Beryar v Sydney Trains

NCAT Administrative and Equal Opportunity|2024-07-24

Background

The application to review the respondent's decision was filed on 8 March 2024 and within the time limit under s 101(1) of the GIPA Act.
On 8 April 2024 a case conference was held, and the Tribunal made various orders and listed the matter for a directions hearing on 21 May 2024. On 9 May 2024 the respondent released the following documents to the applicant under s 8 of the GIPA Act, providing him with relevant information about the incident for his insurer: 1. Incident Information Management Systems Incident Report. 2. Rail Emergency Management (REM) information. 3. NSW Police Force Request for Information.
On 13 May 2024 the applicant advised the respondent that the information provided does not satisfy his request.
On 16 May 2024 the respondent offered to release a pixelated version of the CCTV footage to the applicant subject to him providing a letter from the insurer confirming that the footage is required for the applicant's insurance claim.
On 17 May 2024 the applicant advised the respondent: "[That's] fine you can provide me with the pixelated footage (where bystanders are visible) for this incident but the parties involved in this incident including the taxi security personals should be visible." I will return to this exchange between the parties, and in particular the applicant's communication to the respondent from 17 May 2024, further below.

On the papers

The parties were given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and I am satisfied that the matter can be adequately determined in the absence of the parties. A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

Confidential material

I made orders for the respondent to furnish a copy of the CCTV footage on a USB to the Tribunal for me to view the footage. The Tribunal made non-publication orders for the USB on 9 July 2024.

Public Interest considerations in favour of disclosure

The respondent submits that the following considerations under s 12(2) of the GIPA Act in favour of disclosure apply: (a) disclosure of the information could reasonably be expected to inform the public about the operations of agencies and their policies and practices for dealing with members of the public; and (c) disclosure of information could reasonably be expected to facilitate the administration of justice by enabling a person to ascertain their rights at law.
The personal factors of the applicant are matters that can be taken into account in favour of providing the applicant with the information sought pursuant to s 55(1) and (2) of the GIPA Act. The relevant factor here is that the applicant is seeking access to the CCTV footage to assist with an insurance claim.

Public interest considerations against disclosure

In this case the respondent relied upon the public interest considerations against disclosure in cll 3(a), 3(b) and 3(f) of the Table to section 14 of the GIPA Act as grounds for refusing access to the information.

Clause 3(a) of the s 14 Table

The issue for determination relating to cl 3(a) is whether the release of the information could reasonably be expected to "reveal an individual's personal information".
The terms "reveal" and "personal information" are defined in the GIPA Act.
Clause 4(1) of Schedule 4 to the GIPA Act sets out the definition of "personal information" as follows: In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
Section 15(b) of the GIPA Act states that agencies must have regard to any relevant guidelines issued by the Information Commissioner when determining whether there is an overriding public interest against disclosure. The Information Commissioner has published Information Access Guideline 4 - Personal Information as a public interest consideration under the GIPA Act October 2023. This Guideline provides examples of what is meant by "personal information" under the GIPA Act, and includes, at paragraph 1.2 "photographs or audio or video recordings, including CCTV footage, which identifies individuals".
Clause 1 of Schedule 4 of the GIPA Act defines "reveal" information to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."
The respondent considered that the CCTV footage requested contains personal information in the form of images of third parties whose identities may be reasonably ascertainable from the information, particularly if released to the greater public.
I have reviewed the CCTV footage. The footage shows the incident involving the applicant's vehicle, but it also shows other vehicles pulling up to the station to collect passengers, several security personnel, and other members of the public waiting for trains. My observation is that the faces and identifying features of many of the persons in the footage are visible and could lead to the identification of the individuals.
The respondent also referred to ss 15 and 73 of the GIPA Act, which provide that an agency is not entitled to impose any conditions on the use or disclosure of information released under the GIPA Act and submitted that the likelihood of third party identities being ascertained would be increased through the release of a copy of the CCTV footage.
I agree with the reasons provided above and find that the public interest consideration against disclosure in cl 3(a) applies in this review.

Clause 3(b) of the s 14 Table

The issue for determination relating to cl 3(b) is whether the disclosure of the information could reasonably be expected to "contravene an information protection principle under the Privacy and Personal Information Protection Act 1998" (the PPIP Act).
Section 4(1) of the PPIP Act defines personal information in the same terms as cl 4(1) of Schedule 4 to the GIPA Act above. Section 18A of the PPIP Act provides that a public sector agency that holds personal information must not disclose the information to a person or other body unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
The respondent submits that none of the exemptions in s 18A apply to the CCTV footage for the following reasons. The disclosure of the personal information of a third party to the applicant is not directly related to the purpose for which the information was collected. The individuals concerned are not reasonably likely to have been aware of the disclosure nor have they been made aware of the disclosure in accordance with s 10 of the PPIP Act as it is not information which is usually publicly disclosed. The respondent considers that the disclosure is not necessary to prevent or lessen a serious and imminent threat to the life or health of any person.
The respondent submitted that: Sydney Trains CCTV security cameras are deployed to ensure the safety and security of network users and staff. Footage held by the agency in this regard is kept securely to protect the personal information of individuals. As disclosure of personal information is not supported by consent and does not fit within any exemption categories described by section 18 of the PPIP Act. The respondent submits that the release of this information is reasonably expected to contravene and information protection principle of the PPIP Act.
These submissions are persuasive. I also note that the third parties in the footage have not consented to the release of the personal information, nor is there any reasonably practical means for the respondent to seek their consent.
I agree with the respondent's submissions and find that the public interest consideration against disclosure in cl 3(b) applies in this review.

Clause 3(f) of the s 14 Table

The issue for determination relating to cl 3(f) is whether release of the information would expose a person to a "risk of harm or of serious harassment or serious intimidation".
The respondent referred the Tribunal to the decision in OTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114, at [77]-[79], where Senior Member Blake SC reviewed and summarised several authorities that have considered cl 3(f) as follows: 77 The issue for determination is whether release of the information would expose people to a "risk of harm or of serious harassment or serious intimidation". It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]; Miskelly at [94]. 78 "Harm", "serious harassment", and "serious intimidation" are not defined in the GIPA Act. Their meaning received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered: AEZ at [89]; Miskelly at [95]. 79 As to "harm", the Tribunal has held that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. A detrimental effect may be to a person's physical, psychological or emotional wellbeing: AEZ at [85]; Miskelly at [96]. Mere discomfort or tension is not ordinarily enough: Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Miskelly at [105].
The respondent submitted that: The Respondent has provided the Applicant with the option of obtaining a pixelated version of the Footage if he provides a letter from his insurance company advising they require the Footage for his claim. The Applicant advised that the pixelated footage would not satisfy his request and has informed the Respondent that he would like the parties involved in this incident including the taxi security personnel to be visible. The Footage shows damage being done to the Applicant's vehicle. The Respondent submits that the release of the Footage could reasonably be expected to be used to ascertain who the perpetrator of the damage is and retaliate. This poses a risk of harm to the individual.
Having reviewed the CCTV footage, I note that it shows an individual damaging the applicant's vehicle. The person's face and identifying features are visible in the CCTV footage. I agree with the respondent that the CCTV footage could be used to identify the perpetrator and therefore potentially enable retaliation. Such retaliation could encompass, for example, posting the CCTV footage online and using social media to shame the perpetrator. This would expose the individual to a possible risk of harm and could reasonably lead to a detrimental effect on the person's physical, psychological, or emotional wellbeing.
I find that the public interest consideration against disclosure in cl 3(f) applies in this review.

Pixelation of the CCTV footage to obscure personal information

The respondent acknowledged that personal information of unknown members of the public is contained within the CCTV footage. In the respondent's submission it was not reasonably practicable to undertake consultation to check whether those persons would consent to the release of their personal information to the applicant in accordance with s 54 of the GIPA Act, as the respondent is unable to identify or contact them. I agree with this submission.
I note that during the course of the proceedings the respondent offered to provide the applicant with a pixelated version of the CCTV footage, subject to the applicant providing a letter from his insurer that footage was required for his claim. As referred to at [28] above, the applicant responded that a version of the CCTV footage pixelated where bystanders are visible would be suitable and that the parties involved in the incident, including the taxi security "personal" should be visible. This communication from the applicant is confusing in several different ways. Firstly, by the reference to taxi security personal. Secondly, although the applicant indicates that he is agreeable to pixelated footage being provided, he does not specify what should be pixelated. I have taken the applicant's reference to "taxi security personal" to be a typographical error and conclude that he really meant to refer to taxi security personnel. I have come to this conclusion because there are persons who appear to be taxi security personnel in the CCTV footage and no other interpretation would make sense. Notwithstanding the lack of specificity as to pixelation, what is clear to the Tribunal is that the applicant seeks for CCTV footage to be provided in which the parties involved in the incident, including the taxi security personnel, should be visible. There has not been any sufficient explanation from the applicant as to why this is the case.
The applicant provided an undated email from his insurer confirming that the CCTV footage was required for the applicant's insurance claim, to assist with liability. The insurer does not specify in the email that the CCTV footage must not be pixelated, and this issue is not mentioned one way or the other. I consider it to be unlikely that the insurer requires unpixellated footage showing the parties involved in the incident, including the taxi security personnel. Even if that was a requirement of the insurer, it would be one relevant consideration to be weighed in the balancing exercise together with the other factors.
I accept that the applicant's insurer requires a copy of the CCTV footage of the incident for review to assist with liability for the applicant's insurance claim. I am not satisfied, on the evidence before the Tribunal, that the applicant's insurer requires unpixellated CCTV footage of the incident where the personal information of the parties involved in the incident, including the taxi security personnel, is clearly visible.
Section 72(1) provides forms of access that may be provided to the information sought by the applicant, such as "by providing a copy of a record containing the information" (s 72(1)(b)). Section 72(2) provides that the agency must provide access in the way requested by the applicant unless one of the exceptions in ss 72(2)(a) to 72(2)(d) applies. There is no evidence before the Tribunal that any of the exceptions in s 72(2)(a) to 72(2)(c) apply. In particular, there is no suggestion that pixelation of the footage would be unreasonably onerous, time consuming or costly for the respondent as per cl 72(2)(a). In fact, it is open for the Tribunal to infer from the respondent's offer to provide pixelated footage to the applicant that this is not the case. In terms of the applicant's request for the CCTV footage to be provided in a form clearly showing the parties involved in the incident, including the taxi security personnel, the exception in s 72(2)(d) relevantly provides that access does not need to be provided in the way requested by the applicant where there is an overriding public interest against disclosure of the information.

Balancing exercise

It is now necessary to attribute weight to the relevant considerations and balance the factors for and against disclosure to determine whether there is an overriding public interest against disclosure. In weighing the competing public interest considerations, I have taken the general public interest in favour of disclosure and the public's legally enforceable right to government information into account. The personal factors of the application are also relevant.
On my review of the information, I agree that the disclosure of the CCTV footage in the form requested by the applicant could reasonably be expected to have the effects referred to at cll 3(a), 3(b) and 3(f) of the Table to section 14 of the GIPA Act, and I give those factors significant weight.
I accept that the operation of ss 15 and 73 of the GIPA Act would mean that no conditions are able to be imposed on the use of the CCTV footage once released and the likelihood of third party identities being ascertained would be increased through the release of a copy of the CCTV footage.
After reviewing the CCTV footage, I consider that the issue of the disclosure of third parties' personal information can be balanced by pixelating or otherwise obscuring the identity of members of the public in the footage. This would protect the identity of those third parties whilst promoting the objects of the GIPA Act, the stated Parliamentary intention for the GIPA Act as well as the general public interest in favour of disclosure of government information (ss 3, 9(1), 12 and 15(a) of the GIPA Act). Therefore, on this basis, the public interest considerations against disclosure in cll 3(a), 3(b) and 3(f) under the Table to s 14 of the GIPA Act of themselves do not outweigh the public interest considerations in favour of disclosure.
It follows that it is appropriate to refuse the applicant's request for the CCTV footage to be provided in an unaltered form, or alternatively, in a form in which the personal information of members of the public is pixelated but not the parties involved in the incident, including the taxi security personnel. The only caveat to this is where the applicant or each of the other persons in the footage provide consent for their personal information within the footage to be released, which applies to the extent of their personal information only.
I am satisfied that the respondent has established that there is an overriding public interest against the disclosure of the CCTV footage in the form requested by the applicant.
I am not satisfied that the respondent has established that there is an overriding public interest against the disclosure of the CCTV footage to the applicant with the personal information of third parties pixelated or otherwise obscured.

Conclusion

The outcome of the Tribunal's decision under the GIPA Act is for the respondent to release the information to the applicant, except for information disclosing the identity of any third party who has not provided consent for the disclosure of their personal information, which is to be pixelated or otherwise obscured.
The correct and preferable decision is therefore to set aside the respondent's reviewable decision and substitute it with this decision.

Orders 1. An oral hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The decision under review is set aside. 3. In substitution a decision is made that Sydney Trains is to grant access to the applicant to relevant CCTV footage at Penrith train station on 2 December 2023, except for information disclosing the identity of any third party who has not provided consent for the disclosure of their personal information, which is to be pixelated or otherwise obscured. 4. The order made on 9 July 2024 under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) relating to the prohibition of publication or broadcast of the contents of the USB containing the CCTV footage is revoked.

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 24 July 2024 - Order 1 reworded. 24 July 2024 - Order 4 - date corrected to 9 July 2024 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: 24 July 2024

The role of the Tribunal

The role of the Tribunal is to decide whether the decision under administrative review is the correct and preferable decision (s 63(1) ADR Act). In determining this question, the Tribunal is to have regard to the material before it, including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) ADR Act).
Section 105 of the GIPA Act places the onus of proof on the respondent to justify its decision.
The correct approach of the Tribunal in determining whether there is a public interest against disclosure (s 13 of the GIPA Act) is to: 1. consider the public interest considerations in favour of disclosure, 2. consider the public interest considerations against disclosure, and 3. determine where the balance lies between them (Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19, [23]-[30]).
This balancing exercise is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation" (Hurst v Wagga City Council [2011] NSWADT 307 at [94]).

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (4)

Cases Cited (4)