept, for the purposes of identifying public interest considerations against disclosure, that, generally, it could reasonably be expected to prejudice the effective exercise by an agency of its functions if audit trails of COPS access is released.

Disclosure could be reasonably expected to prejudice the conduct, effectiveness or integrity of investigation conducted by an agency by revealing its conduct or results: Table, 1(h)

The Respondent submitted that this public interest consideration is effectively the same as the exemptions in cl.16(a)(i) and (ii) of Sch 1 to the FOI Act. It relied on GU v Department of Corrective Services [2003] NSWADT 176, where DP Hennessy, in denying access to copies of psychological tests the Applicant had undertaken stated at [20]: If GU were entitled to the test documents and the scoring keys, then any member of the public making an application under the FOI would be entitled to those documents. Those documents would tell a person not only the content of particular tests and the scoring keys (many of which are publicly available) but also the tests which the agency uses and the order in which those tests are administered. This information could reasonably be expected to undermine the validity of the tests. The public interest considerations do not favour disclosure because these tests are extremely valuable in the assessment and treatment of sex offenders. Any diminution in their validity is not in the public interest.
The Respondent submitted the same would apply here; if the audit reports were released in this case, it might lead to a situation where other Applicants are entitled to the release of audit reports under the GIPA Act. It seems to me in submitting this 'floodgates argument' the Respondent overlooks the obligation of the Tribunal to determine each matter on its facts in the process of weighing the considerations in favour of, and against disclosure at the s.14 stage: Camilleri at [26].
Further, I agree with the submission of the OIC view that although there is similarity in the wording, the important difference is that the FOI Act referred to an exemption, whereas the GIPA Act refers to a consideration. This means that under the GIPA Act, while such a consideration could apply, it may not carry sufficient weight to override the public interest considerations in favour of disclosure. Therefore, because of the different construction, the result of an exemption applying under the FOI Act (i.e. non-disclosure of information) may not have the same result as when a GIPA consideration applies, even though the provisions may share similar wording. The considerations in s.14 of the GIPA Act are not treated in the same way as exemptions under the FOI Act.
The Respondent also submitted that the existence of the type of audit document sought by the Applicants is unlikely to be known to members of the general public who are not former police officers. As I have observed above, the creation of the 'audit report', is no more than top and tailing the COPS search results. The Respondent makes no secret of its COPS database. DI Sheather's open statement described its operation in detail. I therefore reject the Respondent's submission there is no public interest in the release of a type of document usually created by NSWPF for the purpose of corruption and complaint investigations. I accept however that disclosure could be reasonably expected to prejudice the conduct, effectiveness or integrity of investigation conducted by an agency by revealing its conduct or results, for the reasons outline by DI Sheather in his open statement and referred to above.

Disclosure could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law: Table, 2(b)

The Respondent submitted that this public interest consideration is effectively the same as the considerations in the s.4(1)(a) and 4(1)(e) exemptions of Sch 1 to the FOI Act. In that context, the Tribunal found the basis of the exemption is that there is a "public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods": Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 at [17] ('Desmond') and UC v Commissioner of Police, NSW Police [2005] NSWADT 272.
The Respondent submitted that the use of COPS by officers to search a person's details is a key part of the investigatory tools employed by police in the prevention, detection and investigation of contraventions or possible contraventions of the law. The Respondent submitted there is no public interest served by members of the public being provided with information about the dates and/or times upon which a person's details may have been accessed by a member of NSWPF. Applications could be made for mere curiosity and the provision of such information could prejudice the enforcement of the law in the ways outlined in [31] of DI Sheather's open statement. The GIPA Act obliges agencies to consider each access application on its own merits. I agree with the view of the OIC that to respond to an application by adopting a presumption that an overriding public interest against disclosure exists when the information does not fall into one of the classes in Schedule 1 is not an appropriate approach and is not helpful in the consideration of all the circumstances according to the merits of each individual application.
The Respondent also submitted that whilst on its face, the release of an audit report may only appear to confirm or deny whether a particular search has or has not been undertaken, the information could be used by the recipient to deduce whether information has been supplied to, or come to the attention of police which would prejudice the ability of NSWPF to prevent, detect and investigate contraventions or possible contraventions of the law. It relied on Re Anderson and Australian Federal Police (1986) 4 AAR 414 ('Re Anderson'), where DP Hall at [36] said:
1. A document may disclose methods or procedures either by specifically referring to or describing them or by providing information from the nature of which the methods or procedures employed may be capable of being inferred. Thus, the disclosure of a document containing information that, on the face of it, is purely factual, may nevertheless be information known only to a chosen few members of a particular group. To reveal that information may disclose the existence or identify a confidential source of information in relation to the enforcement of administration of the law. It may equally serve to confirm what may otherwise only be suspected, namely, the methods or procedures for preventing or detecting possible breaches or evasions of the law employed by the police in order to meet a perceived threat. I agree, in this regard, with the views expressed by a differently constituted Tribunal in Re Mickelberg and Australian Federal Police (1984) 6 ALN N176.
The Respondent cited Re Anderson with respect to deducing the methods and procedures employed by agencies to achieve their objects and the risk that such methods and procedures may be less effective if the person has authoritative knowledge of them. However, in this application, the Applicants already have the relevant knowledge of these methods and procedures. The OIC noted that any weight given to the consideration arising from this argument would be substantially diminished once the personal factor, namely that the Applicants are already aware of the methods and procedures employed by the Respondent as a result of their previous employment with it, are considered - whether in the s. 14 stage or in the s.13 stage.
The Respondent submitted that disclosure of an audit report could reasonably be expected to prejudice detection and investigation of a contravention or possible contravention of the law by compromising the supply of confidential information to the agency and referred to Director General, Department of Education & Training v Mullett & anor [2002] NSWADTAP 13, where the Appeal Panel said in relation to confidential information under cl.13(b)(ii) of the FOI Act: In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation... The question then is, would disclosure of the information sought impair (ie damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...
The above passage was cited at [28] in Camilleri by the Appeal Panel, which went on to state at [33]: In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received.
As referred to in the open statement of DI Sheather, NSWPF treats, and requires all officers accessing COPS to treat information contained on COPS confidentially. Clause 75 of the Police Regulation 2008 requires officers to treat information which comes into their knowledge in an official capacity confidentially. NSWPF has in place numerous mechanisms to reinforce to officers that information on COPS is to be treated confidentially. COPS contains information provided to police confidentially by informers, and other information officers treat confidentially to preserve the integrity of investigative methods.
DI Sheather wrote that an audit report is usually created solely in the course of corruption prevention or complaint investigations. Documents created for the purpose of corruption prevention or complaints are also treated confidentiality by NSWPF. While the disclosure of an audit report may not disclose specific information supplied to, or held by, NSWPF, the mere disclosure of information that an officer has accessed a particular name or location could reveal the fact that information has been supplied to police confidentially. While there may be limited circumstances in which an audit report is created the detailed evidence of DI Sheather is to the effect that COPS is a repository of information about police activities.
I accept that generally, disclosure could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law.

Balancing the public interest test

The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the withheld information, paying due regard to the principles in s.16 of the GIPA Act. This requires me only to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47].
The GIPA Act does not provide a formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council: at [70].
As stated at [21] in Camilleri, at the s.13 stage, it is proper to have regard to "the specific aspects of the instant case." The s.14 Table also requires that the consideration is whether that disclosure of the information could reasonably be expected to have one or more of the effects relied upon in the particular case, as well as generally.
To some extent there is some overlap in this approach with the consideration of the Applicant's personal factors. Section 55 of the GIPA Act expressly allows the decision-maker to take into account an Applicant's identity and relationship with another person and motives for making the application as factors against, as well as factors in favour of disclosure. However the personal factors can only be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to, relevantly, in Table, 2(b).
The Applicants' motives for making the access application are stated in the application to the Tribunal as follows: my wife/husband and I "believe there has been unlawful access to our information and possibility the generation of a false report." The Applicants were clearly disappointed with the outcome of the complaint and, it appears, have a general distrust of the Respondent. From the submissions on their behalf it was clear that they consider that disclosing the information could possibly reveal or substantiate that members of the NSWPF have engaged in misconduct or negligent, improper or unlawful conduct. This is a serious allegation and I would attach significant weight to such an assertion if it were borne out.
The OIC had identified the personal factors it considered to be relevant, namely that the Applicants are former police officers, who have knowledge of COPS and are aware that audit trails are generated each time an officer conducts a search; and that the Applicants suspect there has been unauthorised access of COPS by police officers because of an incident on 29 October 2009. They believe access to these audit trails would be likely to either confirm or dismiss that suspicion. The Respondent submitted however that the fact that the Applicants are former police officers should not be treated as a factor in favour of providing the Applicants with access to the information. The Respondent submitted that the fact that a person may have a better understanding of the information sought (in this case, on account of having worked as a police officer) is equally irrelevant and should not be taken into account as a factor in favour of disclosure. Treatment of that factor as being favourable could lead to a situation where persons employed, or formerly employed, by a particular agency consider they are more entitled to information under the GIPA Act than other persons.
The fact that a person is or has been a police officer does not entitle that person to be treated any differently to any other member of the public for the purpose of determining an application under the GIPA Act, and is not, of itself, a factor in favour of providing them with information. However, the OIC submitted in this instance that the knowledge acquired by the Applicants about various Police documents and processes during their time working the NSWPF is a factor to be considered in deciding this application, particularly in relation to the justifications put forward by the Respondent regarding the expectation that prejudice could be caused if the information is released. This is not to say that the Applicants are being "treated favourably" because they were formerly employed by the Respondent, but that the knowledge that they have, in this case as a result of their former employment, will affect the weight of the arguments put forward by the Respondent. The Respondent agreed with this submission by the OIC, but did not accept that there were any relevant personal factors in this matter. There is no doubt that the Applicants' position as former police officers does not entitle them to any preferable consideration.
I have accepted that, in addition to the general public interest in favour of disclosure, disclosure of the information could reasonably be expected to promote accountability and transparency of NSWPF in exercising its law enforcement functions, in particular that disclosure would contribute to accountability and transparency of the audit process and around use of the COPS system and that disclosure of the information could reasonably be expected to reveal or substantiate whether or not an agency or official has engaged in misconduct or negligent, improper or unlawful conduct. I have attached significant weight to these matters.
In addition I have found that disclosure of the information could reasonably be expected to prejudice the effective exercise of Police functions, could reasonably be expected to prejudice the conduct, effectiveness or integrity of investigations conducted by the Police, and could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. These also are significant matters.
The Respondent referred to Hall v Department of Premier and Cabinet [2012] NSWADT 46 where, at [45] DP Higgins, referring to the 'could reasonably be expected to have the effect' enquiry simply calls for an objective assessment on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. She acknowledged that ultimately it is a question of fact.
The Respondent accepted that it is conceivable that there could be relevant personal factors of an application or relevant public interest considerations which favour the release of an audit report, for example, where disclosure could reasonably be expected to reveal or substantiate that a member of an agency has engaged in misconduct or unlawful conduct. However, the Respondent submitted that the public interest considerations against disclosure under section 14, clauses 1(f), 1(h) and 2(b), when considered generally, outweigh the public interest factors in favour of release in this case.
The Respondent invited attention to alternative avenues for dealing with complaints about alleged police misconduct, such as under Pt. 8A of the Police Act 1990 and under the Police Integrity Commission Act 1996. The Respondent submitted that it is open for the Applicant to seek redress by other means more appropriate than through seeking review before the Tribunal under the GIPA Act. I do not agree that this absolves the Respondent of its responsibilities under the GIPA Act. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against its disclosure: s 9(1) of the GIPA Act. In my view, that there may be an alternative avenue as suggested by the Respondent is irrelevant in considering an application under the GIPA Act.
I was referred to Desmond, another decision under the FOI Act. There the Applicant, who was a serving police officer, sought access to documents held by Internal Affairs and claimed he sought the documents to pursue a complaint to the Ombudsman. The Tribunal there found that that was not sufficient to override the public interest against disclosure. However, under the previous FOI legislation, once an exemption was established the onus was on the Applicant to demonstrate that the public interest in favour of disclosing the document was sufficient to override the public interest on which the exemption is based; this onus is reversed under the GIPA Act and there is now a presumption in favour of disclosure.
As to the Applicants' suspicion that there had been unauthorised access of COPS, the Respondent noted that the Applicants assert that there may have been unauthorised access to information leading to the events on 29 October 2009, but seek information for a period commencing 9 September 2009 with no specified end date. The access applications were lodged on 23 September 2010 and, therefore, the time period sought is more than one year. The Applicants' motive for making the application appears to relate to a belief or suspicion that there may have been unauthorised access to personal details or a "false report created." The Respondent submitted that mere suspicion that there may have been unlawful access to personal details or a "false report" created, is not a persuasive reason that would, on balance, outweigh the public interest considerations against disclosures upon which it relied. This is particularly so, given that the request for information is not confined to a timeframe related to when the alleged improper conduct is said to have occurred.
I have taken into account the background to the concerns of the Applicants, namely in relation to the events of October 2009. As discussed above, the access application is broader than the matters in relation to those events, and the Respondent, properly, considered the application to relate to all the information it had from 1 September 2009 until the date of application. I think the information from 1 September 2009 to 29 October 2009 is in a different category to that in respect of the later period; the weight to be given to the public interest considerations in respect of the earlier period is greater than that for the later period.
In weighing up the public interest considerations for and against disclosure outlined above, I find the Respondent's submissions in respect of the earlier period are not sufficiently persuasive for it to have discharged its onus under s. 105 of the GIPA Act. I find that the public interest considerations against disclosure, on balance, do not outweigh the public interest considerations in favour of disclosure. Accordingly, there is not an overriding public interest against disclosure to the Applicants of the information sought in Items1-5: s.13 of the GIPA Act.

DECISION The decisions under review are set aside. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 27 February 2015 - Release for publication. 02 March 2015 - Release for publication DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2015

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cited By (5)