Commissioner of Police, NSW Police Force v Barrett

NCAT Appeal Panel|2014-10-30

REASONS FOR DECISION

The Government Information (Public Access) Act 2009 (GIPA Act or the Act) is the successor to the Freedom of Information Act 1989. It has as its primary goal the opening of government information to the public, by encouraging proactive release, and giving members of the public an enforceable right of access to government information (ss 3(1)(a), (b)), and by providing that access to government information 'is restricted only when there is an overriding public interest against disclosure' (s 3(1)(c)).
It gives all persons (defined broadly) a legally enforceable right to be provided with access to information held by government agency, unless there is an overriding public interest against disclosure of the information.
The Act established a system for the making of access applications, and their determination. It allows agencies to refuse, on various grounds, to disclose information sought. An applicant may apply to the agency for internal review of its decision, to the Ombudsman for review of the agency's decision, and may apply to the Tribunal for review of the agency's decision.
This appeal derives from an access application made jointly by John and Lara Barrett for information thought to be held by the Commissioner of Police, NSW Police Force (the agency). The application referred to seven items of information. The agency refused the application (with the exception of one document released to Lara). The Tribunal has set aside the agency's decision as it related to items 1 to 5 the access application (Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 32 ('Decision 2')); and has remitted for reconsideration the agency's decision in relation to items 6 and 7 (Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 31 ('Decision 1')). The agency has appealed.

The Appeal

The agency lodged its appeal on 22 April 2014, and the appeal hearing took place on 30 October 2014.
A party's appeal rights are governed by NCAT Act, s 80. An appeal may be made on any 'question of law' and leave may be sought to extend the appeal to 'other grounds' (s 80(2)(b)). This appeal is confined in respect of both decisions to questions of law.
The Tribunal's reasons for decision have confidential elements only published to the agency. The notice of appeal, as a result, has open grounds of appeal and confidential grounds of appeal. It will be seen from the reasons below that we have decided not to address the confidential grounds of appeal, as our reasons in relation to the open grounds are sufficient to dispose of the appeal.
The original notice of appeal had eight grounds in relation to Decision 1 and four grounds in relation to Decision 2. Both respondents filed notices in reply to the appeal (John, 26 May 2014; Lara, 23 June 2014). In its submissions dated 8 August 2014 the agency applied for leave to rely on an amended set of grounds of appeal. In relation to Decision 1 (items 6 and 7), the notice of appeal, as amended, has ten grounds, numbered 1 to 7, 7A, 7B and 8. In relation to Decision 2 (items 1 to 5), the notice of appeal, as amended, has three grounds, numbered 1, 3 and 4. The agency's submissions are divided into an 'open' set of submissions and a closed or 'confidential' set of submissions. (See Appendix to these reasons for a complete statement of the amended grounds of appeal, with redactions for confidential elements.)
The second respondent, Lara Barrett, replied to the open submissions with written submissions filed 16 September 2014, prepared by Mr K Dailly of counsel. As Mr Dailly noted in his submissions in reply he was hampered in making submissions in reply by the level of redaction in Decision 1 and in the case of both Decisions by the fact that the Tribunal had before it open and confidential material.
Ms Mattes appeared for the agency at the Appeal Panel hearing on 30 October 2014. Neither John nor Lara appeared. Each of them gave explanations to the Registry for their likely non-attendance ahead of the hearing. John indicated that he may have difficulty attending any hearing for personal reasons (email, 27 August 2014). The solicitor for Lara advised on 28 October 2014 that he no longer held instructions in the matter, and consequently neither he nor Mr Dailly would be attending the hearing. A representative of the Information Commissioner's office attended the appeal as an observer.
The amended grounds of appeal did not, as we see it, significantly vary the case as put in the original grounds of appeal, and were more in the nature of refinements. In those circumstances, we granted leave for the appeal to proceed, on the grounds as amended. We have examined the replies and Mr Dailly's submissions for Lara in that light.
The agency's oral submissions at the appeal hearing mainly concerned Decision 1. The agency relied on its written submissions in relation to Decision 2.

Relevant Law

We have set out earlier in these reasons s 58 of the Act. The most usual negative final decision is a decision to refuse to provide access because there is an overriding public interest against disclosure ((d)). Such a decision can only be reached after engaged in the weighing of interests process contemplated by ss 12-15 of the Act. These provisions commence with the statement that there is 'a general public interest in favour of the disclosure of government information' (s 12(1)). The Act does not limit the public interest considerations that might favour disclosure. The Act provides in s 12(2): 'Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information'.
There is a statutory Note to s 12(2), as follows: Note. 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 provides that there is an 'overriding public interest against disclosure … 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'.
The public interest considerations against disclosure are confined to those listed in the Table to section 14. An agency may decide to refuse access 'because there is an overriding public interest against disclosure of the information' (s 58(1)(d)).
On the other hand, the negative decisions the subject of paras (b) (information not held), (c) (already available) and (e) (refusal to deal with the application) of s 58 do not involve a weighing of interests process. They refer to circumstances of a factual kind. Section 59 provides guidance in relation to decisions that information is already available, and section 60 provides guidance in relation to decisions to refuse to deal with an application. In the case of 'no records held' decisions the agency will normally rely, in justification, on evidence given by records management personnel of the agency going to the adequacy of searches.
It will be seen that in the case of a decision under s 58(1)(f) the agency, and the Tribunal on review, must be satisfied that 'there is an overriding public interest against disclosure of information confirming or denying the fact'. Thus, the Act at this point introduces a public interest against disclosure that goes beyond those listed in the Table to s 14.
An agency must justify to the Tribunal its decision according to the standard set out in s 105. Section 105 provides: (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

Appeal as it relates to DECISION 1 (Items 6 and 7)

We will turn first to the matter most contested at hearing, the Tribunal's treatment of items 6 and 7. We will then deal with the grounds of appeal as they relate to Items 1 to 5.

Whether agency can substitute a new decision.

It will be recalled that item 6 sought access to COPS event records and, as well, 'intelligence reports, etc'. In the case of item 6 of John's request, the agency advised the Tribunal, by way of statements appearing at para [61] ff of its submissions lodged 16 November 2012, that it had decided to change its decision 'on reflection' from 'no documents held' (s 58(1)(b)) to one of 'refuse to confirm or deny' (s 58(1)(f)).
As expressed, the revised decision applies to the whole of John's request including COPS event records. It is not at all clear to us from reviewing the underlying material what point is being served by such a decision as it relates to COPS events records, especially when one record was located in relation to Lara and given to her. We assume that the main objective of this changed basis of decision was to align the decision as it related to intelligence reports in relation to John with the decision that had been made from the start (refuse to confirm or deny) in relation to Lara in that regard.

Agency Alteration of Decision: Ground 1

Ground 1 challenges the Tribunal's refusal to consider the case on the new basis, and is as follows: Refusing to allow the appellant to change its case on external review to the Tribunal from deciding that the information was not held (s 58(1)(b)) to deciding to refuse to confirm or deny that the information was held (s 58(1)(f) (at [11]).
The Tribunal said at [11]: 11 While the Respondent seeks to resile from its initial decision in relation to item 6 in respect of Mr Barrett, it seems to me that once it had decided that it held no information it cannot now say that it neither confirms nor denies that it holds such information. To do so is nonsense. Further, there was no evidence before me that would suggest that there was any basis for the Respondent's purported change in position.
It is, obviously, desirable, in fairness to the review applicant and for the orderly and efficient disposal of proceedings, that agencies not substitute a new and different reviewable decision for the reviewable decision that gave rise to the review application, and was the extant decision at the time the review application was lodged.
In our view, the scheme of the GIPA Act is such that there is no unilateral general power given to the agency to change a final decision. The Act has a complex scheme of review - internal review, the possibility of external review by the Information Commissioner, and external review by the Tribunal. It would undermine this scheme if an agency could unilaterally alter the decision at any stage of the review process. In our view, the provisions of the Act proceed on the basis that a decision once made binds the agency, and remains the decision under review, unless clear statutory mechanisms are utilised to alter it.
As to those mechanisms, we note the following instances.
Section 58(1), set out earlier in these reasons, lists the six types of final decisions an agency may make. Sub-sections (2) and (3) go on to provide: (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
It will be seen that sub-section (3) provides for the possibility of a 'further decision' in the circumstances set out there.
Another example is seen in s 63. In an agency fails to deal with an access application within the decision period (see s 57), the agency is deemed to have decided to refuse to deal with the application: s 63(1). But this does not prevent the agency from continuing to deal with the application and subsequently deciding the application and giving notice of its decision on the application. Such a decision is referred to as a 'late decision': s 63(2).
The Act also contains mechanisms for referral back and reconsideration. The Information Commissioner may make a recommendation of that kind to the agency. See ss 92 and 93. These powers proceed on the basis that the decision under review has a fixed, certain quality.
Similarly, the Tribunal may choose, prior to deciding the review application, remit the decision to the agency for reconsideration of the present decision, and the making of a new decision. The new decision may then become the subject of the review application. See Administrative Decisions Review Act 1997, s 65.
The agency in this instance chose to notify its change of decision in respect of item 6 as it related to John in the body of its detailed written submissions at para [64] in these words: On reflection, the respondent's position is that Mr Barrett should not have been informed no intelligence reports were held (s 58(1)(b)). Instead the respondent should not have confirmed or denied whether intelligence reports were held in relation to Mr Barrett (s 58(1)(f)).
This is not, we consider, an acceptable way of announcing a change of position. There should have been a clear separate notice given. Had that occurred, the Tribunal would then have been required to consider, after hearing from the review applicants, whether a new decision should now be permitted to be substituted as the decision under review, or the s 65 mechanism possibly used. As to the latter, directions could have been given to confine the time within which this was to occur so as not to delay unduly the finalisation of the proceedings in the Tribunal.
From our review of the file what appears to have occurred is that the Tribunal only became aware of the agency's change of position when it began to read the submissions as a whole, in circumstances where the timetable for submissions from both sides and a reply from the agency was completed in July 2013, almost eight months after the agency had announced its proposed change of decision.
In support of its right to substitute a new decision after a matter reaches the Tribunal, the agency's appeal submissions referred to the case-law in administrative review tribunals on the right of parties to rely on any relevant material recognised by s 63 of the ADR Act, including material that was not available or in existence at the time the matter was before the administrator. We referred to that case-law in our recent decision in Commissioner of Police v Joseph [2015] NSWCATAP 9 at [26]-[28].
The present case is one where a new decision is sought to be substituted for the reviewable decision that founded the review application. It is not a case involving the lodgment of additional material in support of the decision that founded the review application. Nor is it a case of the kind Joseph was, where the decision (refusal of licence) remained the same but the agency sought to rely on a further ground additional to the two that it had previously relied upon, and which was founded in the same material that supported one of the other grounds. In this case the agency was seeking to invoke another statutory provision permitting a decision different in kind to the one that had founded the review application.
A proposal to substitute a new statutory decision requires a careful response, and the procedure set out in s 65 of the ADR Act would often be appropriate to use. If a new decision is to be made there needs to be a clear process followed that ensures that clarity prevails as to what the new reviewable decision is, and obtains the benefit of any incidents that attach to the making of a new decision, such as (where applicable) the provision of reasons, and the provision of any new material that is relied upon.
We accept the agency's submission that the Tribunal's one-word explanation of its decision to refuse to accede to the agency's application to make a different type of decision was not adequate. Nonetheless for the reasons we have given, the conclusion was not in the circumstances wrong. In our view, any change of decision in relation to an access application must fall within a head of power provided by the GIPA Act, or by other legislation such as the ADR Act when the matter is before the Tribunal.
The agency's further objection was that the Tribunal did not go on, therefore, to address the agency's revised case. However the Tribunal did so briefly. At [11] it said 'there was no evidence before me to suggest that there was any basis for the Respondent's purported change of position'. We have reviewed the material filed, and, in our view this statement is correct.
As it transpired, the Tribunal omitted to deal with the agency's decision as it stood at the time the review application was lodged. Accordingly, to that extent this part of the appeal is upheld.

Agency Refusal to Provide Detailed Reasons for Refusal to Confirm or Deny that Information is Held: Ground 2

The agency relied on s 58(1)(f) in support of its decision to refuse to respond to Lara's request in respect of both items 6 and 7.
The agency declined to give Lara any reasons for its decision. The Tribunal referred to this omission at paras [12] and [13], and concluded: 13 The Information Commissioner's view was that, generally, it is preferable for agencies to give as many reasons as they can to help applicants understand the basis for the decision, taking into account circumstances where the information is of a sensitive nature. I agree. A fundamental object of the GIPA Act is to open government information to the public. That necessarily entails the need for adequate reasons if an agency asserts that it should not release information. There is no reason why this should not apply to a decision to neither confirm or deny whether it has information.
Ground 2 asserts that the Tribunal erred in holding that an agency is required to provide reasons where it makes a decision under s 58(1)(f), and referred to the above passage.
We are not satisfied that the Tribunal went as far as to rule that the agency is obliged to furnish reasons to the applicant for decisions made under s 58(1)(f), but we accept that it did strongly encourage such a course.
In this regard, we agree with the agency's submission that the GIPA Act only requires statements of reasons to be given in respect of decisions to refuse to provide access 'because there is an overriding public interest against disclosure' (s 61). We interpret these words as referring to a decision made pursuant to s 58(1)(d) of the Act as they replicate the formula seen in s 58(1)(d). There is no other provision in the Act stipulating that an agency issue a statement of reasons for decisions of other kinds.
It may be argued, in the alternative, that the obligation to give reasons for any GIPA Act reviewable decision including one under s 58(1)(f) can be imported from the terms of the ADR Act. The ADR Act contains a series of general provisions relating to the duty to give reasons that are applicable to administrators who make reviewable decisions, without qualification.
In the case of the initial agency decision (often called the primary decision), there is no positive duty to give reasons. Instead, an administrator is obliged to give reasons if requested to do so by the individual. In contrast, s 53 mandates the giving of reasons in response to an internal review application. While the GIPA Act generally adopts the provisions governing the making of first and internal review decisions by an administrator, it specifically excludes s 53 of the ADR Act (s 102) and has its own scheme for internal review (ss 82-88).
The net effect is that the ADR Act's procedures for resolving disputes over whether a person is entitled to a statement of reasons, see s 51, and also for disputes over whether a statement of reasons is adequate, can arguably only apply to disputes over failure to give reasons in respect of primary decisions other than ones subject to s 61 of the GIPA Act.
The exclusion of the internal review provisions of the ADR Act (where the obligation to give reasons is first imposed under that Act) supports, we think, the agency's submission that, read as a whole, the GIPA Act manifests an intention to confine the positive obligation to give reasons to the most important category of reviewable decision, i.e. a refusal decision made pursuant to s 58(1)(d). The limited facility given by the ADR Act's provisions at ss 48-51 is ousted. Finally, as the submissions note, the well-known and controversial position in Australia is that there is no common law obligation on an administrator to give reasons for an administrative decision: Public Service Board v Osmond (1986) 159 CLR 656.
Read fairly and in context, we think that the Tribunal was merely commending the desirability of reasons being furnished even if, as argued, there is no legal duty to do so. In any case the Tribunal did not rest its ultimate determination as it relates to the agency's response on this point. For that reason, this ground of appeal is rejected.

Grounds relating to Adequacy of Tribunal's Reasons

The remaining grounds of appeal, 3-8, all relate to the adequacy of the Tribunal's reasons for its decision not to uphold the agency's refusal to confirm or deny, and to remit the matter for reconsideration. These grounds include elements that can not be referred to in these open reasons, as they refer to confidential paragraphs of the Tribunal's decision.
Ground 3 asserts that the Tribunal wrongly had regard to five considerations irrelevant to an decision relying on s 58(1)(f) (two of which appear only in the confidential paragraphs of Decision 1). We reject grounds of appeal (3(a), 3(b)) that put in issue as irrelevant considerations the Tribunal's statements as to the 'rarity' of s 58(1)(f) claims, and the reference to the fact that the agency did not rely on any conclusive presumptions against disclosure. In our view, the Tribunal was, in these comments emphasising in its way the special impact of a neither confirm nor deny response on the goals of access-to-information laws. One would expect such a claim to be rare, and if it is connected to a conclusive presumption public interest consideration perhaps as carrying more weight than one not connected to such a presumption. In our view, the Tribunal was going no further than that by making these statements. (As previously noted, the conclusions we have reached on the open grounds of grounds of appeal make it unnecessary to deal in these reasons with the considerations that appear in the confidential parts of the decision.)
Ground 4-6 criticise the approach the Tribunal took to the weighing of the particular considerations upon which the agency had relied in support of its decision to refuse to confirm or deny (Table 1(d), Table 2(a), Table 1(f), Table 2(b)). Ground 8 asserts that the decision was Wednesbury unreasonable.
The primary grounds of appeal are those at ground 7 and ground 7A i.e. 7. In relation to the whole decision: (a) failing to decide whether there were any public interest considerations in favour of disclosure; and (b) failing to conduct the balancing exercise. 7A. Failing to provide adequate reasons for determining that there was not an overriding public interest against disclosure of the information confirming or denying that information is held by the agency.
Before turning to these grounds, and as the matter does not appear to have been the subject of any detailed consideration in previous decisions of the Tribunal under the FOI Act or under the present Act, we will deal with the question of the general approach to be adopted in reviewing decisions based on s 58(1)(f).
First, we note that in November 2013, the Tribunal gave notice to the agency for a confidential hearing in relation to the order it might make if it were not to uphold the s 58(1)(f) ground of refusal. The agency filed open submissions on 11 December 2013, confidential only as to para 23(a). The Registry file is unclear as to whether any action ensued to allow the Barretts to respond to these submissions.
Freedom of information laws such as the GIPA Act have as a fundamental feature that agencies should ordinarily tell the applicant whether they hold information falling within the scope a request, and reveal its existence at least to the extent of giving basic descriptor information in relation to the information held. The response 'refuse to confirm or deny' or 'neither confirm nor deny' negates entirely the commitment to transparency that informs freedom of information and right to know legislation.
As we see it, there would need to be special features unique to the particular case or, for example, an area of operation of the agency in which affected records might be held that justify reliance on this ground. We agree with the observations to this effect seen in open para [19] of the Tribunal's reasons.
The key question, as we see it, is what is about the case that justifies the exceptional response of choosing to refuse to confirm or deny that documents of the kind sought by the application exist or do not exist.
Even if the Tribunal considers that the information sought could properly have been refused by balancing the considerations that favour disclosure against those that do not favour disclosure, it does not follow that the existence or otherwise of records responsive to the request should be concealed.
The Queensland law (Right to Information Act 2009) allows an agency to neither confirm nor deny the existence of a requested document if, assuming its existence, the document would contain prescribed information. 'Prescribed information" refers to certain categories of exempt information and certain personal information. As the Queensland Information Commissioner explained in EST and Department of Family Services and Aboriginal and Islander Affairs [1995] QICmr 20; (1995) 2 QAR 645 at [11] : In a review of an ordinary refusal of access decision, the applicant for access is necessarily disadvantaged, in the extent to which meaningful submissions can be made about the exempt status of matter in issue, by a lack of precise knowledge as to the nature of the matter in issue. That disadvantage is exacerbated in a review of a decision to invoke a s.35 "neither confirm or deny" response. The review must largely proceed in private between the Information Commissioner and the respondent ...
While the NSW law is less constrained than the Queensland law, in that it does not restrict the right to refuse to confirm or deny to a particular classes of information, the basic logic of the Queensland approach seems to us to be applicable.
Where the statutory considerations upon which the agency relies are seen as sufficient to justify refusal of any documents that are in existence, the separate question must then be addressed as to whether the agency's non-revelation of the mere existence of the documents is justified, having regard to the onus it bears under s 105(1). The Tribunal might well reach the conclusion that even though there is a strong case for refusal, the further case for non-revelation of the existence of any documents is not made out, having regard to the onus the agency carries.
If the agency has no records relevant to the request, but does not want to reveal that fact, normally the agency would need to satisfy the Tribunal, by reference to the evidence relating to adequacy of search, that reasonable searches were undertaken. Again the Tribunal might reach the conclusion that while a no documents held case has been made out, the further case for non-revelation of that fact is not made out, having regard to the onus the agency carries.
As noted in the Queensland case-law the agency then needs to show that a refusal specifying grounds for refusal (such as no information held or refusal to disclose documents held) would reveal information the agency is 'trying to protect' or would 'cause harm the agency is trying to prevent': see Australian Broadcasting Corporation and Psychologists Board of Australia (unreported, QICmr 3 Jan 2012) at [14] cited in 3FG6LI and Queensland Police Service [2014] QICmr 32 (29 July 2014). (We acknowledge that there may also be cases where the content of the access application read in conjunction with evidence from the agency (such as confidential intelligence evidence) may be enough to demonstrate that the information sought is of such sensitivity that a refusal to confirm or deny response is justified, without the agency having to engage in any search.)
Agency's Submissions to the Tribunal in this Case. The agency's open submissions (16 November 2012) did proceed by referring to the considerations that might have justified a refusal under s 58(1)(d), without conceding that documents were in fact held. The submissions relied on cl 1(d) ('prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions') and cl 2(a) ('information which, if it existed, would tend to reveal the identity of an informant or prejudice the future supply of information from an informant. The agency referred in support to two Tribunal cases decided under the predecessor Freedom of Information Act 1989 (FOI Act) which dealt with the above considerations (then cast as grounds of exemption), but in neither of the cases did the agency go so far as to neither confirm nor deny the existence of documents relevant to the request (Fisher v NSW Police [2002] NSWADT 267 at [34]; and Ekermawi v Commissioner of Police, NSW Police Service & Premier, NSW [2001] NSWADT 27). The Tribunal noted that in its reasons for decision.
The agency dealt more fully with the issue of whether it was justified in refusing to confirm or deny in the further submissions filed 11 December 2013. It referred in addition to the Table cl 2 (b) - 'prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law'; Table, cl 1 (d) - 'prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions'; and Table, cl 1(f) 'prejudice the effective exercise by an agency of the agency's functions'.
The agency submitted that '[to] confirm or deny whether intelligence reports or police checks are held would jeopardise the integrity of police investigative methodologies', and this would have a 'substantial adverse effect on the ability of the police to perform its primary task of detecting offenders and protecting public safety (cl 2(b))' and 'reveal the identity of police informants' (cl 2(a)).
It referred to all of these considerations as ones that in the particular circumstances justified a neither confirm nor deny response to requests for intelligence records (item 6) or for documents such as police notebooks (item 7).
It highlighted the problem of the 'mosaic effect'. This is the phenomenon whereby access applicants build up a picture of the whole, through completing parts of the mosaic, by means such as access applications, other forms of research and inquiry, and pre-existing personal knowledge of the circumstances of interest. They might thereby be able obtain an understanding of, for example, the extent to which the applicant's activities are being monitored and the types of information being compiled. The following explanation was given in Saleam v Commissioner of Police, New South Wales Police Service [2002] NSWADT 40 by Robinson JM at [26]: The argument is, in brief, that, as a factual matter, the applicant or a person or persons on his behalf is undertaking a systematic approach to the making of numerous FOI Special Branch applications for the purpose of and with the ultimate aim of him putting the pieces together and discovering significantly more than he is otherwise entitled to. Such information sought to be impermissibly discovered by the applicant through his implementation of this process includes the name or names of informants of the respondent or information from which those names might be likely identified and other operational information that would not normally be made available to the applicant.
The agency's submissions referred to evidence given by a detective inspector in Saleam's case in support of the position taken by the agency in the present case. (See to similar effect, in the context of an application by a pharmaceutical company, seeking any documents that might have been lodged by others with the Australian Register of Therapeutic Goods, see Emmett J at [62] in Secretary, Dept of Health and Ageing v iNova Pharmaceuticals (Australia) [2010] FCA 1442 at [62].)
The submissions then stated at [15]: [The agency] submits that, for specific categories of information such as police intelligence and operational information, it is necessary for policing agencies to refuse to confirm or deny whether information is held.
The submissions refer to examples given in a publication of the UK Office of Information Commissioner. The submissions continued at [16]: '[The agency] submits that the same principle should apply even if the information requested is about a person not under surveillance. If the police force only upheld its duty to confirm or deny where it was not conducting surveillance on a person, an applicant could reasonably assume that, where the police force refused to confirm or deny, the person named in the request was under surveillance and that would not be in the public interest.'
In our view, this is an unduly sweeping view. We have accepted that systemic considerations will often be relevant to the statutory ground that an agency choses to rely upon, when its decision is to refuse to disclose the information sought by an access application. However, it does not follow that simply because an access applicant is currently under surveillance they should be met with a refuse to confirm or deny decision. It remains necessary to consider why in the particular circumstances, mindful of the systemic concerns of the agency, disclosure is not justified, or alternatively a response that admits the existence of a record is preferable, and exposes the reasons at least in general terms as to why access is to be refused. We accept that there may be cases where it is contrary to the public interest for a law enforcement agency to respond in a way that admits the existence of a record or informs the applicant that no record exists. In our view, there would be many cases where the public interest would not be put at risk to the degree required by the GIPA in cases where the access applicant is not under surveillance. Each case must ultimately be determined by reference to its particular characteristics.
Adequacy of Reasons. It is well accepted that reasons for decision need not be highly detailed. For a recent account of the relevant principles see: Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 at [41]-[45]; and Keith v Gal [2013] NSWCA 339 esp per Gleeson JA.
In the context of the present appeal, we draw attention to the following observations by Gleeson JA at 116 [B]ald conclusionary statements should be eschewed. As stated by Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28]: 'It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: 'I believe Mr X but not Mr Y and judgment follows accordingly'. That is not the way in which our legal system operates.' 117 Thus, it is essential to expose the reasoning on a point critical to the contest between the parties. This proposition reflects one of the three fundamental elements to a statement of reasons identified by Meagher JA in Beale v GIO [Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430] at 443-444: "Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well."
In our view the Tribunal in a case of the present kind must be seen to respond in its reasons directly to the case put by the agency in justification of the agency's decision. In the event that the Tribunal disagrees with the weighting given to the agency of the competing considerations it must explain clearly why that is so.
One of the difficulties that affected the submissions of the agency in this case, and the Tribunal's reasons in reply was the way in which the Table considerations were used by the agency. As we see it, the agency brought them forward as the primary considerations relevant to a decision relying on s 58(1)(f).
As we have stated earlier in these reasons, in our view the weighing of the considerations set out in s 14 against the general considerations that favour disclosure (s 12) will not necessarily exhaust the task required when s 58(1)(f) is invoked.
There remains a separate question, i.e. even if the balancing of considerations would have led to the conclusion that the information could properly be refused (or be the subject of a decision that no information is held), what is it about the circumstances of this case that justify the further decision that a refusal to confirm or deny the existence of documents is justified. In our view the agency did not clearly separate these steps in the analysis in its submissions, and the Tribunal's reasons have similar difficulties.
The Tribunal did not, in our opinion, address the case put by the agency that disclosure could reasonably be expected to prejudice the supply of confidential information (Table 1(d)) or that disclosure could reasonably be expected to prejudice the future supply of information from an informant (Table 2(a)). It simply said that these consequences would not 'necessarily follow'.
As the agency submissions contend, nor did the Tribunal adequately explain whether the agency's evidence and submissions demonstrated that disclosure 'could reasonably be expected to prejudice' the supply of either confidential or informant information in future. It needed to address that case.
It may be that what the Tribunal was trying to say, similar to the way we think refusals of the present kind should be approached, was that even if the alleged adverse effects are made out it does not follow that mere identification of a document of the kind to which these considerations apply in a schedule of documents would justify a decision to refuse to confirm or deny the existence of such a document. The Tribunal's reasons for decision are unclear in respect of this important aspect of the case.
Similar difficulties apply to the way the Tribunal addressed the agency's reliance on the public interest considerations against disclosure at Table 1(f) and Table 2(b).
In our view, the decision as it relates to items 6 and 7 of Lara's application needs to be revisited. That will also provide the opportunity to address the substitute decision that the agency sought to make in relation to item 6 and John's application.

Item 7

A difficulty that affected this case is that item 7 was really a corollary to items 1 to 5. However it became paired with item 6 in the case of Lara because of the agency's decision to rely on s 58(1)(f) in answering item 7 of Lara's access application.
As the agency's submissions and amended grounds of appeal note, the Tribunal ultimately did not address the agency's decision in respect of item 7 of John's application where its answer through remained one of no documents held (s 58(1)(b)). Ground 7B raised this error. This aspect of the application remains to be decided.

Appeal as it relates to DECISION 1 (Items 1 to 5)

The Tribunal's decision on these items is not affected by redactions. There are no confidential paragraphs.
In response to the OIC's first review report, the agency created documents which recorded the agency's findings as to whether any and what access activity had occurred in respect of the matters addressed by items 1 to 5 in the period 1 September 2009-23 September 2010. The agency did not attach to its redetermination of 6 May 2011 or later provide to the Tribunal, in contrast with the usual practice, a schedule of documents that were located, with basic descriptors, and an indication as to what considerations were relied upon to refuse access.
The Tribunal proceeded to examine the agency's case by reference to the requirements of ss 12-15 of the Act.
The grounds of appeal relate to the adequacy of the Tribunal's reasons. The grounds are as follows. 1. Finding there was a public interest consideration in favour of disclosure I the same terms as subpara (e) to the Note to s 12(2) (at [70]), and according considerable weight to that consideration (s [73]) where: (a) there was no evidence before the Tribunal that would support such a finding; and, further, or in the alternative, (b) the Tribunal failed to provide adequate reasons. 3. Failing to determine the balancing exercise under s 13 in respect of the information from 30 October 2009 to 23 September 2010 (at [61]-[81]). 4. Making a decision as to the balancing exercise in respect of the information from 1 September 2009 to 29 October 2009 that was Wednesbury unreasonable.
The Weighing Process. The Tribunal on this occasion was not engaged in a task with the extra layer of complexity that we see as applying when s 58(1)(f) is relied upon. This was a case of the more orthodox kind where the agency's decision is based on the view that the public interest considerations against disclosure override the public interest considerations that favour disclosure.
Information can only be properly refused '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' (s 13).
The central task of the Tribunal is to weigh the competing considerations.
In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 the Appeal Panel said: 25 The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 26 We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case. … 37. … In our view, it was not relevant to the Tribunal's task at the section 14 stage of the enquiry to take account of events subsequent to the circumstances that gave rise to the document or information the subject of the refusal. As explained, the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged. As we have noted previously, the agency does not dispute that a wide array of considerations, including subsequent history, might be considered at the section 13 stage. But it is necessary as we see it for the Tribunal to approach the section 13 stage with a properly informed appreciation of the case made by the agency at the section 14 stage.
In that case the agency had invoked one of the s 14 Table considerations and given evidence as to the importance it attached, and it believed the community attached, to strict confidentiality in the operation of the emergency call service. It saw maintenance of this expectation as one that weighed against disclosure of the contents of a call and the identity of a caller to a third party affected by the call.
The Appeal Panel upheld the agency appeal, and remitted the case for rehearing, because, in its view, the Tribunal had failed to reply to this aspect of the agency's case. In particular, it gave no explanation for according the consideration no weight or less weight than the agency attached to it. It does not therefore follow that if the Tribunal accepts matters to which a s 14 Table consideration refer as relevant or strongly relevant to making a decision on an access application that that is the end of the process. The next step (whether seen as a step forming part of the s 14 stage, as argued in the submissions below by the OIC, or kept to the s 13 process, as the Appeal Panel suggested in Camilleri) is to take account of the specific circumstances of the case, and make an assessment as to how disclosure to the access applicants might impair the operational interests to which the Table considerations relied upon are addressed. Weight must be given to all the public interest factors both for and against disclosure, in light of the specific circumstances, and then the competing public interests need to be balanced to achieve a result. Often the process of attaching weight will lead to an obvious result, whereas in other cases the balance will be more even.
Agency's Submissions to the Tribunal in this Case. The agency relied on an open statement by Insp Sheather. The agency relied on the following considerations against disclosure: 'disclosure could reasonably be expected to prejudice the effective exercise by an agency of its functions' (Table, cl 1(f)) 'disclosure could be reasonably expected to prejudice the conduct, effectiveness or integrity of investigation conducted by an agency by revealing its conduct or results' (Table, cl 1(h)) 'disclosure could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law' (Table, cl 2(b))
Insp Sheather's statement referred in some detail to the structure of the COPS system, its various elements, the purpose they served, and explained the extent to which information of the kind sought by items 1 to 5 was held or was retrievable by searches based on the parameters provided by the application. It referred to the internal security concerns that surround provision of access to audit trails.
Tribunal's Reasons. In examining the agency's considerations against disclosure the Tribunal noted the approach commended by the Appeal Panel in Camilleri.
The Tribunal commenced its explanation by listing public interest considerations that favoured disclosure, including the general public interest in promoting transparency in agency practice and accountability. It referred especially to the public interest to which note (e) of s12 refers (disclosure could reasonably be expected to reveal misconduct, or negligent, improper or unlawful conduct). The agency's criticism of the adequacy of the Tribunal's reasons gave particular attention to this aspect of the reasons.
The Tribunal set out extracts from Insp Sheather's description of the various facets of the COPS system. In conclusion, the Tribunal accepted as a general proposition that the effective exercise of its functions might be prejudiced if this agency were to release its audit trails (see [51]). Similarly it accepted as a general proposition that disclosure of audit trails could reasonably be expected to prejudice the conduct or effectiveness or integrity of an investigation (at [55]) or prejudice the enforcement of the law (see [65]).
The Tribunal accepted that each of the considerations were relevant to the circumstances. It said that it accepted 'generally' that the agency evidence had demonstrated the prejudice flowing from disclosure to which (1) above refers (para [51]), accepted that a prejudice of the kind to which (2) refers might arise from disclosure (para [55]), and accepted 'generally' that the prejudice to which (3) refers might arise (para [65]).
The Tribunal also referred to the circumstances that had given rise to the access application, the backgrounds of the applicants and the applicants' motives. Consideration of motive and personal matters of this kind is expressly permitted by s 55 of the GIPA Act. See, especially, s 55(2) which states that: '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.'
The Tribunal drew support from the approach taken by the OIC in its reviews, and in its submissions to the Tribunal, for example, that this was a case where no subsequent action had occurred such as by way of investigation of suspected unlawful conduct or the laying of a charge. Further there was the unusual feature that the applicants were recently retired, highly experienced police officers with a working knowledge of the COPS system. Therefore the harm that might be perceived to flow from disclosure in many cases by affording a degree of knowledge to access applicants of the internal workings of the system was less significant on this occasion.
The Tribunal accepted the OIC's opinion that many of the potential harms, such as the acquisition of knowledge of internal audit procedures, said by Insp Sheather to flow from disclosing audit records were not applicable to the same degree in a case such as this where the access applicants had worked inside the agency and were familiar with agency practices.
The Tribunal then moved to identify the public interest considerations favouring disclosure on which the Barretts relied.
Adequacy of Reasons. In essence, the agency's criticism is that the Tribunal identified considerations that favoured disclosure that either had no foundation or were given too great weight, with the result that the considerations that it had accepted as being against disclosure were not properly found to be overridden.
Here the Tribunal acknowledged that public interest considerations against disclosure had been identified, and should be given weight. It needed then to be clear in its reasons as to what were the public interest considerations that favour disclosure had greater weight. The balancing process needed to be clearly exposed. Having reached the view that there were considerations against disclosure that should be accorded some weight, the Tribunal needed then to refer to the public interest considerations in favour of disclosure that it saw a relevant, and proceed to undertake the balancing exercise. The process is an evaluative one, and can not be reduced to a mathematical calculus (as noted in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94]).
Ground 1. The agency objected in particular to the reliance placed by the Tribunal on the public interest consideration favouring disclosure listed at note (e) of s 12(2), also set out earlier in these reasons.
The Ground referred to the following paragraphs of the Tribunal's reasons: 70. The Applicants' motives for making the access application are stated in the application to the Tribunal as follows: my wife/husband and I 'believe that there has been unlawful access to our information and possibility [sic] the generation of a false report'. The Applicants were clearly disappointed with the outcome of the complaint and, it appears, have a general distrust of the Respondent. From the submissions on their behalf it was clear that they consider that disclosing the information could possibly reveal or substantiate that members of the NSWPF have engaged in misconduct or negligent, improper or unlawful conduct. This is a serious allegation and I would attach significant weight to such an assertion if it were borne out. 73. I have accepted that, in addition to the general public interest in favour of disclosure, disclosure of information could reasonably be expected to promote accountability and transparency of NSWPF in exercising its law enforcement functions, in particular that disclosure would contribute to accountability and transparency of the audit process and around use of the COPS system and that disclosure could reasonably be expected to reveal or substantiate whether or not an agency or official has engaged in misconduct or negligent, improper or unlawful conduct. I have attached significant weight to these matters.
The appeal does not put in issue the Tribunal's reference to the public interest in promoting the accountability and transparency of the audit process around the COPS system. We agree with the agency that it is difficult to see how, in isolation, the public interest in transparency in relation to agency activity could prevail in a case such as the present that lacks any wider public interest dimension, and where the Tribunal has accepted that the agency has identified, at least arguably, relevant public interest considerations against disclosure.
In our view the Tribunal made a finding at [73] which adopted the terms of note (e) of s 12(2) when it said: "I have accepted … that disclosure could reasonably be expected to reveal or substantiate whether or not an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.'
It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that 'disclosure … 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.' As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal's reasons to indicate that it had any material that 'could reasonably be expected to reveal' the types of improper conduct to which the above formulation refers.
In our view the Tribunal did not have any evidentiary basis for a finding of that strength.
The Tribunal was not bound to adopt the terms of any of the examples given in the note at s 12(2). They are merely illustrative. In contrast, the public interest considerations against disclosure are the subject of statutory provisions that must be given a legal meaning. In deciding whether a public interest against disclosure is applicable, the Tribunal is must adhere to their legal meaning. The Tribunal is only constrained by requirements of reasonableness and the like in its identification of public interests favouring disclosure. In this regard we note that the Information Commissioner used language of greater circumspection to describe the value served by disclosure in that it 'might' reveal improper conduct of the kind specified.
Accordingly, we must uphold the primary ground of appeal in relation to the Tribunal's reasoning with respect to items 1 to 5.
It is unnecessarily, therefore, to deal in any detail with Grounds 3 and 4 which go to the breadth of the Tribunal's set aside order.
Those Grounds refer to the last part of the Tribunal's reasons. The Tribunal referred at [79]-[81] to the possibility of taking a differential approach to the access application, based on a distinction between information held in relation to the pre-incident period (1 September 2009 to 29 October 2009) and the post-incident period (30 October 2009 to the date of the application, 23 September 2010).
The appellant's submissions concede that the Tribunal did engage in the weighing process satisfactorily with respect to the period 1 September 2009-29 October 2009, but challenges the adequacy of the reasoning process as it relates to the period subsequent to the incidents of 29 October 2009.
The Tribunal had said at [80]: I think the information from 1 September 2009 to 29 October 2009 is in a different category to that in respect of the later period, the weight to be given to the public interest considerations in respect of the earlier period is greater than that for the later period.
Having differentiated as at did at [80] between the cases as they related to the pre-29 October period and the post-29 October period, the Tribunal did not give any reasons as to why it did not accept that the agency's decision was the correct and preferable one, as to the post event period especially when it had acknowledged that the agency's case was of 'greater' strength in respect of that period. It went on in para [81] to conclude: In weighing up the public interest considerations for and against disclosure outlined above, I find the respondent's submissions in respect of the earlier period are not sufficiently persuasive for it to have discharged its onus under s 105 of the GIPA Act. I find that the public interest considerations against disclosure, on balance, do not outweigh the public interest considerations in favour of disclosure. …
In the opening parts of its reasons, and when it commenced the substantive part of its reasons (at [61] ff) the Tribunal did not draw any distinction of this kind. The distinction was drawn in the agency's open submissions dated 12 November 2012 at [59]. They referred to the fact that the application reached back more than a year in time, and refers to the Barretts' assertion that there may have been unauthorised access on 29 October 2009.
While this area of the Tribunal's reasons is confusing, we consider that the body of its reasons as they related to items 1 to 5 concerned the entire time span of the application. As we read the reasons, the Tribunal was simply raising at paras [79] ff the possibility of a confining its response to the period 1 September 2009 to 29 October 2009, which it declined to do. The body of its reasons were intended to apply to the period 29 October 2009 to 23 September 2010.

Orders 1. Appeal allowed. 2. Orders of the Tribunal set aside. 3. Directions hearing to be fixed by the Registrar before the Appeal Panel to decide whether the Appeal Panel should proceed to dispose of the matter or remit for reconsideration.

As to Decision 1 (items 6 and 7) Refusing to allow the appellant to change its case on external review to the Tribunal from deciding that information was not held (s 58(1)(b)) to deciding to refuse to confirm or deny that the information was held (s 58(1)(f) (at [11]). Holding that an agency is required to provide reasons where it makes a decision under s 58(1)(f) (at [12] and [13]). Taking into account the following irrelevant considerations: The rarity of s 58(1)(f) claims in relation to the provision of reasons (at [13]) that the appellant did not rely on conclusive presumptions against disclosure in s 14(1) and Schedules 1 and 2 (at [19]). [Confidential] [Confidential] that the test for an overriding public interest against disclosure of whether information was held was 'a much more serious contention' than that of an overriding public interest against disclosure of the information itself (at [19]). Holding that the public interest considerations against disclosure in Table 1(d) and Table 2 (a) (or, in the alternative, Table 1 (d), 1 (f), 2 (a) and 2 (b) were less appropriate in a s 58(1)(f) case than in a refusal to provide access case (s 58(1)(d) (at [19] and [confidential]). In relation to Table 1 (d) and 2 (a): failing to decide whether there were any public interests considerations against disclosure (at [19] and [confidential]) applying the wrong test of whether relevant information was 'intelligence' rather than 'confidential information' or information in relation to an informant respectively (at [19]-[20]) In relation to Table 1 (f) and 2 (b): failing to decide whether there are any public interest considerations against disclosure (at [22]-[26]) failing to properly consider the balancing exercise (at [26]-[28]); applying the wrong test by requiring that the claimed effect of disclosure would 'necessarily follow' and the identity of informants 'would' be disclosed (at [confidential] and [23]) rather than whether disclosure 'could reasonably be expected' to have the claimed effect. 7 In relation to the whole decision: failing to decide whether there were any public interest considerations in favour of disclosure; failing to conduct the balancing exercise. 7A. Failing to provide adequate reasons for determining that there was not an overriding public interest against disclosure of information confirming or denying that information is held by the agency. 7B. Failing to exercise its jurisdiction to determine the applicant's challenge to the determination with respect to item 7 of the application of John Barrett. 8. Making a decision that was Wednesbury unreasonable. As to No Decision 2 (items 1 to 5) Finding that there was a public interest consideration in favour of disclosure n the same terms as subpara (e) to the Note to s 12(2) (at [70]) and according considerable weight to the observation (at [73]) where: there was no evidence before the Tribunal that would support such a finding; and, further or in the alternative, the Tribunal failed to provide adequate reasons. Failing to determine the balancing exercise under s 13 in respect of the information from 30 October 2009 to 23 September 2010 (at [61]-[81]). Making a decision as to the balancing exercise in respect of the information from 1 September 2009 to 29 October 2009 that was Wednesbury unreasonable.

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: 21 April 2015

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Cases Cited (9)

Cited By (41)