Bradford v Commissioner of Police

NCAT Appeal Panel|2022-02-25

REASONS FOR DECISION

By notice of appeal filed on 11 October 2021, Dr Adrian Bradford has appealed against orders made by the Tribunal on 13 September 2021. The Tribunal dismissed his application that the respondent, the Commissioner of Police, make available for inspection documents which he asserts were within the possession of the respondent and which he was entitled to inspect pursuant to the provisions of the Government Information (Public Access) Act 2009 (the GIPA Act).
On 7 January 2022, the appellant filed extensive written submissions together with 16 other identified documents in two volumes. On 4 February 2022, the respondent filed written submissions, together with an Appeal Bundle. Each party made oral submissions at the hearing of the appeal.
The appellant appeals against the decision of the Tribunal "as of right on a question of law". To the extent that it may be necessary to do so, the appellant also seeks leave to appeal. See s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).
These are our reasons for refusing to grant leave to appeal and dismissing the appeal.

Consideration

The appellant was unrepresented and we have adopted the position as was stated by an Appeal Panel in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.'
The appellant, raises his appeal grounds on a question of law, and in the alternative seeks to be granted leave to appeal. We have considered each of the appeal grounds on that basis.

Ground 1 - Application of Schedule 1, clause 6(2) of the the GIPA Act

Ground 1 of the appellant's appeal contends that the Tribunal erred in its interpretation and application of Schedule 1, clause 6(2) of the GIPA Act. The appellant submits that the wording interpretation and construction of the usage of "whether the other agency consents" within the provision "the agency is required to ask the other agency whether the other agency consents to disclosure of the information".
The appellant submits that the NSWCC "should have been provided with sufficient and accurate information by the respondent to properly consider whether to consent or not" and that the Tribunal erred "by failing to consider whether the NSWCC was provided with sufficient information so as to make an informed and accurate decision to consent". The appellant conceded that the decision of the NSWCC to withhold consent cannot be reviewed but that the appeal seeks to "clarify whether the respondent has provided the NSWCC with sufficient information for the NSWCC to make a properly informed and accurate decision to consent".
It is readily apparent that, if the decision of NSWCC to withhold its consent to disclosure of information cannot be reviewed, reviewing whether it had been provided with sufficient information to "make a properly informed and accurate decision to consent" would be likely to involve reviewing the decision itself and/or to involve disclosure of excluded information.
The appellant requested that we review the evidence identified by him in paragraphs 31 to 33 of his submissions. We have reviewed all of the evidence there referred to, and all of the material which was before the Tribunal, as well as the additional material contained in the appellant's two volumes of material relied upon in the appeal.
Paragraph 34 of the appellant's submissions succinctly encapsulates the crux of this, and asserts that: The Respondent has provided no information which the NSWCC could use to properly consider consenting to the disclosure of the disputed documents to arrive at any other decision other than refusing to consent on the basis that the disputed information is excluded information.
The appellant submitted that a letter from the respondent to the NSWCC of 22 February 2021 "preconditioned the NSWCC that the disputed information is excluded information and that the NSWCC should not consent to its disclosure". The appellant submitted that it was clear that the decision conveyed to the respondent by the NSWCC by letter on 24 February 2021 resulted only from consideration of "the documents at issue and had no other information before him to be properly informed whether to consent to the release of the documents".
The appellant detailed his contentions that "The choice to consent has been taken away by the lack of being properly informed". A number of points raised in the course of the "discussion" which is there recorded do not require consideration as they are not grounds of appeal, or capable of advancing an application for leave to appeal.
Although not expressly so articulated, the appellant's complaint was that the release by the NSWCC to a television programme of certain information as provided by the appellant in May 2021 and duplicated for the appeal, involving information which would "definitely fall within the "investigative and reporting functions" of the NSWCC" and constituting "excluded information", in July 2008, having been accessible on the internet until 2017, was inconsistent with the refusal to consent to the release of other excluded information.
It is not in doubt that the respondent and other agencies in possession of "excluded information" can consent to its disclosure. The crux of the appellant's contention seems to be that disclosure of certain "excluded information" precludes refusal to consent to disclosure of related "excluded information". The appellant ultimately submitted that the approach of the Tribunal involved an impermissible "double standard", for the reasons which he set out in his submissions.
We are not persuaded that the appellant's complaint about the Tribunal's interpretation of the words in clause 2 of Schedule 2 of the GIPA Act has merit, irrespective of whether it purports to raise a question of law, or requires a grant of leave to appeal.
Firstly, the legislation, by its terms, provides no mandate "for reading it down" in the manner asserted by the appellant. Secondly, having regard to the purposes or objects of the provision, and contrary to the provisions of s 33 of the Interpretation Act 1987 (NSW), reading the legislation down would not only fail to promote those purposes or objects, but is likely to encourage the mischief which the legislation is intended to protect against in a number of obvious ways.
The respondent disputed the contention of the appellant that the "investigative and reporting functions of the NSWCC … do not extend to the withholding of evidence or information beneficial to overturning an unjust conviction" or that "the withholding of information or evidence that can overturn an unjust conviction is not the intention of parliament". We have not been refered to anything which establishes that the decision of the Tribunal has, or is likely to have that effect. As is readily apparent, the appellant's challenge is founded upon his genuine belief that the information he seeks does exist, and that it could assist in overturning what he considers to be an unjust conviction. Such beliefs provide no basis for declining to give effect to the provisions of the GIPA Act with respect to "excluded information".
We agree with the submission of the respondent, and the finding of the Tribunal that: "excluded information" is information that parliament has determined, as a category, ought not be made subject to the open access regime, to access applications, or the public interest balancing test. The types of factors identified by Dr Bradford would require very finely nuanced distinctions to be drawn in order to weigh public interest considerations. The legislation as drafted in clause 2 of Schedule 2 of the GIPA Act, specified with respect to each agency and its particular functions, that information pertaining to those functions is "excluded information" and that, under Schedule 1, it is to be "conclusively presumed that there is an overriding public interest against disclosure (unless the agency consents to disclosure). As such, it is plain that the "excluded information" would not be subject to the public interest balancing test.
Nothing to which we have been referred by the appellant demonstrates that the Tribunal erred in so finding.
As we have earlier suggested, it is difficult to see how the Tribunal could have investigated the basis upon which the NSWCC refused its consent to the disclosure of "excluded information", without effectively reviewing that non-reviewable decision. Nothing advanced by the appellant demonstrates how the Tribunal could permissibly have undertaken the exercise suggested by him, without effectively reviewing a non-reviewable decision in breach of the GIPA Act. The appellant's complaint also assumes, in the absence of any evidence to that effect, that the NSWCC had regard only to the documentation which the appellant sought. We are satisfied that was not the case, having regard to the evidence with respect to this issue which was before the Tribunal, to which we have extensively referred earlier in these reasons.
Nothing to which the appellant has referred the Appeal Panel establishes that the Tribunal erred in any of the ways asserted by him pursuant to this ground, either as a question of law, or on any other basis not involving a question of law.

Ground 3 - The Tribunal's decision raises an issue of principle, questions of public importance and an injustice which is reasonably clear.

Ground 3 of the appeal is that the Tribunal's decision raises an issue of principle, questions of public importance which might have general application, and an injustice which is reasonably clear. The appellant reiterated that Schedule 1 clause 6(2) of the GIPA Act referred to the provisions of the Schedule to the GIPA Act enabling agencies to decline to consent to the disclosure of a document on the basis that the information is deemed to be excluded information of that agency. The appellant submitted, correctly, that agencies were not thereby permitted to "misuse this provision". The appellant also submitted, without any foundation, that the non-reviewable nature of decisions to refuse to consent to disclosure of excluded information of the agency "ensures that agencies that misuse clause 6(2) cannot have their decision reviewed". We have not been referred to any evidence which suggests any intention to "misuse" the exclusionary provisions of the GIPA Act by the respondent or any of the agencies involved in Operation Mocha.
The reason why refusals to consent to disclosure of excluded information of an agency are not reviewable include the protection of persons named in that material. As in this case, not uncommonly, informants whose information has assisted in the investigation of serious criminal conduct, and in some instances, prosecution of serious criminal charges would be at grave risk of death or serious harm or injury if their identities were disclosed. In any event, nothing to which the appellant has referred us establishes that the decision refusing consent to disclosure in this case involved any misuse of the protections provided by the GIPA Act by any relevant agency.
The appellant's grounds challenged the basis of the decision to refuse consent to the provision of excluded information. Implicit in that complaint was that the appellant did not know of information which the NSWCC had not considered in refusing consent, much less that its refusal of consent involved any "misuse" or other improper conduct.
Much of the appellants complaint involves either matters which, if they are to be addressed, are only able to be addressed by the legislature, or speculation as to the content and likely significance for other purposes of excluded information with respect to Operation Mocha. Although nothing to which we have been referred establishes that it was so, even if the NSWCC has been "known to be cavalier in its investigative functions", that could not advance this ground.
Finally in support of this ground, the appellant submitted that, if the NSWCC consented to the disclosure of the disputed information, Schedule 1, clause 6(2) would no longer apply and that the matter would be resolved through the public interest test specified in s13 of the GIPA Act. With respect to the sppellant, as the information was excluded information the public interest test has no relevance in the present case, nor has the Aapellant's speculation about the motives of the NSWCC for refusing to consent to the disclosure of excluded information.
The appellant's submissions acknowledge that the Tribunal's decision was consistent with the terms of the GIPA Act, or, at the very least, do not advance anything to establish that the decision was erroneous in principle or, as may also be asserted by the appellant, was erroneous in either fact finding or the exercise of discretion, to the extent that the latter may have been involved in the decision of the Tribunal at first instance, which we doubt.
The respondent submitted, that there was "ample basis for the Tribunal's conclusion that the information in issue "relates to" the "investigative and reporting" functions of the NSWCC" and that it was "on this basis that the information has been correctly found by the Tribunal to be excluded information of the NSWCC".
The respondent also submitted the "motive and reasons for the NSWCC declining to consent to the disclosure of its excluded information" was excluded by the clear provisions of clause 6(3) of Schedule 1 of the GIPA Act. Assuming, which has not been established, that disclosure of excluded information might "embarrass" an agency, that would not remove or reduce its immunity from disclosure under the GIPA Act. As submitted by the respondent, there is "no scope for reading that provision down in a manner that would allow for the type of review which the appellant now seeks".
We agree with the submission of the respondent that the matters which the appellant seeks to agitate, exceed the scope of powers that could properly be considered by the Tribunal under the GIPA Act.
We find that, whether raising a question of law, or requiring a grant of leave to appeal, this ground lacks merit.

Ground 5 - Point 20 of the Access Applicaiton

Ground 5 of the appeal is related to point 20 of the access application and the appellant asserts that the Tribunal's finding that the respondent's reliance upon a conclusive presumption against disclosure of information that was excluded information was justified, and included the information sought for point 20, was erroneous.
The appellant reiterated the terms of his request with respect to point 20. Point 20 of the appellant's request for access to information read: In lieu of any of his (Tom's) witness statements being fully exempt from disclosure, then: the wording and context of anything Tom stated was red in colour; the number of witness statements by Tom in possession of the NSW Police (and the total number of folios); and the date of each statement.
It is apparent that this request potentially involved disclosure of a statement which was permissibly found to be "exempt from disclosure". The appellant submitted that his request was "mistakenly" interpreted as seeking answers to questions. The Tribunal erred in finding that "the wording and context of anything Tom stated was red in colour" was not a request for a record, and that providing the dates and numbers of pages in each was not a request for a record.
The substance of the appellant's contention was that "point 20 should have been read and interpreted by the Tribunal as a request for access to documents which cover the dot points as provided". The appellant further submitted that: Whilst Tom's witness statements are government information and thus a "record" held by an agency, the folio numbers are information related to the property of a document and do not form part of the body/contents of the document. They cannot be classified or categorised as excluded information of an agency, regardless of the "investigating functions" of the NSWCC and should not be subject to a conclusive presumption of overriding public interest against disclosure as per Schedule 1, clause 6 of the GIPA Act.
The appellant made similar submissions with respect to the date of each document, asserting that the date placed on a document was "not sufficient to be classed as an "investigative function" of the NSWCC for it to be deemed "excluded information" under Schedule 1, clause 6 of the GIPA Act.
In reliance upon what the AFP was asserted to have released, the appellant submitted that the respondent could not properly have refused to disclose the dates and page numbers of excluded documents. We do not accept that, whatever the reasons for the AFP doing so, the release by that agency of that information assisted the appellant at first instance, or can advance this ground of appeal. Quite apart from the fact that the appellant apparently already has that information, nothing to which we have been referred establishes that the actions of the AFP with respect to information which is excluded under the GIPA Act are binding on the respondent.
The appellant also relied, as he had earlier, on the release to him of "excluded information" of the NSWCC in support of this ground. As previously recorded, we do not accept that the release of other excluded information precluded the respondent from asserting that the documents in point 20 were "excluded information" which the respondent was entitled to refuse to disclose.
The appellant's complaints with respect to documents identifying "the wording and context of anything Tom stated was red in colour" may well, as he asserted, be "easily identifiable by simply reviewing his witness statements". The respondent correctly submitted that the material could be provided in a new cpy, or a new document pursuant to s 75 of the GIPA Act, but acknowledged, correctly, that the agency was not thereby obliged to do so by the terms of that section. Section 75 of the GIPA Act creates no obligation to disclose excluded information, it merely facilitates "quarantining" excluded information which is provided, from protected information which is not.
The appellant references to what may be the disclosure regime in New Zealand cannot assist him in this appeal.
The appellant ultimately submitted in support of this ground that "The information sought which pertains to a possible red object in Tom's witness statement is either a red Holden Commodore or a red suitcase - neither of which form evidence in criminal proceedings" and that he "believes the Tribunal should have ordered the respondent to provide a new record under s 75 of the GIPA Act by way of writing a letter to the appellant that satisfies point 20 of the access application, in particular to the wording and context of anything Tom stated was red in colour". We have not been referred to anything which establishes that "excluded information" which has not been adduced in evidence in legal proceedings does not remain subject to immunity from disclosure. It is not hard to understand why such information retains that immunity.
We perceive that s 75 of the GIPA Act cannot assist the appellant with this challenge, for the reason that he, correctly, identified that it permitted an agency to do things but imposed no obligation on such agency. It is difficult to see how, if "Tom's" statement was "excluded information", as we accept that it was, the appellant could, in the absence of relevant consent, which was not given, gain disclosure of any part of that witness statement.
The respondent identified, accurately in our view the two limbs of this challenge. They were that the Tribunal erred in finding a conclusive presumption against disclosure of the "excluded information" covered by point 20, and the Tribunal's assertedly mistaken interpretation of point 20 of the Aapellant's access application as seeking answers to questions.
The respondent submitted, on a variety of grounds, that this ground lacked merit. The first matter relied upon by the respondent (paragraph 46) was that there were no documents identified in the respondent's "Revised Decision" as responsive to point 20 of the appellant's access application, other than the statements of "Tom". It was submitted that those statements were "clearly "excluded information" for the reasons discussed (by the Tribunal) at [27] to [33] above". We agree with that contention.
It was submitted that, even if information had otherwise been held by the respondent with respect to "the wording and context of anything Tom states was red in colour", "the number of witness statements by Tom" and "the date of each statement", such information would still be information relating to the conduct of Operation Mocha and accordingly "excluded information" of the NSWCC. Nothing to which we have been referred by the Appellant persuades us that we should reject that submission.
The respondent engaged with the distinction sought to be drawn by the appellant between "information related to the property of a document" and the body/contents of a document. The respondent submitted that the "dichotomy" asserted by the appellant was a "false one" which was not reflected in the terms of the GIPA Act. Largely for the reasons advanced by the respondent (paragraph 77), and particularly the submission that redacted statements in the form sought by the appellant would not serve to alter the character of the documents as "excluded information" of the NSWCC, we agree with the respondent's contention.
The second matter relied upon by the respondent was that the Tribunal had not erred in its interpretation of point 20 of the appellant's access application as seeking answers to questions. The respondent submitted that, unlike point 19, by which the sppellant sought particular documents, by point 20 the appellant was seeking answers in response to the queries there raised. In our view, for present purposes, little ultimately turns on this issue. If the information sought was in excluded documents, absent consent, they were immune from production, as were their provision in answer to questions.
The third matter relied upon by the respondent in opposition to this ground was the Tribunal's determination that, in so far as the information requested by the Appellant was reflected in "Tom's" witness statements, that information was "excluded information" of the NSWCC and, accordingly, subject to an overriding public interest against disclosure involved no error. The respondent submitted that the request was not a request for information contained in a "record".
Nothing to which the appellant has referred us establishes that the Tribunal erred in finding as it did with respect to point 20 of the appellant's request for disclosure. Nothing to which we have been referred supports the "dichotomy" asserted by the appellant. Nor, in our view, is there any mandate for reading down the provisions of the GIPA Act with respect to "excluded information" to separate from the content of "excluded information", things like page numbers or other aspects of a document which constitutes a "record". These observations also apply to dates of documents appearing in the record which constitutes "excluded information".
Similarly, we are not persuaded by anything to which the appellant has referred us that references to red objects, Commodore motor vehicles or otherwise, in the record which constituted "excluded information" was not covered by the prohibition on its disclosure in the absence of consent. Ultimately, although we find no error in the Tribunal's categorisation of the appellant's requests, even if they were construed as requests for information, that would change nothing. The information, forming part of a record which constitutes "excluded information", is excluded from disclosure without consent.
Whether raising a question of law, or requiring a grant of leave to appeal, nothing asserted by the appellant establishes legal error, or grounds for granting leave to appeal.

Conclusion

No ground of appeal having been made out, the appeal will be dismissed. Similarly, the appellant having not established one of the recognised grounds for a grant of leave to appeal, leave to appeal will be refused.

Order 1. The appeal is dismissed 2. Leave to appeal is refused

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: 06 May 2022

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