Bowyer v Commissioner of Police

Bowyer v Commissioner of Police - [2022] NSWCATAD 254 - NSWCATAD 2022 case summary — Zoe

[8]

Exhibit 1

Chief Inspector Holgate (CI Holgate) deposed that he is the Professional Standards Manager of the Professional Standards Command (PSC) of the respondent and that he has held this role since August 2019. The PSC is the Command responsible for maintaining standards of professional conduct and discipline across the NSWPF. This includes the conduct of particular investigations into police misconduct, preparing policies and procedures governing the management of, and investigation into, complaints, and the provision of advice in relation to disciplinary action to be taken as a consequence of misconduct by members of the NSWPF.
CI Holgate stated that complaints about police misconduct are governed by Pt 8 of the Police Act 1990 (NSW) (the Police Act). PSC does not investigate all complaints of police officer misconduct and most complaints are managed by the Police Area Command (PAC) or Police District (PD) where the officer is stationed. When a PAC or PD received a complaint about a police officer and a decision is made to investigate that complaint, it will often be investigated by a senior police officer at the PAC or PDC, and the findings ratified by a Complaints Management Team (CMT) comprised on the leadership team at that Command. However, in certain circumstances, a PAC or PD will refer a complaint to PSC for investigation. PSC also remains responsible for the overall policies and procedures related to complaint handling and investigation by NSWPF.
CI Holgate referred to the current access application and stated, relevantly: 13. For the purposes of preparing this affidavit I have reviewed documents relating to an application made by the applicant for access to in formation related to a complaint he made about the conduct of officers following his attendances at Inverell Police Station. 14. It is my understanding that some of the information sought by the applicant has been disclosed to him under the GIPA Act. I also understand that the applicant does not challenge redactions applied to a number of documents to delete personal information of third parties and the name of the subject officer of his complaint. The remaining information the applicant seeks to access in these proceedings is contained in a Triage Form and is associated with the handling and assessment of the complaint. 15. I note at the outset that Triage Forms for Part 8A are usually withheld in full, for reasons I set out below. However, in this instance I understand that a redacted copy of the Triage Form was disclosed to the applicant, as it replicated information in the COPS Event Reports which were disclosed to him.
CI Holgate stated that it is a function of the NSWPF to investigate complaints about police officers and Pt 8A of the Police Act sets out the manner in which complaints regarding the conduct of police officers are to be investigated. Under Pt 8A, any person (whether a member of the public or a member of the NSWPF) may make a complaint about the conduct of a member of the NSWPF to the Commissioner of Police, NSWPF (the Commissioner). The Commissioner has delegated most of his functions under Pt 8A and Pt 9 of the Police Act to specific positions and ranks within the NSWPF. This means that assessment, investigation (if required) and any resulting disciplinary action (except removal under s 181D) arising from a complaint will generally be the responsibility of the Commander under whose Command or Unit the subject member of the NSWPF is employed. There are exceptions to this arrangement, for example conflicts of interest, complexity, availability of investigative resources and rank of subject police officers or administrative employees warrant referring the misconduct matter to another Unit such as a Region or PSC.
CI Holgate stated that investigations under Pt 8A are particularly sensitive and must be treated confidentially. The statutory provisions in Pt 8A coupled with the NSWPF policy and procedures provide extensive and comprehensive rules for the way in which complaints are dealt with. These rules are fundamental to the integrity of the investigation process. The provisions of particular importance are: 1. Section 169A, which strictly prohibits members of the NSWPF from disclosing the identity of a complainant, except in particular circumstances; 2. Section 170, which provides that all documents brought into existence for the purposes of Pt 8A are privileged and may not be used as evidence except in specified legal proceedings; 3. Cl 54 of the Police Regulation 2015 (NSW), which also imposes disclosure obligations on police officers that receive complaints; and 4. Cl 76 of the Police Regulation 2015 (NSW), which prohibits, without proper authority, the disclosure of all information which comes to a member of the NSWPF's knowledge in his or her official capacity.
There are also procedures that ensure that complaint information is kept confidential. Triage officers are expected to ensure information is provided to resolution managers securely. Professional Standards Duty Officers (PSDOs) are expected to monitor the security of information handled by resolution managers. Further, Commanders and or managers are required to ensure that systems and procedures for the safe management and storage of complaint information are established and maintained.
CI Holgate stated that when a complaint is received, and individual complaint file is created in the NSWPF's complaints information system, IAPro. Access to IAPro is tightly restricted in order to maintain the confidentiality of the complaints handling process. IAPro is only installed on selected NSW Police computers and requires both individual clearance and the use of a password if an officer or employee of the NSWPF wishes to access the program. Even if an officer or employee has access to IAPro, they will not be able to see all of the information on the system unless they have clearance to view the documents associated with a particular complaint. The LECC has access to IAPro for the purposes of maintaining oversight of NSWPF's complaint handling process.
Following receipt of a complaint, an initial assessment is made and a decision is made as to whether the complaint will be investigated. This involves reviewing the complaint and making an assessment and the assessment is recorded in a Triage Form, which is added to the complaint file. If a decision is made to investigate the complaint, a police officer will be appointed to carry out the investigation. During the period of the investigation, interim risk management action may be taken with respect to the subject member of the NSWPF, including a change in duties or additional supervision. Broadly, and generally, it is essential to withhold information and evidence obtained and created in connection with a complaint from disclosure for three reasons:

[11]

It is essential that members of the NSWPF investigating complaints are able to conduct open deliberations in relation to police officer misconduct and any investigation of such misconduct.
If deliberations and decisions of the NSWPF (for example, the PSC, PAC or PD) were disclosed with respect to their handling of complaints, their ability to engage in frank and honest deliberations would potentially compromise any findings or conclusions resulting from the investigation, which correspondingly would have a detrimental effect on how police misconduct is addressed.
CI Holgate stated that if people are unhappy with their complaint outcomes, they can approach the LECC for review. He also gave evidence that under s 211F of the Police Act, NSW police officers are legally required to report misconduct of their fellow officers or give information about their co-workers throughout the complaints handling process. However, as the matter before me does not involve this scenario, I have not extracted this evidence in this decision.
CI Holgate stated that on 30 June 2021, the applicant attended Inverell Police Station and reported to police a history of altercations with a named person whom he claimed was threatening and stalking him. He also claimed that he was being frequently followed by a vehicle. He provided 5 pages of notes to support his account. On 29 July 2021, he again attended the Station and handed officers a 3-page document alleging that he had been followed by several vehicles. He was advised that no offences appeared to have been committed and that he could seek a Personal Violence Order from the local court. On both occasions the applicant attended the Station, officers formed concerns that he may have mental health issues and accordingly made a referral to NSW Health.
On 17 August 2021, the applicant lodged a complaint with LECC, apparently after being contacted by community mental health services. His complaint primarily relates to the conduct of officers at the Police Station on 30 June and 29 July 2021 and his referral to NSW Health, but he also made allegations of being targeted by NSWPF, general corrupt conduct motivated by racism and perversion of the course of justice.
On or around 11 October 021, the complaint was referred by the LECC to the NSWPF for resolution, with the LECC retaining oversight. NSWPF was accordingly required to keep the LECC informed of progress and the outcome of the complaint. It was determined that the complaint should be dealt with at the local level, rather than by PSC and the applicant was advised that his complaint had been forwarded to New England PD by a letter dated 19 October 2021. On 17 November 2021, the complaint was triaged by an offer of the New England PD holding the rank of Inspector. The triage officer's assessment of the complaint was provided to the Commander, New England PD, who made a decision to decline to investigate the complaint pursuant to s 132(a)-(e) of the Police Act. The applicant was advised of this decision by letter dated 23 November 2021. As the complaint was originally submitted to the LEXX, notification of the outcome of the complaint was also sent to the LECC.
In relation to the actual Triage Form, CI Holgate stated that this is marked "OFFICIAL: Sensitive", which means that dissemination is restricted to those with authorisation to view the IAPro complaint file. The designation also means that the document is privileged in some way, for example, for personal privacy reasons or because legal professional privilege or Parliamentary privilege attaches to the document.
CI Holgate stated that triage and initial assessment documents are prepared at a very preliminary stage of dealing with a complaint, before evidence is obtained and reviewed to determine if allegations are substantiated. These documents are used to scope access and direct the issues for determination. Accordingly, often the approach is taken starting with broad and serious issues at a higher evidentiary level, which are then refined during the investigation. These will also record matters that may be relevant to the complaint, but which have not been substantiated, as its purpose if to identify the issues that may need checking for veracity. They also frequently obtain the opinions of the triage officer as to the complaint and/or actions of the officers. Also, its purpose is to determine whether to proceed to a full investigation, in an environment of limited resources where not every complaint can be investigated.
CI Holgate deposed that in his experience, an investigation benefits from this initially broad approach and proper triage of complaints is a critical step in the complaints handling process. Triage officers are encouraged to be thorough and frank in their assessment of complaints. He stated, relevantly: 44. Access to initial complaint assessment documents like the triage form is tightly restricted due to their contents. I am concerned that if this type of document was released, it would inhibit their preparation and use in complaints handling processes. The release of serious, often substantiated claims would also have significant consequences for the subject officer, particularly in a context such as this one, where the allegations were not investigated due to the decision to take no further action on the complaint. 45. The triage form contains the analysis and opinion of the triage officer, prior to investigation and substantiation of those opinions. The "Reason for decision" section of the triage form records the rationale as to what is the most appropriate avenue to pursue in relation to a complaint. The triage form needs to record a full and frank discussion of the rationale of the triage officer's recommendation. If the analysis and opinion of the triage officer was disclosed, it would not be explored and recorded to the extent it needs to be. The underlying rationale for the decision needs to be fully recorded, and this maintains the integrity of the complaints handling process. It allows the PSC and/or LECC when conducting oversight and quality assurance processes to understand the rationale for a decision made on a complaint. If complaint made to LEXX about handling of a complaint then LEXX can go in and see rationale recorded - again needs to be a fulsome explanation. 46. The triage form accordingly contains a mix of personal information about the complainant, the subject officer(s) and the triage officer (in the form of his opinions).

[15]

Applicant's written submissions

A substantial part of the applicant's written submissions and his "opening address" concern matters that are beyond the scope of the current administrative review, including: (1) extensive complaints about the conduct of police officers in making a mental health referral to NSW Health; (2) NSWPF's decision not to investigate his complaint of misconduct regarding that referral; and (3) the LECC's decision upon external review of that decision.
In his email to the Registrar dated 17 June 2022, the applicant stated that the "(core request) information" he is seeking is as follows: (1) Which police officers were involved in the defamatory conduct; (2) What was the motive of the officers involved; (3) What action was taken against these officers; and (4) What action was taken to remedy that harm these false and defamatory have caused him.
The applicant also stated that the "investigation into this matter also needs to be scrutinised and that the police officers who were "involved in the defamatory action against me" should be required to "provide statements and evidence for their defamatory actions against me, because that is what this hearing is about." He complained that it would be "unjust and unfair" if the hearing ignored or prevented his "core request for this information".
In his "Opening address" filed on 4 July 2022, the applicant relied upon "the principles and tests of the "Freedom of Information Act, probability and natural justice". He asserted that it is "reasonably and highly probable," that the information that is being withheld, …is further defamation, lies, contradictions and or a further attempt to cover up this matter. And only disclosure of this information to me the applicant will allow adequate scrutiny. If non-disclosure is allowed to remain then there is a high probability that this conduct will be covered up, and that would be further misconduct by the NSWPF in my opinion.
Further, the applicant argued that for there to be natural justice, he must be given "all the critical information in regards to this matter so I can take the appropriate action to resolve this matter."
In his "Case Submission/Argument, the applicant expanded on the matters set out in his "Opening Address" and said that he, …cannot work out what is going on because information that I should have been given has not been given … there is just so much lying and secrecy. The police have lied and trying to cover up, New England Mental Health have lied and covered up. He stated that if the events described by the respondent occurred, he should be shown the evidence and then "we can call move on." However, he opined that the respondent won't be able to show any evidence "…because, there is no evidence, these false and defamatory claims were made up by the NSW Police officers, for reasons unknown at this stage.
The applicant said that he does not believe that any of the disputed information is subject to non-disclosure legislation and that this matter is before the Tribunal because the respondent has "harmed me with false defamation by their misconduct" and has not appropriately informed him of what happened. He also argued that the Tribunal should consider that the respondent's use, …of one of the largest legal firms in the world is massive overreach… and is being used as a way of further causing harm to me with financial burden should I lose at this hearing. Therefore, the Tribunal should not impose any cost burden on him if it finds in favour of the respondent.
The applicant stated that "natural justice should fall in favour of the victim (the applicant, myself) and not the perpetrator (the NSW Police Force). However, he is concerned that the respondent is "deliberately not investigating this misconduct because they simply do not want to, and this may be an indication of an attitude of impunity within (individual officers) or of (culture) the NSWPF."
The applicant also referred to s 13 of the Evidence Act 1995 (NSW), which relates to "competency: lack of capacity" and s 8(1) of the Mental Health Act 2007 (NSW), which defines mental illness. He denied that he suffers delusions or hallucinations and his thoughts are clear and rational. He asserted that the "only sustained and repeated irrational behaviours in this matter" are found in the respondent's conduct, namely: (1) Defamation; (2) Denial (no need to investigate); (3) Delay (in releasing information); (4) Lies (COPS events, mental health referrals, investigation into conduct); (5) Contradictions ("that's really good evidence" - mental health referral; the investigation [no, yes, no] in the conduct of the subject officers; (6) Repeated cover-ups (responses from NSWPF in relation to my request for information; and (7) The mis-use of non-disclosure legislation. He stated, relevantly: …It's the "unknown - Unknown" consequences (in addition to the damage from the false defamatory claims) that could stem from this matter that could cause additional serious consequences for me. this is why motive is critical information, and it needs to be disclosed to me. this is why disclosure in this matter is required, and it is why I believe disclosure in this matter should be the outcome. This is why there is a massive need for me to be given all the relevant information in regards to this matter, this matter is not just a simple need to know, this is a must know matter…
The applicant asserted that he faces a risk of "serious complications" at a later date if he is not given the disputed information, because, one of the most powerful institutions in the country has falsely claimed I have mental health issues and I think this will place me at serious disadvantage if that risk materialises… These false defamatory claims made by the NSWPF need to be investigated and remedied and the NSWPF needs to be held to account for their actions.
The applicant made specific submissions regarding the reasons provided for the respondent's decision not to investigate his complaint, which was based on s 132 of the Police Act 1990, and he described the mental health referral as "a perversion of justice." However, these matters are beyond the scope of the current administrative review.
The applicant argued that because the NSWPF did not conduct an investigation, there is no deliberative process that could be prejudiced or revealed and therefore the use of cl 1(e) is "evidence of cover up culture." He stated that reliance on the public interest considerations against disclosure "…would suggest that all police are corrupt, and the NSW Police Force is a corrupted institution."
The applicant disputed that cl 1(f) of the Table in s 14 of the GIPA Act applies and he stated, relevantly: 43. It is unacceptable and laziness at best to hide behind non-disclosure legislation, and if non-disclosure legislation is being used s a way of preventing disclosure of information that would lead to natural justice, or if investigations are worded, or conducted in a way that would prevent natural justice, or if disclosure of relevant and critical information that could, would or should be used for the pursuit of natural justice, then at worse the inappropriate use of non-disclosure legislation could be seen as a way of covering up misconduct, and that is totally unacceptable and would require amendments to the relevant legislation to prevent its use in that way, and appropriate oversight to ensure this legislation is not being misused, if that is the case.
The applicant stated that the respondent's decision dated 16 June 2022, to release a redacted Triage Form, is evidence that it misused non-disclosure legislation. He alleged that this is "…a ruse, a way, to eliminate any opportunity of myself the applicant of succeeding at this hearing on the 13/7/22." It is also "…vindication that legitimate information was wrongly being held from me, and I think, should be reason for the tribunal to find greater weight in favour of the applicant, even if no further information is disclosed to me." He considered that the respondent is "…trying to draw me into a legal battle, then changing the goal posts to prevent me the applicant from being successful at this NCAT hearing on the 13/7/22, resulting in me the applicant being further harmed by the respondent's legal costs should I lose at the hearing on the 13/7/22." He concluded that this is "proof the NSWPF were trying to cover up their conduct."
The applicant disputed that cl 1(h) of the Table in s 14 of the GIPA Act applies as there was no investigation. He asserted that there "…is a high probability that there are further lies, contradictions cover ups and further defamation being hidden. In respect of probability I think more weight should be put in favour of disclosure…"
In relation to cl 3(a) to the Table in s 14 of the GIPA Act, the applicant opined that this matter, …is about misconduct of the responsible officers, their motive is critical information, to claim that their opinion can be withheld in a matter such as this is wrong, critical information such as opinion is necessary to working out what the motive is. In the interests of natural justice, motive must be released and opinion will form part of the motive… He also stated that preventing the release of "critical and relevant information (the opinion and the motive) that is necessary for the pursuit of natural justice is just wrong" and is "not a just or reasonable use of non-disclosure legislation."
The applicant asked the Tribunal to "take necessary steps to investigate or have an appropriate authority investigate, to see if non-disclosure legislation is being used as a 'cover up tool' by the NSW Police Force and other agencies, and if so, take appropriate steps to, or request the appropriate authority, to ensure the use of non-disclosure legislation is not being misused in other cases in the past, present or future for the purpose of preventing appropriate release if information".
The applicant also stated that the Tribunal "should force the NSW Police to comply with the direction from the LECC that the complainant be appropriately notified of the outcome, and that means in my opinion the NSW Police Force should provide the complainant the relevant information in regards of this matter."
The applicant replied CI Holgate's evidence concerning the bodies (including the LECC and the Ombudsman) that have specific oversight powers, and he stated, relevantly: a. I have gone to the LECC, and they ran away. b. The LECC said (Bowyer - further correspondence 1/12/21) 'the commission is not unsatisfied with how the police have dealt with your complaint. The commission therefore will take no further action in this matter. I have had two emails bounce 2/12/21 and 3/12/21, so it is clear they have blocked my email account, meaning that avenue is closed. (This is called oversight ??? ???) c. I was not aware of 'the ombudsman' I don't even know which or what ombudsman; my understanding is that NCAT was the next step in the process to sort this mess out. As we have gone down this path with NCAT I think we should continue. d. As for trying to claim that I have other options, the assumption here is that I have knowledge of these processes and the options available to me. I do not have this knowledge, this is all new to me and I am at a considerable disadvantage because of that lack of knowledge. e. A much better option would be for the NSWPF to appropriately investigate these issues, and then inform me of the outcomes (below) which has not yet happened… f. An even better option would be to not make false defamatory imputations against members of the public, in the first place. g. Given the bungled investigation that may or may not have occurred into this matter, further information needs to be provided 1. What were the (real) reasons for not investigating (Laksa response is invalid) 2. The comments (triage report) 3 Why has the complainant not been appropriately notified of the outcomes?
However, as previously indicated the submissions set out at paras 66, 67 and 68 of this decision are beyond the scope of the current administrative review.
The applicant concluded that this entire matter "is absurd, these claims by the subject officers were false and defamatory, the NSWPF have dug their heels un and refused to deal with this matter appropriately, and this is why we are at the NCAT." Natural justice should favour the victim and greater weight should be placed on the release of the disputed information.

[16]

Respondent's open submissions

The respondent filed open submissions dated 16 June 2022, which are summarised below.
In relation to the redacted "Triage Form", the respondent stated the only the sections that remain in dispute are headed "Reason for Decision" and "Triage Comment". He argued that the decision not to release the disputed information should be affirmed because there is an overriding public interest against disclosure, as follows: 1.7 The respondent submits that disclosure of the remaining complaints handling information will prejudice the performance of its functions, including the ability to conduct future investigations and receive confidential information. It is also submitted that it will disclose sensitive personal information about NSWPF officers. These considerations outweigh the public interests in favour of disclosure.
The respondent made lengthy submissions regarding the approach to be adopted in determining whether access to the disputed information should be granted under the GIPA Act. He referred to the decisions in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 and Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286, and stated that the determination involves a process in balancing the positive and negative public interest considerations. There is an overriding public interest against disclosure if and only if there are public considerations against disclosure that, on balance, outweigh the public interest considerations in favour of disclosure.
In Camilleri, the Appeal Panel of the Administrative Decisions Tribunal observed at [29] that the considerations in cl 1 of the Table to s 14 of the GIPA Act "squarely focus on considerations relating to the conduct of the business of government" and it endorsed the Appeal Panel's statement in Department of Education and Training v Mullett [2002] NSWADTAP 13 at [58], that the Tribunal should "engage in a relatively abstract analysis" and "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."
The reasoning in Camilleri has been applied primarily to cll 1(d), 1(f) and 1(g) of the Table to s 14 of the GIPA Act, to give primacy to the agency's evidence about the relevant administrative structure in which the information has been created or received (eg NSW Henry George Foundation v Director General, Department of Attorney General and Justice (NSW) [2013] NSWADT 2 at [44]; Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [37] (Selby); McMillan v Commissioner of Police (NSW) [2013] NSWADT 53 at [45] and [70] (McMillan); Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [23]-[26]; AFW v WorkCover Authority (NSW) [2013] NSWADT 51 at [45] (AFW); McInnes v NSW Department of Education and Communities [2013] NSWADT 219 at [33] (McInnes).
In Transport for NSW v Searle [2018] NSWCATAP 93 (Searle), the Appeal Panel found that the Tribunal had applied an overly demanding evidentiary standard by requiring the agency to provide "factual" evidence in order to satisfy the "could reasonably be expected to" standard. The Appeal Panel considered that an ordinary weighing of the material by the Tribunal would give prominence to the inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses, including the considered and understandable confidentiality and the natural implication for future supply if such confidentiality was to be undermined (at [63]). The Tribunal has subsequently cited Searle as authority for the proposition that it look to the "content and context" of material to determine whether a particular outcome could reasonably be expected to occur: see Anderson v University of Sydney [2018] NSWCATAD 196 at [83].
The respondent argued that the Tribunal should give moderate weight to the public interest factors in favour of disclosure and that these factors (set out in s 12(1) of the GIPA Act) include: (a) disclosure could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public (Note (b)); and (b) the applicant's personal interest in how his complaint was determined and information about him (s 55(2)).
However, the public interest factor of informing members of the public about the operations of the NSWPF and its policies and practices for dealing with members of the public, should be given less weight, as: (a) the NSWPF publishes a detailed policy document in relation to its complaints handling practices on its website; and (b) it is not the case that the applicant is without recourse if he is dissatisfied with the handling of his complaint. Several independent bodies, including the LECC and the Ombudsman, have specific oversight powers in relation to the performance of the NSWPF's functions and the applicant has the ability to raise any concerns he may have with those agencies.
The respondent stated that while the applicant has a strong personal interest due to being the complainant, this does not extend to having a right to procedural fairness: see Collins v Department of Finance, Services and Innovation [2017] NSWCATAD 329. The applicant was not the subject of the investigation and was not at risk of criminal charges and/or disciplinary proceedings and his personal interest should be weighed carefully against others that also have a personal interest in the information associated with the investigation.
[NOT FOR PUBLICATION]
The respondent argued that cll 1(d), 1(e), 1(f) and 1(h) apply to the disputed information and he stated, relevantly: 1. The question of prejudice is to be determined at a broader operational level (see CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 169 and Camilleri). The relevant administrative context and function is the NSWPF's complaint handling functions, in particular its triage and investigation process. 2. Clauses 1(d) and 1(f) are typically considered together and are found to apply with respect to information generated in the investigation of internal complaints or allegations of misconduct in the workplace. The Tribunal has accepted on many occasions that the release of such information could reasonably be expected to prejudice an agency's functions in conducting such investigations, and in performing their human resources functions more generally: see Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 (Luxford); Burke v Health Education and Training Institute [2016] NSWCATAD 194 at [71] (Burke); Jones v NSW Department of Education [2017] NSWCATAD 51 at [71] (Jones); Ansoul v City of Sydney [2017] NSWCATAD 64 at [47] (Ansoul); Collins v Department of Finance, Services & Innovation [2018] NSWCATAD 60 (Collins); CGU Workers Compensation (NSW) Limited v Department of Planning and Environment [2018] NSWCATAD 169 (CGU); Thomson v Commissioner of Police [2021] NSWCATAD 53 at [113]-[115] (Thomson). See also Place v Department of Finance, Services and Innovation (No 2) [2018] NSWCATAD 220 (Place), in which the Tribunal found that the release of information could reasonably be expected to prejudice the Building Professionals Board's complaint handling functions. 3. The Tribunal has accepted that complaints under Pt 8A of the Police Act are handled confidentially and that information is supplied by offers involved in the complaints assessment, investigation and determination process on a confidential basis. The Tribunal has also held that there would be prejudice both to the supply of information to the Commissioner in the future and the complaints handling function more generally if information was disclosed see: Thomson; ECN v Commissioner of Police [2020] NSWCATAD 153 at [50] (ECN); and Sheehy. 4. With respect to cl 1(d), CI Holgate's evidence is that investigations into complaints are conducted with a high degree of confidentiality, particularly in relation to communications between the triage officer and Commander (or CMT). In Thomson, the Tribunal accepted that the confidentiality of the complaints management and investigation process is fundamental to the proper conduct of the process (at [13]). CI Holgate stated that the process depends heavily on officers such as triage officers and investigators giving frank and fulsome advice and opinions to Commanders (as the Commissioner's delegates) as to the merits of a complaint. He deposes that this information is supplied with the expectation that it will be kept confidential to those involved in the determination of the complaint and expressed his concerns regarding the impacts on the integrity of the complaints handling process if analysis, opinions and recommendations are not fully documented. 5. The Tribunal accepted similar evidence in ECN at [65] and it observed that although officers can be expected to continue to perform their functions and duties, that is not without limits and "the effective participation of officers involved in the investigation of other officers requires such police officers to offer lines of enquiry or investigative strategies to enhance the effectiveness of the investigation based on their personal experience and knowledge." This applies equally to the expression of advice and opinions by the triage officer. In citing Luxford, the Tribunal concluded that disclosure would likely inhibit the proffering of full and frank views and that this prejudice outweighed the public interests in favour of disclosure, in a context where the applicant was the complainant and much of the information related to her. 6. In relation to cl 1(e), the Tribunal has previously held that this requires a connection between the revelation of the deliberation, opinion or advice and the prejudice to the deliberative process and that this applies to internal communications about human resources matters, including complaints and conduct: see Thomson at [108]; ECN; Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13). 7. In Cameron at [71], the Tribunal concluded that such communications were critical to the performance of the agency's deliberative functions and were made in the expectation that they would not be publicly disclosed. The Tribunal held that future communications would be inhibited if the information was disclosed, and this would prejudice the performance of deliberative functions. The recency of the communication and whether it would have other consequential impacts (for example, on current staff or operations generally) were also relevant factors. These factors are also present in this case. 8. It is also critical that officers continue to record their advice and opinions in relation to complaints in written form, to ensure that the LECC can exercise effective and efficient oversight. 9. Further, in relation to cll 1(f) and 1(h), Deputy President Hennessy held that the effective performance of an agency's investigative functions depended to a large extent on the cooperation of those who had relevant information. If information obtained confidentially is provided to an applicant under the (former) Freedom of Information Act, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency's functions: Robinson v Department of Health [2002] NSWADT 222 at [71 (Robinson)]. 10. The Tribunal has previously accepted that cll 1(d), 1(e), 1(f), 1(h) and 3(a) apply to the disclosure of information about the conduct of a police misconduct investigation: Thomson; McDonald v Commissioner of Police [2019] NSWCATAD 66 (McDonald); and Sheehy & Ors v Commissioner of Police [2018] NSWCATAD 73 (Sheehy). The Tribunal accepted that there is a real public interest in not revealing information about the conduct of internal investigations to the world at large, so that any person can scrutinise the manner in which an investigation is conducted. In both those cases, the applicants were the officers who were the subject of the investigation, and they therefore held a very strong personal interest in the information. 11. In McLachlan v Commissioner of Police [2019] NSWCATAD 109, the Tribunal held that the same considerations apply even if the complainant is the applicant. In McDonald, the evidence was that disclosure of complaint information generally would have a tendency of revealing the purpose of the investigation that is being conducted and the manner in which it is being conducted; and that it is critical that persons are not given the opportunity to understand covert police methodology. There is a real public interest in not revealing information about the conduct of internal investigations to the world a large, so that any person can scrutinise the manner in which an investigation is conducted. 12. In relation to cl 3(a), the respondent noted that the applicant was not seeking access to redactions to the triage form made in order to protect the privacy of third parties and the subject officer. The disclosure of the redacted information would reveal personal information about officers of the NSWPF and particularly the subject officer. For the purposes of the definition of personal information in Sch 4 of the GIPA Act, this information goes well beyond information that would reveal nothing more than that the subject officer was performing public functions. 13. These matters bear on the applicability and weight to be given to cl 1(f). In Jenkinson v Department of Education and Communities (NSW) [2013] NSWADT 280 (Jenkinson), the Administrative Decisions Tribunal held that disclosure of information given in the investigation of a complaint could reasonably be expected to prejudice the effective exercise by the respondent of its functions in respect of the health and wellbeing of staff (at [46]). 14. The information contained in the "Reasons for decision" sections of the Triage Form are opinions of the triage officer and it is therefore also his personal information. in Applicants v Commissioner of Police [215] NSWCATAD 22 (Applicants), the Tribunal accepted that the expression of police officers' opinions in transcripts of interviews (regarding an incident that was the subject of a complaint) and recorded in an investigation report was their personal information.
The respondent argued that the public interest considerations against disclosure should be given significant weight and that they outweigh those factors in favour of disclosure. The applicant already has the COPS events, which set out the basis of the subject officer's conduct and his interests cannot be advanced by disclosure of the triage officer's opinion as to his complaint. Further, CI Holgate's evidence supports strong weight being given to the prejudicial impacts that disclosure is likely to have on Part 8A complaints handling if triage of complaints cannot be conducted in a full and frank manner.
Accordingly, the correct and preferable decision is to affirm the decision to refuse access to the disputed information.

[18]

The GIPA Act

In respect of access applications, s 9 (1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
The Notice of Decision dated 24 February 2022 is a "reviewable decision" in respect of an access application within the meaning of s 80 of the GIPA Act and is reviewable by the Tribunal under s 100 of the GIPA Act.
I further note that on 16 June 2022, the respondent reconsidered his decision not to release the Triage Form and released a redacted version of the document to the applicant. I am satisfied that this decision is also a reviewable decision for the purposes of ss 80 and 100 of the GIPA Act.
In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance.
Section 5 of the GIPA Act provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) 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. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can 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 in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
Section 73 of the GIPA Act requires that access be unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
Section 105 of the GIPA Act places the onus on the agency to establish that its decision was justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]; Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7].

[19]

Grounds relied upon by the respondent

In this matter the respondent relies upon cll 1(d), 1(e), 1(f), 1(h), 3(a) and 3(b) of the Table to s 14 of the GIPA Act, with respect to 2 areas of redaction in a Triage Report, which are headed "Reasons for Decision" and "Triage Comment."
The respondent stated that in making this decision, it applied the public interest test in the manner required by s 15 of the GIPA Act. It cited the following public interest considerations in favour of disclosure: 1. There is a general public interest in favour of the disclosure of government information (s 12(1) of the GIPA Act). 2. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular their policies and practices for dealing with members of the public (note (b) to s 12); and 3. The applicant's personal interest in how his complaint was determined and information about him (s 55(2)).
The respondent argued that moderate weight should be accorded to factor (1) and lesser weight should be given to factors (2) and (3), because the respondent publishes a detailed policy document regarding complaint handling on its website and the applicant is not without recourse if he is dissatisfied with respect to the handling of his complaint. However, while the applicant has a strong personal interest as he is the complainant, this does not extend to a right to procedural fairness: see Collins v Department of Finance Services and Innovation [2018] NSWCATAD 60 at [39] and DDT v Charles Sturt University [2017] NSWCATAD 329.
Relevantly, the applicant essentially argues that the "non-disclosure legislation", which appears to comprise the public interest considerations against disclosure that the respondent relies upon, does not apply to this matter and that natural justice requires that he be provided with an unredacted copy of the Triage Report.
While the respondent has also made a plethora of assertions and allegations regarding the respondent's actions, including allegations of lies, defamation, misconduct and cover-up, these matters are outside the scope of the current administrative review. I have therefore not considered these matters in determining the current application.
The applicant made extensive submissions to the effect that the Tribunal should review the conduct of the police in making the mental health referral about him and deciding not to investigate his complaint of misconduct against the officer(s) involved, and complaints regarding the conduct of the LECC upon external review of the respondent's decision to not investigate the misconduct complaint, these matters are beyond the scope of the current administrative review.

[20]

Clauses 1(d) and 1(f)

Clauses 1(d) and (f) of the Table to s 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions,
Based on the evidence of CI Holgate, which I accept, I am satisfied that cll 1(d) and 1(f) apply to the disputed information in this matter.
In relation to cl 1(d), CI Holgate stated that investigations into complaints are conducted with a high degree of confidentiality, particularly with respect to communications between the triage officer and Commander (or CMT). In Thomson, the Tribunal accepted that confidentiality of the complaints management and investigation process is fundamental to the proper conduct of that process. He also stated that the complaints handling process depends heavily on officers involved in the assessment of complaints, such as triage officers and investigators, giving frank and fulsome advice and opinions to Commanders (as the Commissioner's delegates) regarding the merits of a complaint. This information is provided on the expectation that it will be kept confidential to those involved in determining the complaint and expressed his concerns as to the impacts on the integrity of the complaints handling process if analysis, opinions and recommendations are not fully documented.
In ECN at [65], the Tribunal accepted similar evidence and observed that "the effective participation of officers involved in the investigation of other officers requires such police officers to offer lines of enquiry or investigative strategies to enhance the effectiveness of the investigation based on their personal experience and knowledge." The Tribunal held that this observation applies equally to the expression of advice and opinions by the triage officer. In citing Luxford, the Tribunal concluded that disclosure would likely inhibit the proffering of full and frank views and that this prejudice outweighed the public interests in favour of disclosure, in a context where much of the information related to the applicant (the complainant).
In my view, cll 1(d) and 1(f) should be given significant weight.

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