Cheung v Commissioner of Police

NCAT Administrative and Equal Opportunity|2019-12-06

REASONS FOR DECISION

On 21 November 2018 the applicant, Ms Sharon Cheung, who was at the time the holder of a P2 licence, was pulled over by police conducting roadside random breath testing (RBT). While conducting the RBT, the police officer noticed that Ms Cheung appeared to be playing music over the car's speakers via a Bluetooth connection to her mobile phone. The officer issued Ms Cheung with a penalty notice for the offence of "Learner or provisional P1 or P2 licence holder use mobile phone while driving".
The police officer recorded the interaction between himself and Ms Cheung on his body-worn camera. He informed Ms Cheung that the recording was taking place.
Ms Cheung subsequently sought a review of the penalty notice but was unsuccessful.
On 28 December 2018 Ms Cheung made an application to the respondent, the Commissioner of Police, NSW Police Force (NSW Police), under the Government Information (Public Access) Act 2009 (the GIPA Act) for access to all documents in relation to the penalty notice and a copy of the video recording made by the officer. In a decision dated 4 February 2019 she was provided with access to documents but was refused access to a copy of the video recording, although NSW Police was prepared to grant her access to view the footage.
Ms Cheung took up the offer to view the view the video footage but still seeks access to a copy of the recording. Ms Cheung had sought access to some information about which NSW Police had decided no such information was held by it, but Ms Cheung does not seek review of that decision.

The legislative scheme

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
It was not disputed that the information the subject of this application is government information that is held by an agency (s 4(1) of the GIPA Act).
A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision not to provide access in the way requested by an applicant is a reviewable decision for the purposes of the GIPA Act (s 80(1)). The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure" (s 5 of the GIPA Act). There are two situations in which there will be an overriding public interest against disclosure. The first concerns government information described in Schedule 1 to the GIPA Act and is not relevant to these proceedings.
In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a table in s 14 of the GIPA Act.
In the second situation, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure. In Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [24] the Appeal Panel stated that the GIPA the Act "envisages a two-step approach to the question of whether information has been properly refused".
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account (s 55 of the GIPA Act).
In Camilleri the Appeal Panel held that the question of whether there are public interest considerations against disclosure needs to be examined at a broad operational level. Considerations which are connected with the particulars of the instant situation are relevant to the second stage of the process which involves the balancing of the public interest considerations against disclosure against the factors favouring disclosure (at [25] - [26]).

Public interest considerations against disclosure

The respondent bears the onus of establishing the existence of one or more of the relevant public interest considerations against disclosure (s105 of the GIPA Act). NSW Police has identified only one public interest consideration against disclosure.
Clause 6(1) of the table to s 14 refers to secrecy provisions and provides that there is a public interest consideration against disclosure of information if disclosure of the information by any person could reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. The relevant secrecy provisions are contained in the Surveillance Devices Act.
The parties agree that the video footage in question contains "protected information" as defined in s 39 of the Surveillance Devices Act, being any information obtained from the use, in accordance with s 50A, of body-worn video by a police officer. (Section 50A sets out how body-worn video is to be used by an officer and there is no suggestion that the officer who made the recording acted other than in accordance with those requirements.) Section 40(1) of the Surveillance Devices Act creates an offence with respect to the use, communication or publication of any protected information punishable by a term of imprisonment. Section 40(2) creates an aggravated form of offence in certain circumstances. The respondent submits, and it appears from her submissions that Ms Cheung agrees, that s 40 is a secrecy provision for the purposes of clause6 of the table. I agree with the submission of the respondent.
Sub-sections 40(3) to (9) set out various exceptions to the offence provisions. Broadly speaking, these exceptions to the prohibition on use, communication or publication of protected information relate to law enforcement activities, the protection of the safety of persons or property and the conduct of public officers. The prohibition also does not apply in certain circumstances where the chief officer of a law enforcement agency consents to the communication or publication of the protected information by an officer of the law enforcement agency.
There is also a specific exemption in s 40(4A) concerning information obtained from the use, in accordance with s 50A, of body-worn video by a police officer. Such information may be used, published or communicated in connection with the exercise of a law enforcement function by a member of the NSW Police Force, in connection with the education and training of police officers and in certain circumstances prescribed by the Surveillance Devices Regulation 2014 (the Regulation). Clause 4 of the Regulation sets out certain additional circumstances in which the information obtained from the use of a body-worn camera by a police officer may be used. The matters set out there are not relevant to this decision.
Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "… The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
Ms Cheung notes that clause 6 applies only where disclosure could "reasonably be expected to" contravene a secrecy provision and that there are a number of circumstances in which disclosure is in fact permitted under s 40 of the Surveillance Devices Act. She states that, if disclosure is permitted by one of these exceptions, clause 6 will not apply. In her submission there are various exceptions in s 40 which would permit the disclosure to her of a copy of the video footage from the body-worn camera.
In particular, Ms Cheung refers to s 40(4A)(a) which permits the use, publication or communication of information obtained from the use, in accordance with s 50A, of body-worn video by a police officer in connection with the exercise of a law enforcement function by a member of the NSW Police Force. She argues that issuance of the penalty notice was in the exercise of a law enforcement function by a member of the NSW Police Force and that release of the footage would enable review of whether an offence was committed and whether the penalty notice was issued correctly. She states that release in these circumstances satisfies the threshold of being "in connection with" a law enforcement function. In addition, Ms Cheung submits that consent to release of the information by the chief officer is permissible where communication or publication is necessary or desirable in the public interest and that public interest outweighs any intrusion on the privacy of the person to whom the footage relates (s 40(5) -(7)). She argues that it is clearly in the public interest for her to have her own personal information and there is therefore no intrusion on any person's privacy.
Ms Cheung argues for a very broad construction of the term "in connection with the exercise of a law enforcement function by a member of the NSW Police Force" in s 40(4A)(a) of the Surveillance Devices Act. On her construction any information recorded by body-worn video in the course of a police officer exercising a law enforcement function would be able to be used, published or communicated by any person at any time. Such a construction is inconsistent with the classification of body-worn video as "protected information" within the Surveillance Devices Act. I agree with the submissions of the NSW Police that what is required is a more direct connection between the use, publication or communication of the information and the exercise of a law enforcement function by a police officer. For example, that the information is able to be used for a function such as the investigation and prosecution of a crime. Such a construction is supported by the second reading speech to the Surveillance Devices Amendment (Police Body-Worn Video) Bill 2014 referred to in the submissions of the NSW Police. I am of the view that there is no law enforcement function being exercised in the circumstances outlined by Ms Cheung.
In relation to the exemption to the prohibition on the use, publication or communication of "protected information" in circumstances where the chief officer consents to its release, there is no suggestion in any of the material before me that Ms Cheung in fact has made any request to the chief officer that he consent to the release of the information under the Surveillance Devices Act. What is at issue in these proceedings is whether disclosure under the GIPA Act could reasonably be expected to contravene the secrecy provisions in the Surveillance Devices Act. Sub-sections 40 (5) - (7) provide an entirely separate means by which a person may seek access to "protected information". As NSW Police points out, there are fundamental differences between the two pathways and a decision by the chief officer to not consent to release is not reviewable by the Tribunal.
Ms Cheung refers to the decision of the Tribunal in Place v Department of Finance, Services and Innovation [2016] NSWCATAD 278 to support her argument that for clause 6 to apply to the secrecy provisions in s 40 of the Surveillance Devices Act, NSW Police must demonstrate that potentially relevant exceptions to the prohibition against disclosure would not operate in relation to the information sought. Ms Cheung's proposition, in my view, is a misreading of the Tribunal's decision in Place. There the Tribunal was dealing with a provision in the Building Professionals Act 2005 which prevents disclosure of information unless disclosure is made in certain circumstances. The Tribunal found that because the relevant provision contained very broad exceptions to disclosure, including disclosure "in connection with the administration or execution of this Act" and "with other lawful excuse", clause 6 did not apply in the circumstances of that case.
I am satisfied, contrary to Ms Cheung's submissions, that none of the exceptions to the prohibition on the use, publication or communication of "protected information" applies to this application. I am also satisfied that clause 6 has application in this case in relation to s 40 of the Surveillance Devices Act. Pursuant to clause 6(2) of the Table to s 14, the public interest considerations under this clause extend to a consideration of the policy that underlies the prohibition against disclosure.
NSW Police submits that the terms of the Surveillance Devices Act create a very strict and limited regime through which information obtained through the use of surveillance devices, including body-worn video, may be disclosed. Restricting the use, publication and communication of information obtained through the use of surveillance devices was identified as one of the objects of the Surveillance Devices Act (Surveillance Devices Bill 2007, Explanatory Note, p 1).
NSW Police submits that the strictness of the Surveillance Devices Act regime is reflected in the serious penalties available for breaches of s 40(1) and 40(2). NSW Police submits that the exceptions to the prohibition on the use, communication and publication demonstrates that they are limited in number and in scope. NSW Police submits that the limited nature of the exceptions demonstrates an intention to strictly control information obtained through a surveillance device.
In Voitenko t/as Access Party Hire v Zürich Australian Insurance Limited [2016] NSWSC 324 Hall J observed at [99]: The fact that a breach of s 40… is punishable by a term of imprisonment with the above maximum penalties underscores the legislature's intention to secure protected information by the imposition of a substantial punishment in the event of a transgression.
In Clarke v Blacktown City Council [2013] NSWADT 36, the Tribunal confirmed that the policy which underlies the prohibition on disclosure in the secrecy provision is relevant, and that the extent to which the prohibition on disclosure is subject to exceptions may assist in identifying the policy behind the provision.
While Voitenko cited above was not dealing with a body-worn video recording, the comments made by Hall J are nevertheless relevant to the use of such devices. Hall J referred, at [96] - [97], to the need to ensure the integrity of investigations by law enforcement officers. He also stated at [87] that the prohibition in s 40 "evidences a legislative intent to limit the impact of surveillance upon the right to privacy". The use of body-worn video by police was provided for by amendments made to the Surveillance Devices Act by the Surveillance Devices Amendment (Police Body-Worn Video) Act 2014. The second reading speech to the Surveillance Devices Amendment (Police Body-Worn Video) Act 2014 states: Appropriate safeguards in the bill maintain an individual's right to privacy by regulating the use, communication and publication of information obtained from body-worn video devices. The restrictions that currently apply to information obtained from other types of surveillance devices will generally apply to information obtained using body-worn video devices. The restrictions will prohibit the use, communication and publication of information unless necessary for a specified purpose such as the investigation of a complaint against a police officer. (Parliamentary Debates, Legislative Assembly, 22 October 2014, 1639)
NSW Police points out that privacy considerations also figure in the exception to the prohibition on the use, communication or publication of protected information in s 40(5) whereby the chief officer may consent to its release. One constraint on the power of the chief officer to consent to the communication is that the public interest in communicating information outweighs any intrusion on the privacy of the person to whom it relates or any other person affected by its communication (s 40(6)). The chief officer must also take into account the manner in which the protected information will be dealt with after it is communicated (s 40(7)).
Ms Cheung also notes that there is no suggestion that disclosure of the video footage would in fact prejudice the integrity or efficacy of any particular investigation or other law enforcement activity. Ms Cheung submits that, in general, the level of secrecy attaching to body-worn video footage is much lower than over information obtained from other surveillance devices under the Surveillance Devices Act. This is because the use of body-worn video cameras is required to be overt and the person being recorded is aware that recording is occurring and necessarily aware of that recording's contents. Furthermore, unlike other surveillance devices covered under the Surveillance Devices act, a warrant is not required for the use. She states that the use of body-video is a minor and routine matter in a law enforcement context.
Ms Cheung accepts that important privacy considerations underpin the secrecy provisions in s 40. She submits, however, that privacy concerns are irrelevant and inapplicable to her case, primarily because she is the only person depicted in the video footage. She maintains there is no intrusion on privacy for her to be given footage of herself and she should therefore be entitled to access her own information.
As noted above, the circumstances of Ms Cheung's own case are not relevant to the question of whether there exists a public interest consideration against disclosure (see Camilleri). The particular matters she has raised concerning her circumstances, however, will be referred to below.
While use of body-worn video is overt unlike the use of other surveillance devices, it is clear that Parliament has included information obtained from the use of body-worn video by a police officer within the provisions concerning "protected information". It is also apparent from the extract set out above from the Parliamentary Debates that Parliament intended that the use, communication and publication of information obtained from the use of body-worn video by a police officer is to be generally prohibited unless necessary for a specified purpose. The fact that significant penalties apply to an authorised disclosure of such information highlights the seriousness of the Parliament's intention to significantly restrict disclosure. The overwhelming policy considerations behind such a prohibition relate to the integrity of investigations and other law enforcement activities and the privacy of the individuals concerned. These are very important considerations and the limited nature of the exceptions to the prohibition demonstrates an intention to strictly control information obtained through a surveillance device, including body-worn video.
As noted above, there has in fact been no disclosure of the information under the provisions of the Surveillance Devices Act. I am satisfied that the secrecy provisions of the Surveillance Devices Act constitute a public interest consideration against disclosure of the identified information because its release could reasonably be expected to constitute a contravention of s 40 of that Act. In my view, clause 6(1) of the Table to s 14 should be given significant weight.

Public interest considerations in favour of disclosure

Ms Cheung submits that there are several public interest considerations in favour of disclosure. She notes, and the respondent agrees, that the information she seeks is her own personal information. Ms Cheung is the only person in the footage, or is at least the primary subject of the recording.
As the Information Commissioner has set out in Guideline 4: Personal information as a public interest consideration under the GIPA Act, the public interest in providing people with access to their own information is extremely strong and should only be displaced where the considerations against disclosure are overriding.
As set out above, Ms Cheung originally requested access to a copy of the recording for the purposes of seeking a review of the penalty notice with which she had been issued. She contends that the disclosure of the information in these circumstances could reasonably be expected to facilitate procedural fairness and the administration of justice. I note, however, that Ms Cheung no longer seeks access to a copy of the recording for any purpose associated with a review of the penalty notice. NSW Police also points out that the Surveillance Devices Act specifically creates an exception to the prohibition on use of protected information for court proceedings.
Ms Cheung submits that providing her with a copy of the video footage could reasonably be expected to enhance government accountability and transparency. As I understand it, her submission is that the current regime in the Surveillance Devices Act is unbalanced as police officers have a wide discretion in relation to the use of body-worn video while persons such as herself are unable to decline to be recorded and are not given a copy of the footage of themselves. Providing her with a copy would go some way to redressing this imbalance.
Ms Cheung states that the interaction captured in the video footage followed a routine vehicle stop and random breath test. She states that the Highway Patrol officer appears to have followed all applicable policies and practices and proactively explained the law to her. She submits, that in the circumstances, disclosure of the information would inform the public about those policies and practices, including whether they are followed, and this in turn would enhance public confidence in law enforcement. She further submits that that disclosure of the video footage would promote open discussion on an issue of public importance, namely the effectiveness of penalty notices as a deterrent to the use of mobile phones which is considered to be a significant safety risk to road users.
NSW Police appears not to dispute that there are public interest considerations in favour of disclosure of a copy of the video footage to Ms Chong. However, NSW Police submits that these considerations should be given minimal weight when balanced against the public interest considerations against disclosure.

Where does the balance lie?

Ms Cheung was provided with view only access to the video footage by NSW Police but refused access to a copy of the footage. Section 72 of the GIPA Act provides that access to government information in response to an access application may be provided in a number of ways, including by providing access to a record containing the information together with such facilities as may be necessary to enable the information to be read, viewed or listened to as appropriate. An agency must, however, provide access in the way requested by the applicant unless certain factors come into play, including that there is an overriding public interest against disclosure of the information in the way requested by the applicant (s 72(2)(d)). NSW Police were of the view that there was an overriding public interest against disclosure of a copy of the information to Ms Cheung but, applying the reasoning of the Tribunal in Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48, decided that disclosure of the information by permitting Ms Cheung to view the video footage would alter the balance between the competing public interests so that the public interest consideration against disclosure no longer outweighed the public interest consideration in favour of disclosure.
NSW Police states that view only access allows for the integrity of the Surveillance Devices Act regime to be better maintained. NSW Police submits, and I accept, that providing a copy of the video footage means that there are no controls placed over the use of that footage. This is so because access under the GIPA Act provides to all intents and purposes access to the world.
The question to determine is whether the public interest considerations against disclosure of the withheld information in the form sought by Ms Cheung, on balance, outweigh the public interest considerations in favour of disclosure. Ms Cheung submits that the public interest considerations in favour of disclosure far outweigh any considerations against disclosure. As identified above, the only public interest consideration against disclosure is that disclosure of the information could reasonably be expected to constitute a contravention of the secrecy provision embodied in s 40 of the Surveillance Devices Act. Ms Cheung submits that minimal weight ought to be accorded to the sole consideration against disclosure.
NSW Police submits that a number of the public interest considerations in favour of disclosure identified by Ms Chong are matters that are already dealt with by the statutory exception is to the prohibition against the use, communication and publication of "protected information" as set out in the Surveillance Devices Act and Regulation. In my view, however, the fact that disclosure of the information may be permitted under the Surveillance Devices Act and Regulation in some circumstances analogous to, or at least similar to, those referred to in the public interest considerations identified by Ms Cheung, does not detract from or diminish the weight to be given to those considerations under the GIPA Act.
The use of surveillance devices, including body-worn video, is an essential and integral part of the detection and investigation of criminal offences in New South Wales. The legislation governing the use of such devices is also designed to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices. As a result, the Surveillance Devices Act and Regulation establish a strict regime for the collection, use and disclosure of information gathered through the use of the surveillance device, including body-video footage. In my view, for these reasons considerable weight should be given to this public interest consideration against disclosure.
Leaving to one side for the moment the fact that the information being sought is personal information about Mr Cheung, I find that the public interest considerations in favour of disclosure discussed above are not particularly strong. Disclosure of a copy of the video footage would in the current situation provide little assistance in facilitating procedural fairness and the administration of justice. Disclosure of the information in issue would not provide any substantive means of enhancing government accountability and transparency around the use of body-worn video or indeed, significant information about police operations with respect to vehicle stops and random breath testing. Neither, in my view, would disclosure of the information lead to the promotion of open discussion of the effectiveness of laws relating to mobile phone use while driving. These matters should therefore be accorded little weight. The fact that the information is the personal information of Ms Chong should, however, be accorded more weight. As she points out she is the only person who is the subject of the video footage and privacy considerations are less significant in this case than they might be in the ordinary course.
In conclusion, for the reasons I have given, in weighing the competing public interests, on balance, I am not satisfied that the public interest considerations in favour of disclosure outweigh the strong public interest consideration against disclosure of the information in the form requested. Accordingly, it is my view that the respondent's decision to refuse access to a copy of that information is the correct and preferable decision. The decision should therefore be affirmed.
Although it is not necessary for me to decide, I note that the strong considerations in favour of access to the information in that the information is the personal information of Ms Cheung, can be satisfied by Ms Cheung being granted access, as she has been, to view the footage. Access in that form would change the balance in the considerations in favour of and against disclosure.

Order 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2019

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Judgment (8 paragraphs)

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Cited By (10)