CJO v NSW Police Force

NCAT Administrative and Equal Opportunity|2016-11-18

REASONS FOR DECISION

In these reasons the names of some private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as CJO.
The Applicant made an access application to the Respondent under section 9(1) of the Government Information (Public Access) Act 2009 ("the GIPA Act") seeking access to information held by the Respondent. The access application sought: A copy of all intelligence, event reports and notebook entries made by Police concerned with an encounter I had with them in Sunday 5th July 2015 at Pyrmont.
The access application was deemed to be refused under section 63 of the GIPA Act and the Applicant applied for internal review of the deemed decision.
On internal review the decision was taken to release an Information Report dated 5 August 2012 ("the Information Report") to the Applicant, subject to redactions pursuant to clauses 1(d) and 2(b) of the table to section 14 of the GIPA Act on the basis that there were overriding public interest considerations against the disclosure of the redacted information. The redacted information is the names of the police officers.
The Respondent contends that the disclosure of the names of the police officers could reasonably be expected to expose those persons to an immediate and serious risk of harm and that, on balance, there is an overriding public interest against the disclosure of that information pursuant to clause (3)(f) of the table to section 14 of the GIPA Act.
The Applicant applied to the Tribunal for external review of the Respondent's decision.
The parties have agreed that the matter is to be determined on the basis of the material filed without the need for a hearing.

Applicable legislation

The Tribunal's function on review is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Review Act 1997.
The objects of the GIPA Act are set out in section 3 as follows: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (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.
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Under section 9(1) of the GIPA Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against the disclosure of the information.
Section 12 of the GIPA Act states that there is a general public interest in favour of disclosing government information and nothing in the GIPA Act limits the public interest considerations in favour of disclosure which may be taken into account when determining whether information is to be disclosed. Section 12(2) provides: 12 Public interest considerations in favour of disclosure ... The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) 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. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 13 of the GIPA Act provides that there is an "overriding public interest against disclosure" of government information 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. This balancing exercise involves:

identifying the public interest in favour of disclosure;
identifying the public interest against disclosure, and
determining where the balance lies.

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.
Section 14(2) of the GIPA Act provides: 14 Public interest considerations against disclosure ... (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. ...
Clauses 1(d), 2(b) and 3(f) of the table to section 14 of the GIPA Act provide: 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 … 2 Law enforcement and security 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): … (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law ... 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: … (f) expose a person to a risk of harm or of serious harassment or serious intimidation …
Section 55 of the GIPA Act provides: "(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."
Section 58(1)(d) of the GIPA Act provides that an agency may decide an access application by deciding to refuse to provide access to information because there is an overriding public interest against the disclosure of the information.
There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act provides jurisdiction.
Section 105(1) of the GIPA Act provides that the burden of establishing that the decision is justified lies on the Respondent.
Clause 7(c) of Schedule 1 to the GIPA Act provides: 7 Documents affecting law enforcement and public safety It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents: .. (c) a document created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence, ...

Could reasonably be expected

The requirement, common to all the public interest considerations against disclosure in the Table to section 14, is that disclosure could reasonably be expected to have the nominated effect.
The phrase 'could reasonably be expected to' has been the subject of judicial consideration with respect to its use in the Freedom of Information Act 1989 ("the FOI Act") and the Commonwealth Freedom of Information Act 1982 ("FOI Act (Cth)"). The words in the phrase are to be given their ordinary meaning. In Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they 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 Commonwealth or any 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...
The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at 106.
In "B" and Brisbane North Regional Health Authority [1994] 1 QAR 279 at [154] - [160] the Commissioner analysed the meaning of the phrase "could reasonably be expected to" by reference to relevant Federal Court decisions. The Commissioner said that: The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.
The words "could reasonably be expected" refer to an expectation that is based on reason, that is to say one for which real and substantial grounds exist when looked at objectively. (Searle Australia Pty Limited v Public Interest Advocacy Centre and Another (1992) 108 ALR 163 at 176.)
In McKinnon v Blacktown City Council [2012] NSWADT 44 Judicial Member Molony stated: 42 … the public interest consideration against disclosure in clause 1 and 3 of the Table requires an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities. 43 In submissions the Agency argued that the suggestion that a fact had to be established on the balance of probabilities was at odds with established authority in dealing with the same phrase in the context of the Freedom of Information Act 1989. The Agency referred to the Tribunal decisions in Leech and in Neary v State Rail Authority [1999] NSWADT 107, where the President said, at [35] - .. it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. 44 In my view the weight of authority establishes that it is necessary for 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 as explained in Cockroft and elucidated in McKinnon v Secretary, Department of Treasury.
In my view this is the correct basis for determining whether the disclosure of a document "could reasonably be expected" to have a particular effect.
With respect to each public interest consideration against disclosure upon which it relies, the Respondent is to show that there is something more than a possibility, risk or chance that disclosure of the information could have the nominated effect.
Schedule 4 to the GIPA Act provides these definitions: "disclose" information includes make information available and release or provide access to information. "reveal" information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure ).

Clause 3(f) of the table to section 14

I recently considered Clause 3(f) in the matter of Salmon v Corrective Services NSW [2016] NSWCATAD 257 and in Smith v Pittwater Council [2016] NSWCATAD 67. In those mattes I adopted a summary of a number of relevant authorities by Judicial Member Molony in AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90 from paragraphs [82] to [94]. He stated: Disclosure of the information could reasonably be expected expose a persons to risk of harm or of serious harassment or serious intimidation (s 14 Table 3(f)) 82 The question here is whether if the information is disclosed, it could reasonably be expected that the disclosure would "expose a person to a risk of harm or of serious harassment or serious intimidation." 83 The GIPA Act does not contain a definition of harm, serious harassment or serious intimidation. It is to be noted that harm is not qualified by the adjective serious. The Macquarie Dictionary online defines harm thus - noun 1. injury; damage; hurt: to do someone bodily harm. 2. moral injury; evil; wrong. -verb (t) 3. to do harm to; injure; damage; hurt. -phrase 4. in harm's way, in danger. 5. out of harm's way, out of danger. [Middle English; Old English hearm] 84 Harm is a concept frequently used by the law. The criminal law prohibits assaults occasioning bodily harm. This has been interpreted in its ordinary meaning to" include any hurt or injury calculated to interfere with the health or comfort of [the injured person]": see R v Donovan [1934] 2KB 498. "Serious harm" is a concept used in criminal defamation, which requires proof of an intent to cause serious harms. Section 40 of the Civil Law (Wrongs) Act 2002 (ACT) on the other hand defines "harm" to be harm of any kind, including personal injury, damage to property and economic loss. Harm is also a concept in child protection: in section 9 of the Child Protection Act 1999 (Qld) it is defined as "as any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing." 85 In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. 86 Serious harassment is a separate and distinct concept. The Macquarie Dictionary online defines harass - verb (t) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment. [French harasser, from Old French harer set a dog on] 87 The concept of harassment is one familiar to anti-discrimination law, with sexual harassment being prohibited and subject to remedies. A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9). 88 In Henderson v McKenzie [2009] ACTSC 39 Higgins CJ was considering a charge of stalking with intent to harass contrary to s 35(1)(c) of the Crimes Act 1900 (ACT). His Honour said, at [6-8] - 6. Harassment is not defined in the Crimes Act, nor, indeed, in the Criminal Code 2002 (ACT) (Criminal Code). However, it does seem in context to bear its usual meaning, ie "to trouble by repeated attacks; harry; (1) to worry or unnerve (an enemy) by continuous small attacks; (2) to disturb, worry, torment, distress with annoying labour, care or misfortune" (World Book Dictionary); "Vex by repeated attacks; trouble, worry" (Concise Oxford Dictionary). 89 All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment. 90 The GIPA Act makes specific mention of serious intimidation as another element of the public interest consideration against disclosure in point 3(f) of the Table to s 14, despite the fact that the two concepts of intimidation and harassment are clearly related. 91 Intimidation is defined by The Macquarie Dictionary online as - verb (t) (intimidated, intimidating) 1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear: to intimidate a voter. [Medieval Latin intimidātus, past participle, made afraid. See TIMID] 92 Intimidation is defined in s 7 of the Crimes, Domestic and Personal Violence Act 2007 (NSW) thus - (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. 93 In PE V MU [2010] NSWDC 2 William DCJ referred to that definition and said - 15...intimidatory conduct... is conduct amounting to harassment or molestation or contact by one person with another such as would cause the other person to fear for their safety. 16 Harassment is not defined in the Act but in its legal sense refers to ongoing behaviours that are found to be threatening or disturbing. ... 94 Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient.
In AEZ v Commissioner of Police the Tribunal considered that "harm" in the context of clause 3(f) of the table to section 14 of the GIPA Act means "a real and substantial detrimental effect on a person" which may have a detrimental effect on their "physical, psychological or emotional wellbeing".
The Tribunal determined that the threshold to be reached was for the decision-maker to be satisfied that if the information was disclosed, it could be reasonably expected that the disclosure would expose a person to serious harassment, and that the assessment of the impact of the conduct on the individual concerned was an objective one. The Tribunal also found that the particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment.
The requirement that the intimidation or harassment be serious means that the decision maker must be satisfied that the release of the information could reasonably be expected to expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient".

The statement of Lesley Honeyman

In support of its decision to refuse to release the names of the police officers referred to in the Information Report the Respondent relies on the statement of Lesley Honeyman, Director, Intelligence Directorate, NSW Police Force.
Ms Honeyman stated that the three officers whose names have been withheld are attached to the NSW Police Force's State Crime Command Gangs Squad Intelligence Unit. The State Crime Command Gangs Squad Intelligence Unit is a unit of the Intelligence Directorate which is responsible for the collation, review, intelligence development and dissemination of intelligence for the NSW Police Force. She gave evidence of her view in regard to the potential risk associated with releasing the names of the police officers referred to in the Information Report.
The Respondent submits on an objective assessment of Ms Honeyman's evidence there is a real (as opposed to speculative or fanciful) risk that the disclosure of the names of NSW Police Force officers involved in intelligence activities may expose those officers to harm.

Inspector Marco Carlon

The Respondent relies on the statement of Inspector Marco Carlon. Inspector Carlon gave evidence of discussions that he had with the Applicant and places in context his discussion with the Applicant in regard to the withheld names of the three intelligence review officers.
He conceded that he did have discussions with the Applicant in regard to the withheld names but stated that the Applicant has misstated the content of the conversation.
Inspector Carlon stated that when he spoke with the Applicant by phone on 13 April 2016 they reached an agreement that the Respondent would release the Information Report but with the names of the officers redacted. He stated that the Applicant told him that he 'had no interest in the names of the officers.'
He subsequently learned that the Applicant was seeking release of the names and raised this with the Applicant. His evidence is: I told the Applicant I had been informed that he was now requesting the names of the officers to be released. I asked him why he had changed his mind. He stated, contrary to what he said on 13 April 2016, that he knows people who work at State Crime Command and wished to know if any of them were the officers to whom the IR had been disseminated to. He went on to say that if I simply told him the names of the officers over the phone, at that moment, he would be satisfied and would discontinue his NCAT proceedings. I told him that I did not have the delegation to make the decision to release the information and that I would need to get those instructions. After the phone call, I considered the issue and came to the view … that because the officers' names were not considered personal information, they could not be protected. While the preferred position was to not release them, I was required to make decisions by applying the law. As such I took the view that the best outcome was to provide the information that the Applicant needed for his purposes, verbally over the phone. My view was that, seeing as he only wanted to confirm whether or not he knew the officers, he would be able to achieve this by hearing the first initial and surname of the names only.
As noted above, Inspector Carlon disputes the Applicant's evidence in regard to the content of the conversation that he had with the Applicant. However, he does concede that he subsequently wrote to the Applicant stating: As discussed on the phone with you this morning, I am in a position to provide you with the names of the officers redacted in the Information report on the basis that you withdraw your NCAT application.
His evidence is that this offer was on the basis that it is done verbally over the phone. At the time of the offer, he was of the view that the GIPA Act did not protect the names of the officers. He was attempting to find a compromise so that while the officers' names would be disclosed to allow the Applicant to sufficiently verify if he knew them, they would not be disclosed in full and on paper, such that this information could be released to the world at large. He was attempting to mitigate the risk, while at the same time, comply with the GIPA Act. He now considers that releasing the names, even verbally over the phone, would not be appropriate.

Respondent's Submissions

The Respondent submits the Tribunal can be satisfied, on an objective basis, that the disclosure of names of police officers working in the NSW Police Force's State Crime Command Gangs Squad Intelligence would expose those officers to a real risk of harm. It submits that the risk of harm to those officers could "reasonably be expected" on an objective basis and warrants the non-disclosure of their names.
The Respondent further submits that the non-disclosure of the names of persons involved in intelligence and/or counter-terrorism roles is consistent with the approach taken by Parliament in Schedule 1 clause 7 of the GIPA Act which makes it a conclusive presumption against the disclosure of information contained in a document created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence.
The Respondent submits that if the Information Report had been created by the State Crime Command of the NSW Police Force, as opposed to having been referred to them as was the case in respect of this Information Report, then the names of the officers included in the Information Report would not be disclosed because it would conclusively presumed that there is an overriding public interest against the disclosure of those names. The Respondent submits the Tribunal should take a consistent approach in the treatment of the names in this instance.

Applicant's Evidence and Submissions

In contrast to the Respondent's submissions, the Applicant contends that the Intelligence Report does not contain any material that is related to terrorism and that none of the three officers are involved in "terrorism". He also stated that when the Information Report was released the names of three other police officers were also released. He further stated that Inspector Carlon had offered to provide him with the names of the three officers if he agreed to withdraw his application.
He submits that the question here is whether, if the information is disclosed, it could reasonably be expected that the disclosure would "expose a person to a risk of harm or of serious harassment or serious intimidation."
He agrees that all members of the NSW Police Force are at risk of being "the target of terror-related activities". However, he submitted that Ms Honeyman provided no evidence to substantiate her view that "staff attached to the Intelligence Directorate" and their "families" will be placed at risk if this Intelligence Report is released.
In particular, he argues that there is no evidence of:

the "real and detrimental effect" on each of the three intelligence officers "which may have a detrimental effect on their physical, psychological or emotional wellbeing" should this material be released to this applicant;
the "serious intimidation and harassment" that is "heavy, weighty or grave and not trifling or transient" that would occur to each of the three intelligence officers if the information was disclosed to this applicant;
the particular "circumstances and vulnerabilities" related to each of the three police officers should this information be released to this applicant; or
any conduct from the Applicant that could imply or suggest a potential future risk to each of these three Intelligence Officers both individually and to their families in which he would expose them to harm or serious harassment or serious intimidation.

The Applicant submitted that the statement of Ms Honeyman has no relevance to the issue before the Tribunal and should not be relied upon to refuse to release the names of the three officers.
He further submits that Ms Honeyman did not provide a link between "terror-related activities" and the content of the Intelligence Report. She did not provide any evidence to substantiate her view that disclosure of the three names would expose those officers and their families to a real risk of harm, harassment or intimidation.
The Applicant stated that the name of an Intelligence Officer working in the State Crime Command has been disclosed to him. He submits that due to this disclosure the Tribunal would be entitled to assume that the NSW Police Force consider that officer to be at less risk of harm from terror-related activities and other intelligence activities he might be engaged than the other three police officers also working in the Intelligence Directorate and to be of less risk of harm, harassment or intimidation. He submits that as the Respondent has provided the name of one intelligence officer working in the Intelligence Directorate there should be no issue in providing the name of the three other offices also working in the Intelligence Directorate, particularly as the Respondent has not provided any explanation to the Tribunal to explain the distinction between the officers.
Further, he argues that as Inspector Carlon was prepared to provide the surnames and first initial of the three "intelligence" officers, the Tribunal would be entitled to assume that the NSW Police Force did not consider the disclosure of their names to him constituted a real risk of harm, harassment or intimidation to those persons or their families. He submitted that the Respondent has not provided any explanation to the Tribunal to justify their change of position.
He further submits that the Respondent has failed to provide specific evidence of actual harm, harassment or intimidation by the Applicant to any of the three Intelligence Officers, or for that matter towards Intelligence Officers as a class or the NSW Police Force employees as a class, or their families.
Pursuant to section 55(2) of the GIPA Act the personal factors of the application can be taken into account as factors in favour of providing the Applicant with access to the information. The Applicant requests the Tribunal to take the following personal factors into account: "a) He has no criminal record and has never been charged with a criminal offence; b) He was a serving police officer in both the NSW Police Force and the Australian Federal Police for a combined total of 11 years rising to the rank of Acting Sergeant of Police and Supervisor at the Sydney LAC. c) He resigned his position with NSWPF as they did not accede to his request for transfer to a Police Station near his home, as at that time both his parents were seriously ill. At the time of his resignation he had an unblemished record with both the NSWPF and the Australian Federal Police; d) During his time in the Police Force he made a number of friends, many of whom he is still friends with today. None of his friends are employed in the Intelligence Directorate of NSWPF. As he knows from experience the risks that Police endure in the course of their employment he would not intentionally place Police at risk of harm and finds the suggestion that the disclosure to him of the names of the three intelligence officers would place those individuals and their families at risk from terrorism or any other threat highly offensive. While the applicant would like to have a complete and accurate record of the incident, his immediate concern is to ascertain if he knows any of the three officers and if so, to contact them and explain to them the true circumstances of how his name has been defamed in this Intelligence Report ... That is, the applicant wishes to minimize the aggravating effect of defamation on his good reputation in the NSWPF if he can do so. If he does not know the three officers he will not contact them just as he has not contacted [other identified officers] as he does not know them. e) He says that he is a respectable and upright citizen in his community: i) since leaving the police force he has taken an active interest in voluntary work for his LAC; ii) he is an active member of WIRES; iii) he is a Director of a private family company which is held in high regard by the local community and has won many awards; and iv) he was approved as a foster carer of two children now aged five and seven by a Family agency on behalf of the State of NSW as of December 2014. f) He made a complaint pursuant to Part 8A of the Police Act 1990 against … the author of Information Report to the Professional Standards Division of NSWPF. As the complaint was ignored, he filed a further complaint with the NSW Ombudsman who referred the matter to Chief Inspector Jewiss of the Sydney LAC. Following investigation of the complaint by Chief Inspector Jewiss, the Applicant referred the matter back to the Ombudsman. The Applicant draws to the attention of the Tribunal that until the further Notice of Decision dated 15 April 2016 he did not have a full copy of the personal information. The Applicant was not aware that the author of the Information Report had alleged that the Applicant's car was parked in Pirramma Road, Pyrmont near alleged OMCG members. As he is not satisfied with the manner or the outcome of the investigation by the Ombudsman and Chief Inspector Jewiss he has requested the Acting Ombudsman, Professor Macmillan to re-open the matter for further investigation. g) The Applicant strenuously denies that he parked his car anywhere in Pyrmont other than in a Wilson's car park on Darling Island Road. He also denies that the author of the Information Report mentioned the term "OMCG" during the stop in the car park. The Applicant also states that neither his partner nor he observed any motorbike riders in Darling Island Road or Pirramma Road Pyrmont, nor did they observe any persons wearing Commenchero OMCG shirts. The Applicant has received advice from Mr. Michael McHugh SC and Mr Mark Robinson SC that the Information Report is defamatory and may not be covered by qualified privilege. h) The Applicant has commenced proceedings in NCAT for an external review pursuant to section 53 of the Privacy and Personal Information Protection Act 1998 against a refusal by NSWPF to delete his name and car registration details from the Information Report. In those proceedings, which have been anonymised by the Tribunal, the applicant is represented by Mark Robinson SC. As the Applicant considers the defamation of his name as an extremely important matter he is prepared to take his application for amendment to the NSW Supreme Court if it cannot be resolved before NCAT.
The Applicant denies that he has at any time indicated to anyone that he knows officers who work in the State Crime Command and has the capacity to make his own direct enquiries.
In the circumstances he submits that there is no overriding public interest against the disclosure of the redacted information and that it should be released.

Consideration

The Respondent relies on clause 3(f) of the table to section 14 of the GIPA Act. I have set out above my understanding of the standard to be met by the Respondent.
The issue in these proceedings is whether the release of the redacted information could be reasonably expected to expose a person to a risk of harm or of serious harassment or serious intimidation. It is common ground that members of the NSW Police Force are at risk of being the target of terror-related activities.
The Respondent must establish that if the information is disclosed, it could be reasonably expected that the disclosure would expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient".
The Respondent's evidence to support its assertion is that provided by Ms Honeyman. Ms Honeyman is of the view that the names of Intelligence Officers working in the State Crime Command should not be disclosed because of the current threat level of a terrorist attack on NSW Police personnel, buildings or other assets. She is of the view that staff attached to the Intelligence Directorate and their families will be placed at risk if the redacted information is released. However, she did not provide evidence to support her view. She specifically stated that no definite target or time of attack has been identified.
The Respondent does not dispute that the name of at least one other Intelligence Officer working in the State Crime Command has been disclosed to the Applicant. If Ms Honeyman's concerns are correct, then it could be reasonably expected that the disclosure would expose that person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient". There is no evidence to suggest that to be the case. I agree with the Applicant that the Respondent has not provided any explanation to the Tribunal to explain the distinction between the officers.
I also note that the Respondent was prepared to release most of the redacted information over the phone. I agree with Inspector Carlon that disclosure to the Applicant in that way could mitigate the risk associated with releasing the information to the world pursuant to the GIPA Act. However, in the form proposed there was no restriction placed on how the Applicant could use the information. This suggests that the Respondent did not consider the Applicant to pose a risk to the officers.
There is no evidence that the Applicant has acted in any way that suggests he poses a potential future risk to any or all of the three Intelligence Officers or to their families if he was given the information that he seeks. There is no reason to believe that he would expose them to harm or serious harassment or serious intimidation.
Section 105 of the GIPA Act places the onus on the Respondent to establish that the decision is justified. As noted, it must show that it could be reasonably expected that the disclosure would expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient". It is necessary to show that when balanced against the public interest factors in favour of release, the clause 3(f) consideration establish overriding public interest against the disclosure of the redacted information.
As I have noted above, section 5 of the GIPA Act provides that 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 states that there is a general public interest in favour of disclosing government information and nothing in the GIPA Act limits the public interest considerations in favour of disclosure which may be taken into account when determining whether information is to be disclosed. Section 12 of the GIPA Act sets out examples of public interest considerations in favour of disclosure of information.
On the evidence before me I am satisfied that the clause 3(f) consideration should be given some weight. I accept that members of the NSW Police Force are at risk of being the target of terror-related activities. The release of any information that could result in the identification of individuals as members of the NSW Police Force could potentially increase that risk. However, I do not accept that in the circumstances of this matter the release of the redacted information will increase that risk in any material way. In my view the Respondent's evidence falls far short of the standard that it is required to meet. The considerations in favour of disclosure outweigh those against it. Accordingly, I am not satisfied that there is an overriding public interest against disclosure.
For completeness I note that it is my view that Schedule 1 clause 7 of the GIPA Act does not apply to the redacted information and there is no conclusive presumption against the disclosure of that information.
It follows, in my view, that the correct and preferable decision is that the redacted information is to be released.

Orders 1. The decision under review is set aside. 2. The decision is made that the withheld information is released. 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: 18 November 2016

Crimes, Domestic and Personal Violence Act 2007(NSW)

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Judgment (11 paragraphs)

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Legislation Cited (7)

Cases Cited (6)

Cited By (4)