Betzis v Commissioner of Police

The legislative context

1. The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

Overriding public interest against disclosure

1. 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). 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 disclosure" (s 9). There are two situations in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. Schedule 2 sets out information of particular agencies which is "excluded information". Clause 1 of Schedule 2 to the GIPA Act specifies that information relating to the "judicial functions" of a "court" is "excluded information". The Commissioner submits that the Coronial Brief falls within the definition of excluded information. The Commissioner also submits that parts of the E@gle.i information is also excluded information. The Commissioner submits that the remainder of the E@gle.i information which has not been released to Ms Betzis falls within the second situation in which there will be an overriding public interest against disclosure.
2. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a table in s 14 of the GIPA Act.
3. In the second situation, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.
4. In this application, the respondent refers to public interest considerations set out in the table in s 14 and submits that those considerations outweigh the considerations in favour of disclosure. These largely relate to the investigative functions of the NSW Police Force.
5. I will return to deal with these matters later in these reasons. First, however, another basis upon which the Commissioner submits the application should be dealt with needs to be addressed.

Refuse to deal

1. Shortly before the hearing in this matter the Commissioner became aware, as a result of evidence filed by Ms Betzis, that the majority of the information contained in the Coronial Brief has already been provided to her through other avenues. From the evidence of Ms Betzis it appears that the Coroner released a copy of the Coronial Brief to her mother. In addition, and more importantly, Ms Betzis herself has been provided with the majority of the Coronial Brief through other proceedings.
2. Ms Betzis had sought review by this Tribunal of a decision made by the Commissioner of Victims Rights. Ms Betzis had made an application for victims support as an eligible "family victim" but was denied support as she was unable to establish that her father died due to an "act of violence" as that term is defined in the relevant legislation. That decision was affirmed by the Tribunal on review. As part of the Tribunal proceedings Ms Betzis received various documents in response to a number of summonses which had been issued at her request. Ms Betzis was also provided with certain documents under s 58 of the ADR Act.
3. The Commissioner sought and was provided with partial access to the Tribunal's file in the victims support matter. The solicitor for the Commissioner states that included in the file are two bundles of documents which together comprise almost the entirety of the Coronial Brief. Some documents contained in the Coronial Brief are also contained within the s 58 bundle of documents. The Commissioner notes, however, there are some differences between the copy of the Coronial Brief in the Tribunal file and that tendered on a confidential basis by the respondent in the current proceedings. Details of those differences have been provided to the Tribunal on a confidential basis.
4. The Commissioner also notes that there were related Appeal Panel proceedings in relation to the decision of the Tribunal concerning victims support but that the Commissioner had not been able to review the Appeal Panel file. The Commissioner submits that, for the purposes of making my decision in the present application, I should have available to me the files in the Tribunal and Appeal Panel proceedings. The Commissioner further submits that, in light of the documents contained in the victims support file, the fact that the Coronial Brief has been made available to Ms Betzis through separate proceedings provides a basis upon which the Tribunal could find that the correct and preferable decision is to refuse to deal with the present application under the GIPA Act to the extent that it extends to documents to which Ms Betzis has already had access.
5. In accordance with s 60 of the GIPA Act an agency can decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(d) is relevant to this application and provides: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): … (d) the information is or has been the subject of a subpoena or other order of the court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order.
6. A "court" is defined in the GIPA Act to include a tribunal.
7. In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel considered the approach to be taken when reviewing a decision to refuse to deal with an access application and observed at paragraphs [43] - [45]: 43. Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)). 44. Provisions like this work to the benefit of access applicants who only have a GIPA Act application as their means of getting access to government information of interest to them. They tend also work to the benefit of first-time or new applicants over repeat applicants. 45. For these reasons, it can be said that the objectives of the GIPA Act are advanced, in particular the object set out at s 3(2)(b): It is the intention of Parliament: … (b) 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.
8. In Collins v Department of Finance, Services & Innovation [2018] NSWCATAD 60 at [31] the Tribunal stated that the relevant question for consideration in regard to s 60 is whether or not the applicant has previously been provided with access to the information. At the hearing before me Ms Betzis acknowledged that she had received some documents in response to the summonses issued in the victims support proceedings in the Tribunal. I am therefore satisfied that she has been provided with access to some of the information which she seeks in these proceedings.
9. The next issue to be determined is whether I should exercise the discretion to refuse to deal with the access application in so far as it relates to the information with which Ms Betzis has already been provided. The mere fact that some information has been provided to her does not necessarily mean that the discretion should be exercised in the Commissioner's favour. In Danis the Appeal Panel stated at [49]: In our view, the Tribunal when reviewing decision to invoke a s 60(1) should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources. In the case of decisions founded on s 60(1)(d), the restrictions that apply to party use of subpoenaed material might be relevant, as well agency considerations in relation to respect for court orders. This is not intended to be an exhaustive statement of the matters to be taken into account in any particular case. We accept that there may be factors of a personal kind, related to the particular application and the access applicant's personal circumstances, that may also be relevant.
10. The Commissioner submits that this reasoning is of relevance in the present case. He submits that "systemic" considerations, namely promoting the efficient administration of the GIPA Act and avoiding wasteful deployment of limited resources, would weigh in favour of the exercise of the discretion to refuse to deal with the application in so far as it relates to those documents. That submission, cannot necessarily be sustained in the present proceedings where the decision under review was not made on the basis of s 60(1)(d) (that being a matter which only arose many months after the review application was filed in the Tribunal when the Commissioner became aware of the victims support proceedings) but on a full consideration of the information sought and the principles to be applied. Indeed, prior to 9 September 2019, the case before the Tribunal as put by the Commissioner proceeded on the basis outlined above in relation to an overriding public interest consideration against disclosure. In these circumstances the need for efficiency and the avoidance of the wasteful deployment of resources must, as a matter of practical reality, carry little weight.
11. The Commissioner also notes that restrictions that apply to party use of subpoenaed materials may be relevant to the exercise of the discretion. This is particularly the case as no limitations can be placed on the disclosure of documents released under the GIPA Act. The Commissioner states that information contained in the Coronial Brief includes sensitive and highly confidential information, graphic pictures and personal information of many individuals. The Commissioner notes that the Coroners Court has not consented to the Coronial Brief being released to Ms Betzis.
12. At the hearing, Ms Betzis did not make separate submissions on the issue raised by s 60 (1)(d) other than to reiterate her belief that the police investigation into the death of her father was defective. The Commissioner accepts that the information sought by Ms Betzis relates to her father and that she has a personal interest in seeking disclosure of information relating to the circumstances surrounding his death. The Commissioner also notes Ms Betzis's belief that the investigation undertaken by the NSW Police Force was incomplete.
13. While it is apparent that Ms Betzis has been provided with some information contained within the Coronial Brief, it is not entirely certain from the submissions provided by the Commissioner exactly which information was provided in response to the summonses which would bring that information within s 60(1)(d). The confidential submissions on this issue provided by the Commissioner contain certain matters relevant to the information said to have been provided to Ms Betzis in the victims support proceedings. Ms Betzis, of course, is not privy to that information and has therefore not had an opportunity to respond in detail to the submissions made by the Commissioner. In addition, while not doubting the information supplied by the Commissioner, I am not in a position to make an assessment of which information has been previously released to Ms Betzis and which information remains to be considered. While urged to do so by the Commissioner, I have not sought access to the Tribunal files relating to the victims support matters as there may well be confidentiality and privacy issues that would arise from taking such course. Furthermore, procedural fairness issues may arise as a result of inquiries made by me which would then have to be raised with the parties, and in particular Ms Betzis, which would unnecessarily prolong the proceedings.
14. In light of the matters outlined above, in my view, the correct and preferable decision is for the Tribunal not to exercise its discretion to refuse to deal with the application to the extent that the documents in the Colonial Brief have already been made available to Ms Betzis in the victims support proceedings. The access request will therefore be determined in accordance with whether there is an overriding public interest against disclosure.

Excluded information

1. Ms Betzis is seeking access to the Coronial Brief in relation to the investigation of the death of her father. The evidence of Detective Senior Constable Anthony Cordina is that he was a member of SF Burston which was established to investigate the death of Mr Streeter. He states that the officer in charge was Detective Sergeant Peter Daly and it was D/Sgt Daly who prepared the brief for the Coroner. His evidence is that, following the investigation, a brief of evidence was compiled by the NSW Police Force and provided to the Coroners Court on 24 May 2016.
2. The information provided by the Commissioner is that a Coronial Brief typically contains a statement prepared by the officer in charge giving an overview of the investigation, summarising the evidence collected and offering his or her opinion as to the matter and cause death for the benefit of the Coroner. Relevant documents and exhibits are attached to the statement.
3. Ms Betzis is seeking access to the copy of the brief held by the NSW Police Force. DSC Cordina states that the version of the brief held by the NSW Police Force does not contain [NOT FOR PUBLICATION]. He states that these documents are listed in the index to the brief and believes that they would have been included in the brief provided to the Coroner. [NOT FOR PUBLICATION]
4. The Commissioner submits that the information contained in the Coronial Brief is "excluded information". The Commissioner maintains that this is so even though Ms Betzis has had access to most of the information in the Coronial Brief through other avenues.
5. Government information can be sought and obtained through a variety of means. The fact that information may have already been released to a person in other circumstances does not change the character of the information as "excluded information" under the GIPA Act. The provisions which apply to the characterisation of the relevant information are to be found solely within the GIPA Act. The issues for determination concern whether or not under that Act the information is "excluded information".
6. The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of and against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information (Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41]). "Excluded information" is defined as being information "that relates to any function specified… in relation to the agency".
7. Ms Betzis disputes that the information contained in the documents comprising the Coronial Brief relates to the judicial functions of the Coroner. She submits that at all material times the information maintained its character as evidence obtained through the investigation conducted by the NSW Police Force into the death of her father and was information that was also separately and independently and held by the NSW Police Force. She submits that only information in documents related to the deliberations or reasons of the Coroner to dispense with an inquest that have not already been made public through publication of reasons would relate to the additional functions of the coroner and thereby be characterised as excluded information.
8. The Commissioner submits that the information is excluded information because it relates to the judicial functions of a court (Schedule 1, cl 1). In the definition set out in Schedule 4, cl 1 A "court" includes "a tribunal, a Magistrate and a coroner" and a "function" includes "a power, authority or duty". In relation to a coroner, "judicial functions" is defined as follows in Schedule 4, cl1: judicial functions, in relation to a court, means such of the functions of the court as relate to the hearing or determination of proceedings before it, and includes: … (b) in relation to a coroner - such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009".
9. The expression "relate to" has been held to be one of broad import: see, for example, Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 11. This Tribunal has generally held that the phrase "relating to" and similar expressions is a broad one to be construed with the widest import (Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] - [23]; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]). As the Tribunal noted in Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [15], in each case, the question is the extent to which the information in issue has a connection with the specified function.
10. Part 3.2 of the Coroners Act 2009 confers jurisdiction on coroners to hold inquests into certain deaths of persons. There does not appear to be any issue that the Coroner had jurisdiction to hold an inquest into the death of Mr Streeter. A Coroner who has jurisdiction to hold an inquest concerning the death of a person may dispense with the inquest unless an inquest is required to be held (s 25 Coroners Act). As noted above, a decision was made by the Coroner to dispense with an inquest into the death of Mr Streeter.
11. In deciding to dispense with an inquest the Coroner made findings on the balance of probabilities as to the identity of the deceased, the date and place of the person's death and the manner of death. It was apparent from the Coroner's reasons that she relied upon the results of the police investigation, which would have been contained in the Coronial Brief, to make her decision. I am satisfied that the making of a decision by the Coroner on the basis of the information contained in the papers before her to dispense with an inquest was clearly a function of the Coroner which can be characterised as "judicial" and is therefore a matter relating to the judicial functions of the Coroner within the meaning of the GIPA Act. I am also satisfied that the Coronial Brief was integral to the Coroner's decision-making process and is therefore information that "relates" to the judicial functions of the Coroner. The fact that the document was prepared by the NSW Police Force arising out of its investigations into the death of Mr Streeter does not detract from its character as information prepared for and relied upon by the Coroner in the exercise of her judicial function under the Coroners Act.
12. I am therefore satisfied that the Coronial Brief is excluded information. I am also satisfied on the basis of the email dated 25 July 2019 to the Crown Solicitor's Office that the Coroner does not consent to its disclosure to Ms Betzis. As noted above, the fact that access to most of the Coronial Brief has been provided through other means has no bearing on whether the information is excluded information under the GIPA Act.

The E@gle.i material

1. Ms Betzis also seeks access to the respondent's decision to refuse access in part to information contained in the investigation management system, E@gle.i relating to the police investigation into the death of Mr Streeter. Some documents have been released in full and others have been released in part with reductions. The Commissioner submits that access to the remainder of the documents should be refused either because they contain excluded information of an agency or because there are public interest considerations against disclosure of the information and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

Excluded information

1. The Commissioner states that 64 documents contained in the E@gle.i database relating to SF Burston are duplicated in the Coronial Brief [NOT FOR PUBLICATION].
2. Having perused the relevant documents I am satisfied that the documents are documents which were included in the Coronial Brief. The fact that the documents are also contained in the E@gle.i database does not alter the character of the information in the documents as excluded information. As noted in Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127 the conclusive presumption against disclosure would be rendered largely redundant if it did not extend to reproductions of the information as disclosure of the reproduction will reveal the contents of the excluded information. In those circumstances, it is also excluded information.
3. The evidence of DSC Cordina is that whenever a document is recorded on or transferred into the E@gle.i system a covering sheet is created. The covering sheet summarises or describes the information contained in the document recorded or transferred. Each of the documents contained in the database which are duplicated in the Coronial Brief are stored under a covering sheet. DSC Cordina states that these covering sheets are not ordinarily included in a brief of evidence. While the covering sheets are not documents which were contained within the Coronial Brief, the information contained in the covering sheets reproduces or references or reveals the substance of the excluded information of the Coroner. I agree with the Commissioner that, the information contained in the covering sheets is therefore also subject to a conclusive presumption of an overriding public interest against disclosure.

Balance of material - public interests for and against disclosure

1. In relation to the balance of the E@gle.i material that is not excluded information it is necessary to determine whether there is an overriding public interest against disclosure because there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

Public interest considerations in favour of disclosure

1. In addition to the general presumption in favour of disclosure of government information set out in s 12 of the GIPA Act, the Commissioner identifies the following as considerations in favour of disclosure:

• some of the information is personal information of Ms Betzis; and
• the information relates to an investigation into the death of Ms Betzis's father and her mother has provided written consent to the release of his personal information to Ms Betzis.

1. Ms Betzis states that there is a public interest consideration in favour of disclosure as she seeks to use the information in separate proceedings previously brought in the Tribunal and now in the Court of Appeal concerning the decision of the Commissioner of Victims' Rights that she was not eligible for victims support. She states that it is in the interests of justice for her to be given access to information that would assist her in investigating the death of her father for the purposes of obtaining evidence in support of her contention that he was a victim of homicide. At the hearing she made it plain that she believes there were deficiencies in the police investigation. It can also be said therefore that there is a public interest consideration in favour of disclosure as it is in the public interest to ensure that police investigations are carried out thoroughly and properly.

Public interest considerations against disclosure

1. The Commissioner has identified various public interest considerations against disclosure as set out in the table to s 14 of the GIPA Act on the basis that disclosure could reasonably be expected to: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14 Table, cl 1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (s 14 Table, cl 1(e)); 3. prejudice the effective exercise by the agency of the agency's functions (s 14 Table, cl 1(f)); 4. reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant (whether in a particular case or generally) (s 14 Table, cl 2(a)); 5. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (s 14 Table, cl 2(b)); 6. reveal an individual's personal information (s 14 Table cl 3(a)); 7. in the case of the disclosure of personal information about a child, disclose information that it would not be in the best interests of the child to have disclosed (s 14 Table, cl 3(g)); and 8. constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions s 14 Table, cl 6(1)).
2. Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
3. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment 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 of the provision in terms of probabilities or possibilities or the like.
4. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. 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: Searle Australia Pty Ltd v PIAC."
5. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
6. The public interest considerations in cll 1(e), 1(f) and 2(b) require that there be some relevant "prejudice" to the agency. The term "prejudice" is to be given 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]). The respondent needs to show, however, more than a mere possibility, risk or chance of prejudice and it needs to be based on real and substantial grounds (Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at [22]).
7. The evidence of DSC Cordina is that the E@gle.i system was designed to assist in the management of information in relation to investigations of major crimes. The system allows officers to manage investigations and capture and report on all information gathered during the investigation. He states that in relation to SF Burston, almost every document relevant to or connected with the investigation into the death of Mr Streeter was stored or recorded on the E@gle.i system. Certain items, such as exhibits, were stored separately.
8. DSC Cordina states that the system is not limited to recording information that is used in a prosecution or coronial brief. It also contains other information relevant to the investigation of a crime. Examples of the types of information and evidence stored in E@gle.i are witness and police statements, photographs, investigators' notes, evidentiary material, exhibit records, logs, running sheets, results of forensic examinations, information regarding surveillance footage, warrants, records of communications with other agencies, criminal intelligence and records of inquiries made by police.

Cl 1(f) - prejudice the effective exercise by the agency of the agency's functions

Cl 2(b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law

1. The Commissioner submits that the disclosure of the information contained in all the E@gle.i material (that has not been released to Ms Betzis) could reasonably be expected to prejudice the effective exercise of the NSW Police Force's functions and prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law.
2. As was stated in Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 at [17], the consideration in cl 2(b) operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this consideration is a public interest in law enforcement agencies being able to maintain the integrity of their investigative methods. An actual contravention of the law is not required to exist in order to establish the ground: UC v Commissioner of Police, NSW Police [2005] NSWADT 272 at [33].
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. DSC Cordina states that, although members of the public may have a general awareness and knowledge that police conduct forensic examinations and inquiries, they would not be aware of the specific details of these techniques used by the NSW Police Force. The Commissioner submits that by revealing specific details of the forensic and other investigation techniques, methodologies and protocols used by police, including any limitations or weakness of those techniques, a person may be able to modify their behaviour based on deductions drawn from that material so as to avoid detection or to prevent or prejudice investigations into their conduct. The Commissioner submits that is so even though some information may appear only to confirm whether a particular search was undertaken, communication made or forensic test conducted. This is because that information could be used to deduce whether information has been supplied to, or come to the attention of police, or confirm particular techniques or methodologies employed which would prejudice the ability of the NSW Police Force to prevent, detect and investigate contraventions or possible contraventions of the law: Re Anderson and Australian Federal Police (1986) 414 4 AAR at [36].
8. The information in E@gle.i clearly discloses investigative and other techniques employed by the NSW Police in the discharge of its functions of detecting, preventing and investigation contraventions or possible contraventions of the law. DSC Cordina gave detailed confidential evidence, which I accept, about the nature of the information and the likely effects of its disclosure. I am satisfied that disclosure of the E@gle.i information relating to SF Burston would disclose information relating to forensic and other investigatory techniques, methodologies and protocols used by the NSW Police. I am also satisfied that that such disclosure could prejudice the prevention, detection or investigation of a contravention or possible contravention of the law by disclosing information which could be to the advantage of persons seeking to evade police attention.

Cl 1(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

Cl 2(a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant

1. In addition, the respondent submits that the disclosure of certain information contained in the E@gle.i material could reasonably be expected to prejudice the supply to the NSW Police Force of confidential information that facilitates the effective exercise of its functions and/or reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant. These considerations largely overlap and are dealt with together.
2. The basis of this consideration is the public interest in "maintaining a flow of information from informants, as without such information the police and other government authorities would be severely hampered in detecting, investigating and prosecuting breaches of the law": Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 at [16]. In Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80 at [38] the Tribunal stated that "the test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether the agency will be able to obtain such information in future".
3. The Commissioner referred to the decision of Smart AJ in Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 at [69] in the context of considering the previous legislation where his Honour said: When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police.
4. Some of the records in relation to SF Burston include statements obtained from members of the public, as well as other documents such as investigators notes which record information provided by or obtained from the general public in the course of the investigation.
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. Having perused the information, I am satisfied that the public interest considerations in cll 1(d) and 2(a), as supported by the evidence provided by DSC Cordina, are made out in relation to the documents specified by the Commissioner in his submissions.
8. These considerations are compelling and significant.

3 (a) - reveal an individual's personal information

1. The term "personal information" is defined in cl 4(1) of Schedule 4 of the GIPA Act as information or opinion about an individual, whether living or dead, whose identity is apparent or can reasonably be ascertained from the information or opinion. Personal information which has already been publicly disclosed is not caught by the definition (cl 1 of Schedule 4).
2. I am satisfied that a great number of the records in E@gle.i contain personal information about the individuals concerned. In most cases the identity of the individual is readily apparent from the document and relates to the deceased or to the identities of witnesses and members of the public. Much of the information is highly sensitive and was gathered by police in the performance of their investigative functions.
3. In the circumstances, it is my view that significant weight should be given to this consideration.

Cl 6(1) constitute a contravention of a provision of any other Act or statutory rule that prohibits the disclosure of information

1. The Commissioner provided confidential evidence in relation to three documents contained in E@gle.i the release of which could reasonably be expected to constitute a contravention of a provision of an Act which prohibits disclosure of that information.
2. [NOT FOR PUBLICATION]
3. I am therefore satisfied that information contained within those three documents falls within cl 6(1).

Other public interest considerations against disclosure

1. In his submissions the Commissioner also referred to the considerations in cll 1(e) and 3(g) in the Table to s 14. I have not found it necessary to deal with those considerations which related to a small number of documents as the information readily comes within the other claimed considerations.

Balancing the public interest

1. I have found that each of the public interest considerations against disclosure relied upon by the Commissioner is present in this case. These are to be balanced against the public interest considerations in favour of disclosure as set out above.
2. Balancing the competing public interest considerations 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 [70]).
3. In determining where that balance lies the Tribunal is entitled, under s 55 of the GIPA Act, to take into account the personal factors of the application, namely: 1. the applicant's identity and relationship with any other person; 2. the applicant's motives for making the access application; and 3. any other factors particular to the applicant.
4. These factors can be taken into account as matters either favouring access or as factors against providing access. Personal factors of the applicant which are a factor against providing access can only, however, be taken into account in relation to cll 2 to 5 of the Table to s 14. In this case, they are relevant therefore to matters under cll 2(a), 2(b), and 3(a) but not to cl 1 and cl 6 considerations. Under s 55(6), the Tribunal is under no obligation to inquire into, or verify, claims made by an applicant or any other person about the personal factors, but is entitled to have regard to evidence or information provided by them.
5. While s 55 provides that motives are relevant to the issue of determining where on balance the public interest lies, as was stated in Donnellan v Ku-ring-gai Council [2013] NSWADT 115 at [60], that motive must be established on reliable evidence and not by mere assertion.
6. Ms Betzis states that she wishes to obtain the information sought as it relates to her father and she has a personal interest in seeking disclosure of matters surrounding his death. I accept that to be the case. She also states that she believes a serious criminal offence has taken place and that the police have failed to properly investigate her father's death. She believes that there has been corruption and seeks justice for her father. At the hearing the Commissioner sought to characterise Ms Betzis's motive in a less altruistic light.
7. The Commissioner submits that minimal weight should be given to the personal factors referred to in the submissions made by Ms Betzis. This is because of the private pecuniary interest which the Commissioner claims Ms Betzis seeks to promote by accessing the information. Here, the Commissioner refers to the application by Ms Betzis for victims support. Indeed, in her submissions Ms Betzis refers to her proceedings against the Commissioner of Victims Rights as being a "powerful public interest factor in favour of disclosure".
8. The Commissioner referred to several cases in which it has been held that a private, personal interest in obtaining information does not necessarily amount to a public interest: e.g. JY v Commissioner for Police, NSW Police [2008] NSWADT 306; APD v Commissioner of Police, NSW Police Force [2012] NSWADT 42.
9. The Commissioner acknowledges that there may be some overlap between any private financial motive on behalf of Ms Betzis and the broader public interest in the administration of justice in her civil proceedings and in ensuring that the police investigation was thorough, but submits that disclosure of the information sought would have a minimal and incidental effect in promoting any broader public interest.
10. In any event, it appears from evidence given at the hearing that Ms Betzis has not pursued her appeal to the Supreme Court from the decision of the Tribunal which affirmed the Commissioner's decision. I also note that no information has been put before the Tribunal by Ms Betzis which would indicate that the police investigation was incomplete. It certainly appears that the Coroner did not raise any concerns with the investigation.
11. Where then does the balance lie? There is no doubt that the matters put forward by Ms Betzis, particularly as the information relates to the death of father, carry some weight. Her suspicions surrounding the death of father appear to be genuinely held. I am also mindful that she has in fact been given some information in other proceedings and her mother has consented to the release to her of her father's personal information.
12. However, those matters do not outweigh the considerations against disclosure relating to the need to maintain the integrity of police investigations and, in particular, to maintain the ability of the NSW Police Force to carry out its core responsibilities, which includes the investigation of suspicious deaths. There is a clear public interest in ensuring that effective investigative techniques and other police methodologies are not able to be circumvented by criminals. It is also important that the public can be confident that their personal information and information provided to police in confidence is not revealed to the public.
13. I am satisfied that in this matter, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of the disclosure. The correct and preferable decision, therefore, is to affirm the decision under review.

Orders 1. The decision under review is affirmed.

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 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: 03 March 2020