Campbell v Commissioner of Police, New South Wales Police Force

Access Applications

1. On 24 July 2020, the Respondent received the access application, by which Ms Campbell sought access to information relating to the outcome of Event Numbers E65170642 and E62340021.
2. On 13 August 2020, the scope of the access application was refined, and the scope limited to the basis for which charge H121309702 - assault causing actual bodily harm and assault causing grievous bodily harm was withdrawn by the Respondent.
3. On 4 September 2020, an officer of the Respondent made a decision on the access application. The decision was that the Respondent refused in full Ms Campbell's application on the basis that there was conclusively presumed to be an overriding public interest against disclosure of the information, under s14(1) and Schedule 1, clause 5 of the GIPA Act.
4. On 17 September 2020, the Respondent received an application for internal review of the 4 September 2020 decision under Part 5 of the GIPA Act, which is an internal review application. Ms Campbell sought to revise the scope of the access application and confirmed that access was sought to the event reports, case reports, fact sheets, charge sheets, court attendance notice, and notebook entries related to the two reports concerning Event Numbers E6517042 and E62340021.
5. On 19 October 2020, an officer of the Respondent made a decision on the internal review application. The Respondent released some information to Ms Campbell but refused access to the balance of the information on the basis that the withheld information was subject to an overriding public interest against disclosure and, in respect of one document, there was conclusively presumed to be an overriding public interest against disclosure of the information, under s 14(2) of Schedule 1, clause 5 of the GIPA Act.
6. On 18 January 2021, the Respondent made a supplementary decision under s 58(3) of the GIPA Act in relation to notebook entries held by the Respondent. The Respondent determined to release some information to Ms Campbell and refuse the balance on the basis that the withheld information was subject to an overriding public interest against disclosure.
7. Ms Campbell then on 19 November 2020, filed with the Tribunal an application seeking review of the decision of the Respondent dated 4 September 2020 and related internal review decisions.

Relevant Legislation

1. Section 3 of the GIPA Act states that the object of the Act is to open government information to the public and: … (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (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.
2. 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.
3. Section 9 of the GIPA Act confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
4. Section 12 of the GIPA Act provides for public interest considerations in favour of disclosure.
5. Sections 13 and 14 of the GIPA Act, relevantly provide: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 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. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). Table 1 Responsible and effective government 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, … 3 Individual rights, judicial processes and natural justice 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: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a health privacy principle under the Health Records and Information Privacy Act 2002.
6. Section 15 of the GIPA Act, provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information: A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
7. Section 55 of the GIPA Act 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. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note : An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
8. Section 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act), provides: (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless-- (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
9. Section 80 of the GIPA Act sets out those decisions which are 'reviewable decisions' under Part 5. Relevantly, 'a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)' is a reviewable decision pursuant to section 80(i).
10. A person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for review of that decision (section 100 GIPA Act). The onus on the agency is to establish that its decision is justified (section 105(1) of the GIPA Act).
11. Section 63 of the Administrative Decisions Review Act 1997 (NSW) provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
12. Where the Act provides a conclusive presumption of overriding public interest against disclosure of any of the government information as described in Schedule 1, the following is apposite: Schedule 1, clause 5 of the GIPA Act provides as follows: 5 Legal Professional Privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of the client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in some or all of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.

Evidence

1. Ms Campbell's evidence consisted of:

• Application filed 18 November 2020 - A1;
• Submission/statement 21 July 2021 - A2.

1. The Respondent's evidence consisted of:

• Affidavit Superintendent Kirstie Heyward 15 March 2021 - R1;
• Affidavit Senior Sergeant Pawsey 12 March 2021 - R2;
• Affidavit of Inspector Christine George 31 March 2021 - R3;
• Affidavit of Chief Inspector Vromans 23 March 2021 - R4;
• Confidential bundle - R5 (marked confidential).

1. I also note the written submissions filed by the parties.
2. The hearing commenced on 4 August 2021. The hearing was adjourned part-heard to allow Ms Campbell to cross-examine a witness whom she had not put the Respondent on notice that she wished to do so. The part-heard matter was listed on 21 September 2021. Ms Campbell decided that she did not wish to cross-examine any of the Respondent's witnesses at the further hearing. Orders were made for the filing of further written submissions to address a number of matters that arose in final submissions. Ms Campbell did not file any further submissions. The Respondent filed on 3 September 2021, short further written submissions.

Consideration

1. When applying the public interest test in s 13 of the GIPA Act, the Tribunal undertakes a two-step approach to the question of whether information has been properly refused if a conclusive presumption is not relied upon.
2. The agency in refusing to disclose information must rely on one or more of the s 14 table considerations. The Tribunal is then tasked to weigh the Respondent's case against the factors favouring disclosure, being mindful of the injunctions that appear in both ss 12 and 15 of the GIPA Act. (See Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 ("Camilleri") [24]-[26].)
3. The s 14 inquiry is directed to the administrative structure and context, and its conditions, to which the document or information belongs.

Conclusive presumption of an overriding public interest against disclosure

1. As set out above, s 14(1) of the GIPA Act provides a conclusive presumption that there is an overriding public interest against disclosure of any government information described in Schedule 1. Clause 5 of Schedule 1 relates to legal professional privilege as set out in paragraph [24] above.
2. In Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31] the following was said: 'The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interest in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information.'
3. Section 118 of the Evidence Act 1995 (NSW) sets out the test for legal professional privilege which is the same test used when applying Schedule 1 (clause 5) of the GIPA Act. That test is as follows:
4. (a) the information is a confidential communication between lawyer and client;
5. (b) the communication was created for the dominant purpose of providing legal advice to the client; and
6. (c) the respondent has considered whether it is appropriate to waive the privilege.
7. A report entitled 'ISSUE; withdrawal of H21309702-ABH and GBH Assault (DV) dated 10 November 2016' (RMS Document No: D/216/682622) is a document the Respondent claims legal professional privilege in accordance with Schedule 1, clause 5 of the GIPA Act.
8. The document is a communication between a Senior Constable of Police (S/C Forester), the officer in charge and a Senior Sergeant of Police (S/S Pawsey) who is a Police Prosecutor attached to the Police Prosecutions Command (holding the position of Area Prosecutions Coordinator). The Affidavits of Superintendent Heyward and Senior Sergeant Pawsey evidence this relationship. It is apparent that Senior Sergeant Pawsey is not a solicitor. However, at all times he was acting as a Police Prosecutor and the Respondent submits he was acting as the agent of the Commander of the Police Prosecutions Command, Superintendent Heyward. It is not in contest that Superintendent Heyward is a solicitor admitted to practice in New South Wales.
9. Section 117 of the Evidence Act 1995 (NSW) defines a 'lawyer' as 'an Australian lawyer, a foreign lawyer, or an employee or agent of either of them'.
10. An 'agent' at common law is a person who is appointed or authorised to create or affect legal rights and duties between another person (being their principal) and third parties (see Australian Competition and Consumer Commission (ACCC) v Flight Centre Travel Group [2016] HCA 49 at 76). Despite Senior Sergeant Pawsey not being a solicitor, I am satisfied that he is an agent of Commander of the Police Prosecutions Command (Superintendent Heyward), who is a solicitor admitted to practice in New South Wales. An implied agency relationship is created between the two and Senior Sergeant Pawsey acts as Superintendent Heyward's agent when he appears in his capacity as a Police Prosecutor before a New South Wales Court and provides legal advice in connection with that role.
11. The document in question is marked 'Sensitive - legal'. Despite the word 'confidential is not used', I accept the evidence of Superintendent Heyward and Senior Sergeant Pawsey that communication is confidential. There is no evidence that reveals the confidential nature of the communication has been waived in respect to any legal advice contained in the document. I have reviewed the document and find that it was prepared for the dominant purpose of providing legal advice and meets the criteria as set out in s118 of the Evidence Act. It is a confidential communication between an agent for Superintendent Heyward to the Respondent's officers, namely, Senior Constable Forester. There is no evidence that legal professional privilege has been waived. It, therefore, follows that disclosure of the legal advice would disclose information that would be 'privileged from production' for the purposes of clause 5(1) of Schedule 1 to the GIPA Act.
12. I find that the correct and preferable decision in respect of this document is that it should not be disclosed and the decision of the Respondent be affirmed.

Refusal to provide access to information on the basis of public interest

1. The Respondent has relied on the public interest test to refuse to release two documents to Ms Campbell, being: 1. a case report reference C69437657 (Lake Macquarie case report document); and 2. a case report reference C63048541 (Manning Great Lakes case report document).
2. In support of its decision the Respondent relies upon the Affidavits of Chief Inspector Vromans and Chief Inspector George.
3. When weighing the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests 'is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation.' (See Hurst v Wagga Wagga City Council [2011] NSWADT 307.)
4. The public interest considerations against disclosure in the table in s 14 of the GIPA Act depend on whether the disclosure 'could reasonably be expected to' have the stated effect. In Flack v Commissioner of Police (2011) NSWADT 286, the Tribunal confirmed that the proper construction of the phrase 'could reasonably be expected to' in the GIPA Act was to give the words 'their ordinary meaning' (see Flack at [40]).
5. The test of 'could reasonably be expected to' (have the relevant effect) is an objective one, and a question of fact. The 'reasonable expectation' means something that is 'more than a mere possibility, risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Limited v Piac (1992) 36 FCR 111; 108 ALR 163 see Leech v Sydney Water Corporation (2010) NSWADT 298 at [25].

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

1. The Respondent submits that the public interest consideration against disclosure in item 1(d) of the Table in s 14(2) of the GIPA Act applies to case report C63048541 and case report C64937657.
2. The Tribunal's Appeal Panel in Camilleri at [33] held that the question as to whether information is 'confidential information' is to be examined by reference to the agency's evidence as to the conditions under which it conducts the services within which the information was received. It was further held that in considering confidentiality, the focus should be on the point of receipt, and the administrative standards of community understandings which surrounded it (at [34]).
3. I have examined both case reports to which the Respondent seeks 1(d) of the Table at s 14(1) to be applied. The information contained within those documents relates to observations made by police officers during the investigation of an alleged assault between Ms Campbell and her ex-partner. I accept the Respondent's evidence that police officers owe a duty of confidence to individuals involved in a crime, whether that person is the victim, the person of interest or a witness. The Tribunal has previously considered and determined that members of the community have an expectation that communications with police will be kept confidential, and that any such loss of confidentiality may lead to a loss of the community's willingness to assist police with their enquiries.
4. I find that the first limb of confidentiality is established.
5. As it relates to public interest considerations against disclosure, the Respondent's core function is to provide police services for the State of New South Wales. These services include investigations for the prevention of crime, the detection of crime and protection of persons from injury or damage to property. In furtherance thereto, the Respondent utilises all means available to achieve and deliver these functions.
6. In Camilleri, the Appeal Panel accepted that public interest considerations against disclosure need to be examined at a broad operational level and those considerations are concerned with systemic features of the operation of government.
7. I find that there is significant public interest in ensuring that there is no prejudice suffered by the Respondent in exercising its policing functions which in my view should be given significant weight when determining the public interest considerations against disclosure in this matter.
8. In balancing the public interest considerations in favour of disclosure of the withheld information, when dealing with information relating to law enforcement functions, the rights of individuals are subordinate to the interests of the public at large.
9. For these reasons the Respondent's decision in relation to refusing access to case report C63048541 and case report C64937657 is affirmed.

Table s 14(1) - 3(a) reveal personal information

1. The Respondent submits that the public interest consideration against disclosure contained in item 3(a) of the Table to s 14 of the GIPA Act applies to case report C63048541, notebook entries C63048547, court attendance H121309702, fact sheets H121309702, case report C64937657, court attendance H68179384 and fact sheets H68179384 and notebook entries C64937657.
2. The Respondent has released to Ms Campbell various parts of each of those documents, redacting information which would disclose the personal information of persons so described in those documents. In my view, it is essential that this information not be disclosed so as to ensure people's personal information be protected in accordance with the operation of 3(a) of the Table.
3. I am also not satisfied when considering the Appeal Panel's decision in Commissioner of Police, NSW Police Force v Field (2016) NSWCATAP 59 at [63], [64], and [69] that the personal information of persons described in those documents has been publicly disclosed. It is in my view not sufficient for the information to have been disclosed to the Applicant previously which may enable an exception to operate for the information to be given to Ms Campbell. In my view, the information has not been publicly disclosed which would enable it to fit within the term 'reveal' in clause 1 of Schedule 1 of the GIPA Act.
4. The public interest considerations against disclosure of the withheld information outweigh the public interest considerations in favour of disclosure.
5. The decision of the Respondent in regard to these documents is affirmed.

Section 14 Table 3(b) - contravene an information protection principle under the Privacy and Personal Information Act 1988 or a health privacy principle under the Health Records and Information Act 2002

1. The Respondent submits that the public interest considerations against disclosure contained in item 3(b) of the Table to s 14 of the GIPA Act applies to case report C63048541, notebook entries C63048547, court attendance H121309702, fact sheets H121309702, case report C64937657, court attendance H68179384 and fact sheets H68179384 and notebook entries C64937657.
2. The IPP contained in s 18 of the Privacy and Personal Information Act 1988 (PPIP Act) prohibits the Respondent from disclosing personal information to a person (other than the individual to whom the information relates), unless: 1. the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or 2. the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with s10, that information of that kind is usually disclosed to that other person or body, or 3. the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or other persons.
3. Having reviewed the documents listed in [60] above, I find that there are no exceptions to s 18 of the PPIP Act which apply. Should disclosure of the information sought by Ms Campbell be granted, in my view it would contravene an information protection principle of the PPIP Act.
4. I find, the public interest considerations against disclosure of the withheld information outweighs the public interest considerations in favour of disclosure.
5. I, therefore, find that the decision of the Respondent should be affirmed.

Conclusion

1. For the reasons as set out above I am satisfied that the correct and preferable decision should be in the same terms as made by the Respondent.
2. I find that the decision of the Respondent is affirmed.
3. In all other respects I make no further order.

ORDER 1. The decision of the Respondent made on 19 October 2020 and 18 January 2021 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

Amendments 18 January 2022 - First name of the applicant corrected within the Coversheet and at [1] of the Reasons. "Debra" replaced with "Deborah". 04 February 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 the name of the firm representing the Respondent has been amended. 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: 04 February 2022