Commissioner of Police, NSW Police Force v DYD

NCAT Appeal Panel|2022-10-21

Background - proceedings before the Tribunal

As DYD's administrative review proceedings have been protracted it is convenient to briefly deal with the Tribunal's Original Decision and the decision of the Appeal Panel on the Commissioner's appeal from the Tribunal's Original Decision.

The Original Decision of the Tribunal

The information for which DYD had sought access in his 30 June 2019, fell into two categories, one of which was information concerning complaints DYD had made against specified officers of the New South Wales Police Force (NSWPF): see 2020 AP Decision at [2] and [3].
Regarding this category of information, the Commissioner identified a number of documents held by the NSWPF containing information of the kind sought by DYD. The Commissioner also decided to: (a) provide DYD with access to some of the information sought, and (b) to refuse access to the remainder of the information sought on the grounds of an overriding public interest against disclosure (the withheld information): GIPA Act s 58(1)(a) and s 58(1)(d). It is the withheld information that is the subject of DYD's administrative review application lodged in August 2019.
The Tribunal heard DYD's administrative review application on 17 February 2020. On 1 May 2020 the Tribunal published its decision and reasons for decision (Original Decision). At [80], in the Original Decision, the Tribunal set out, in table form, its findings in so far as they related to the redacted information on the pages of the documents listed in the Commissioner's schedule, Schedule B. That list contained many more documents and pages to the two documents that pages 146, 148 and 149 relate. The Tribunal's table at [80] in the Original Decision is in the same form set out at [13] above.

2020 Appeal Decision

In its decision of 30 October 2020, the Appeal Panel made the following order: (3) The Tribunal's order 3 made on 1 May 2020 is set aside. The Tribunal is directed to reconsider that order, without further evidence, in accordance with the findings in these reasons and any further submissions the Tribunal may allow.
In setting aside order 3, the Appeal Panel found that the Tribunal had erred in law as follows: 1. making, or impliedly making, a finding of fact, for which there is no evidence: at [49]. The Appeal Panel accepted that there was no evidence that any of the information for which DYD sought access contained any findings, adverse or otherwise, about him. It was on this basis that the Appeal Panel found that the Tribunal erred in finding that, in that case, a relevant public interest consideration in favour of disclosure was 'an individual has a right to know about adverse findings against him or her to check the accuracy of those findings'. 2. while the Tribunal did list cl 3(g) against pages 148-150, it did not 'as a matter of substance' have regard to the representations put by the Commissioner that cl 3(g) was relevant to the redacted information at page 146 of 'Amended Schedule B': at [59]; and 3. at [68] of the Original Decision, the Tribunal applied an unduly narrow interpretation of the interests of the child in cl 3(g), which requires the Tribunal to consider the best interests of the child in a general sense, not just when the person applying for access to the information is the alleged abuser, as release of the information is release to the whole world and not just the applicant.

Material before the Appeal Panel

In support of her appeal, the Commissioner provided detailed written submissions and a large bundle of documents. The bundle of documents included a copy of: 1. DYD's access application; 2. DYD's administrative review application; 3. the written submissions relied on by DYD and the Commissioner in the Tribunal's reconsideration of the information remitted by the Appeal Panel; 4. the open evidence relied on by the Commissioner in the Tribunal's reconsideration of the information remitted by the Appeal Panel; and 5. the transcript of the open session of the hearing before the Tribunal on 17 February 2020.
The Commissioner also provided the Appeal Panel, in confidence, with an unredacted copy of pages 146, 148 and 149, the confidential evidence relied on by the Commissioner in the Tribunal's reconsideration of the information remitted by the Appeal Panel, and the transcript of the confidential session of the hearing before the Tribunal on 17 February 2020.
As we have already noted, DYD relies on the submissions he provided with his Reply to Appeal.
In his submissions provided after the hearing of the appeal, DYD submitted that we should not take into account the Commissioner's 'New Material Raised At Further Appeal' and if this is rejected, then no weight should be placed on this 'New Material'.
As we have already noted, the Commissioner did not provide any additional or new material at the hearing of this appeal. Instead, the solicitor for the Commissioner, elaborated on the arguments set out in her written submissions.

The GIPA Act

In this appeal, the relevant provisions of the GIPA Act are ss 5, 9, 12, 13 and 14(2).
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 9(1) of the GIPA Act provides: 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
Section 12 sets out public interest considerations in favour of disclosure as follows: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (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. 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. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
Section 14 sets out the public interest considerations against disclosure. That section relevantly provides as follows: 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. … Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, … (g) in the case of the disclosure of personal information about a child - the disclosure of information that it would not be in the best interests of the child to have disclosed.
Section 13 sets out the public interest test as follows: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Finally, in administrative review proceedings under the s 100 of the GIPA Act, of a decision of an agency made under s 58 of the GIPA Act, the burden of establishing that the decision is justified lies the agency (in this case, the Commissioner): GIPA Act, s 105(1).

Ground 1 - Legal unreasonableness in finding that cl 3(g) of the Table to s 14 of the GIPA did not apply

Commissioner's case

The Commissioner contends that the Tribunal's finding, at [24] - [25] of the Remitted Decision, that cl 3(g) of the Table to s 14 of the GIPA Act did not apply to the abovementioned redacted information in pages 146 and 149 is 'legally unreasonable because it lacks an evident and intelligible justification'.
In this regard the Commissioner submitted: 1. the Tribunal in its Original Decision, at [68], found that cl 3(g) did apply to the abovementioned redacted information on pages 148 - 149. That decision was based on the same evidence, but on a narrow construction of cl 3(g). Therefore, it cannot logically follow that, as found at [24] of the Reconsidered Decision, with a broader construction of cl 3(g), the same evidence did not sufficiently establish the submitted effects as set out in cl 3(g); 2. the Tribunal's reasoning, at [25] of the Reconsidered Decision that it had previously found the information ordered to be withheld in page 149 to be subject to cl 3(g) is unintelligible because, having regard to the content of that information and the transcript of the 17 February 2020 confidential hearing, this was not information for which it was contended that cl 3(g) applied; and 3. based on the unchallenged confidential sworn evidence of Detective Sergeant Ferns, provided in confidence (at [39] of his affidavit sworn on 19 December 2019) and the information the Tribunal was taken to in the confidential hearing, on 17 February 2020, concerning the subject information in pages 146 and 149, the only legally reasonable conclusion open to the Tribunal was that cl 3(g) applied.

DYD's case

DYD submits that this ground contains a question of fact, which does not raise a question of law. DYD also submitted it was not open to the Commissioner to rely on the matters raised in her submissions in this appeal as they had not been raised in the earlier appeal. DYD went on to include numerous quotes from cases, many of which are not relevant to the matters in issue in this appeal.

The Tribunal's decision

At [24] and [25] of the Reconsidered Decision the Tribunal relevantly said: 24 As regards Item 3(g) of the Table in relation to the relevant redactions on pages 146 and 148 (i.e. the Relevant Information), for that Relevant Information the submitted effects were not sufficiently established by the Respondent and, in my reconsideration in the shoes of the decision maker, on the evidence before the Tribunal I was also unable to sufficiently establish the submitted effects as regards Item 3(g) of the Table. As regards the other public interest considerations against disclosure submitted by the Respondent as applicable, on my reconsideration and rebalancing of these against the public considerations in favour of disclosure, I am satisfied that the other (i.e. applicable) public interest considerations against disclosure do not outweigh the public interest considerations in favour of disclosure of the Relevant Information. 25 As regards Item 3(g) of the Table in relation to the relevant redactions on page 149 (i.e. the Relevant Information) I am satisfied that, other than for the Relevant Information noted as 'withhold' in the table in [27] below, given the nature of the Relevant Information Item 3(g) of the Table is not relevant to the other Relevant Information on that page or, if it were, the submitted effects were not sufficiently established by the Respondent. …

Consideration

In our view, this ground of appeal of the Commissioner is misconceived.
As noted by the Commissioner in her written submissions, the application of legal unreasonableness was considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. At [76], their Honours, Hayne, Kiefel and Bell JJ described its application as follows (citations omitted): 76 As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, the issue before the High Court was whether the decision of the Administrative Tribunal, made pursuant to a statutory power, was legally unreasonable. At [78] - [80], their Honours, Nettle and Gordon JJ, considered the task of the court where it is contended that the decision is legally unreasonable (citations omitted): 78 The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable. 79 That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power. 80 Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.
In this case, the task of the Tribunal in determining whether a disclosure of the information in dispute could reasonably have the effect set out in cl 3(g) of the Table to s 14 of the GIPA Act is not a discretionary one. It is a fact-finding task that involves applying the relevant law to the facts as found: see McGuirk v University of New South Wales (GD) [2007] NSWADTAP 1 at [41] and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. That is, it does not involve an exercise of discretion or statutory power.
Accordingly, we find that the Commissioner has not established this ground of appeal.

Ground 2 - Failure to provide adequate reasons for cl 3(g) finding

This ground of appeal is an alternate ground to ground 1.

Commissioner's case

The Commissioner contends that the Tribunal failed to address the following in its Reconsidered Decision: 1. why it departed from its finding in the Original Decision that cl 3(g) should be given 'little weight' in respect of the redacted information on pages 148 to 150; 2. why the unchallenged sworn evidence of Detective Sergeant Ferns was not 'sufficient' to substantiate that it would not be in the best interest of the child (specifically or generally) for the information to be disclosed; and 3. why the Commissioner's submissions, including those made in the confidential session on 17 February 2020, that cl 3(g) did not apply to the redacted information on pages 146 and 149.

DYD's case

DYD again submitted that this ground of appeal raises questions of fact and not questions of law and leave should not be granted as the Commissioner has failed to show that there has been a miscarriage of justice.
DYD also cites a number of authorities which have considered the requirements of s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). It is these authorities, and not the more recent decision of the Appeal Panel in Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 which applies as this latter decision of the Appeal Panel postdates the date on which he lodged his application for administrative review with the Tribunal.

Consideration

In our view, DYD's contention that the principles applicable to the adequacy of reasons as considered by the Appeal Panel in Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 (Forbidden Foods Pty Limited) do not apply is misconceived. The fact that this decision post-dates the lodgement of his administrative review application is of no relevance to proceedings that are administrative in nature, as the role of the Tribunal is to determine the correct and preferable decision as at the time of hearing the administrative review application and not as at the time the relevant agency made its decision the subject of review: Administrative Decisions Review Act 1997 (NSW) (ADR Act) s 63(1). Nor in our opinion, do the authorities cited by DYD differ to what is said in Forbidden Foods Pty Limited.
It is accepted that the matters set out in s 62(3) of the NCAT Act provides important guidance on what must be set out in written reasons for decision. That subsection provides as follows: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal's understanding of the applicable law; and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
In Forbidden Foods Pty Limited, at [219], the Appeal Panel, noted that the President of the Court of Appeal, at [72], in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, considered that while the matters in s 62(3) was a useful starting point, it still left for consideration the questions as to the quality and detail of the reasoning process which must be exposed.
As we have noted above, the Tribunal's finding regarding the 'relevant redactions' on pages 146 and 148 are those set out at [24] of the Reconsidered Decision. That finding we re-iterate is as follows: … the submitted effects were not sufficiently established by the Respondent and, in my reconsideration in the shoes of the decision maker, on the evidence before the Tribunal I was also unable to sufficiently establish the submitted effects as regards Item 3(g) of the Table'.
The Tribunal set out the arguments of the Commissioner at [22] of its Reconsidered decision. This included a reference to the evidence of Chief Inspector Holgate and Detective Sergeant Ferns and the Commissioner's submissions regarding cl 1(d), 1(f) and 3(a) of the Table to s 14 of the GIPA Act and those regarding cl 3(g) of that Table.
The Tribunal's finding at [24] is clearly a rejection of the Commissioner's submissions, especially regarding the application of cl 3(g) to the redacted information on pages 146 and 148. However, in its reasons for decision the Tribunal did not set out its reasoning processes in reaching this conclusion.
Yet, in its Original Decision, the Tribunal said it accepted the evidence of Chief Inspector Holgate and Detective Sergeant Ferns. For example, at [73], in the Original Decision, the Tribunal said that the evidence of Chief Inspector Holgate had established the systemic effects of the submitted public interest considerations against disclosure for the information partially withheld in the pages listed in Amended Schedule B. Included in that Schedule, as noted by the Tribunal, at [73], are the redactions on pages 146, 148 and 149. Those public interest considerations against disclosure included cl 3(g).
At [75], of the Original Decision, the Tribunal went on to say: 75 As regards the partially withheld information in pages 139-146 and 148-150 noted in the Amended Schedule B, I found that Fern's evidence established both the submitted systemic and specific effects are to be reasonably expected.
Chief Inspector Holgate gave detailed evidence about how a complaint made against a member of the New South Wales Police Force is dealt and investigated under Part 8 of the Police Act 1990 (NSW), and, from his experience, the impact on those processes if information relating to such complaints and investigations were publicly disclosed.
Detective Sergeant Ferns gave detailed evidence about how reports of child abuse are received and dealt with (investigated which includes interviewing children), and the legislative provisions that prohibit the disclose of such information except in certain circumstances. He also gave evidence, in confidence, about the nature of the redacted information on page 149, which includes personal information about a child, and what impact a disclosure of that information might have on the child.
While, in its Original Decision, at [68], the Tribunal said it had given little weight to cl 3(g). It did not say that this public interest consideration against disclosure did not apply. Its findings at [73] and [75] indicate the contrary, which is inconsistent with the finding of the Tribunal, at [24], in the Reconsidered Decision.
Accordingly, as submitted by the Commissioner, we are satisfied that the Tribunal, in its Reconsidered Decision failed to give adequate reasons in reaching its conclusion that, regarding the redacted information on pages 146 and 148, the submitted effects as regards cl 3(g) of the Table to s 14 of the GIPA Act had not been established.
We come to a similar conclusions in respect of the finding, at [25], regarding the redacted information on page 149. That finding we re-iterate is as follows: … regards Item 3(g) of the Table in relation to the relevant redactions on page 149 … I am satisfied that, other than for the Relevant Information noted as 'withhold' in the table in [27] below, given the nature of the Relevant Information Item 3(g) of the Table is not relevant to the other Relevant Information on that page or, if it were, the submitted effects were not sufficiently established by the Respondent.
The 'withhold' information in the Tribunal's table at [25], is the information in the third row of the table on page 149. We note that in the confidential section of his affidavit, at [38], [41] and [42], Detective Sergeant Ferns gave evidence about the effect of a disclosure of information of the kind set out in the third row of the table on page 149. That evidence, especially that contained at [42], is consistent with the Tribunal's findings that a disclosure of the redacted information in the third row could reasonably be expected to have the effects set out in cls 1(d), 1(f), 1(h), 3(a) and 3(g). It is also information the Tribunal has found to be information for which there is an overriding public interest against disclosure. We note that the redacted information on page 148 is information of the same kind, yet the Tribunal has not explained, in its reasons for decision, why it has reached a different conclusion.
In any event, as we have already noted the redacted information in issue in this appeal is that which is contained in the fifth and last row on page 149. Again, Detective Sergeant Ferns gives evidence about the effect of a disclosure of this information in the confidential section of his affidavit, at [39]. That evidence clearly addresses the essential elements of cl 3(g) namely, a disclosure of the information is a disclosure of personal information about a child and the effect of a disclosure of that information on a child. Yet the Tribunal has not in its reasons for decision in the Original Decision or the Reconsidered Decision explained why a disclosure of this information is of no relevance to the public interest consideration against disclosure in cl 3(g) of the Table to s 14 of the GIPA Act.
Accordingly, we are satisfied that the Commissioner has established this ground of appeal.

Ground 3 - Failure to attribute weight to each applicable public interest consideration.

The Commissioner contends that the Tribunal erred in its application of the s 13 public interest test in that it failed to attribute weight to each public interest consideration in favour of disclosure and weigh it against the public interest consideration against disclosure.
That is, it is contended by the Commissioner that the Tribunal was required to identify on a page-by-page basis the public interest consideration in favour of disclosure of the information in issue on that page and attribute a weight to each public interest and then weigh that against the public interest consideration against disclosure.
In our view, the GIPA Act does not impose such a requirement. Nor was it called for in this application where the information in dispute related to the same subject matter namely, the complaints that had been made by DYD.

Ground 4 - Failure to provide adequate reasons for application of the public interest test

This is an alternate ground of appeal to ground 3 above.
It is unnecessary to deal with this ground of appeal, as the findings regarding ground 2 are sufficient to allow the appeal and set aside orders 2 of the Tribunal in its Reconsidered Decision in so far as it relates to the information in issue on pages 146, 148 and 149.

Ground 5 - Failure to exercise discretion as finding is so unreasonable and plainly unjust

This ground is an alternative to grounds 3 and 4 with respect to the redacted information in pages 146 and 149.
In our view, this ground of appeal is also misconceived for the same reasons set out above regarding ground 1.

Leave to Appeal - ground 6 and 7

Because we have upheld ground 2 of the Commissioner's appeal, which raises a question of law, it is not necessary to deal with the Commissioner's application for leave to appeal.

Conclusions

For the reasons set out above, the Appeal Panel has decided that the Commissioner has established ground 2 of her appeal, a ground that raises question of law that gives the Commissioner a right to appeal. Based on this finding the Appeal Panel has decided to: 1. uphold the Commissioner's appeal from order 2 of the Reconsidered Decision of the Tribunal to the extent that the order relates to the abovementioned redacted information on pages 146, 148 and 149; and 2. set aside order 2 of the Reconsidered Decision of the Tribunal to the extent that the order relates to the abovementioned redacted information on pages 146, 148 and 149.
In the circumstances, having regard to the guiding principles under s 38 of the NCAT Act and the agreement of the Commissioner and DYD, the appropriate course is for the Appeal Panel to reconsider the matter itself and determine, on the material before the Appeal Panel, the correct and preferable decision concerning the redacted information on pages 146, 148 and 149: ADR Act s 63(1).

Reconsideration

The issue for determination is whether, on the material before the Tribunal, a disclosure of the abovementioned redacted information on pages 146, 148 and 149 could reasonably be expected to have the effect prescribed in cl 3(g) of the Table in s 14 of the GIPA Act.
We find, having regard to the redacted information on pages 146, 148 and 149, that: 1. the redacted information on page 146 is the same information that is redacted in the fifth and last row of the table on page 149; and 2. the redacted information on page 148 is the same information redacted on the third row of the table on page 149.
As noted above, regarding the redacted information on the third row of the table on page 149, the Tribunal held that the public interest considerations against disclosure of that information, on balance, outweighed the public interest consideration in favour of disclosure. In reaching that finding the Tribunal appears to have accepted the evidence of Detective Sergeant Ferns as set out in the confidential section of his affidavit at [41]-[42]. That is, the Tribunal found, on the material before it, that a disclosure of the redacted information on the third row of the table on page 149 could reasonably be expected to have the effect set out in cl 1(d), 1(f), 1(h), 3(a) and 3(g) of the Table in s 14 of the GIPA Act and that, on balance, these public interest considerations against disclosure outweighed the public interests in favour of disclosure. That finding is not the subject of this appeal. Nor has DYD lodged an appeal seeking to have the Reconsidered Decision of the Tribunal set aside in so far as it relates to the redacted information on the third row of the Table on page 149.
Accordingly, based on the undisputed findings of the Tribunal regarding the redacted information on the third row of the Table on page 149, we make we make the same finding about the redacted information on page 148.
This leaves the redacted information on page 146 and the redacted information in the fifth and last row of the table on page 149, which the Commissioner contends the cl 3(g) public interest consideration against disclosure applies.
For item 3(g) of the Table to s 14 of the GIPA Act to apply, the following must be established: 1. a disclosure of the information is a disclosure of personal information about a child; and 2. a disclosure of the information could reasonably be expected to be a disclosure of information that would not be in the interests of the child to have disclosed.
As noted above, in the 2020 decision of the Appeal Panel, the Appeal Panel held at [61] that: … [cl 3(g)] requires the Tribunal to consider the best interests of the child in a general sense, not just when the person applying for access to the information is the alleged abuser. Release of the information is release to the whole world, not just to the applicant. That point was made by the Tribunal in Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [104].
In Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [104]-[105] the Tribunal said, regarding the application of cl 3(g) to the information in dispute in that case: 104 … [based] on the material before me, and for the reasons I have given above in relation to the public interest considerations in 1(g) and 3(a), I consider that the disclosure of personal and sensitive information given to the police in confidence by a child aged 10 years relating to an alleged physical assault is information that would not be in the best interest of the child to disclose. In reaching this conclusion, I want to make it clear that I am not making a finding that it would not be in the best interest of the child to release the DVD to Mr. Danis - he has already seen the DVD. However, as I have already observed, s 73 of the GIPA Act prevents the Tribunal from imposing any restrictions on access to the DVD and disclosure under the GIPA Act is disclosure to the world at large. 105 It follows that I am satisfied this is a relevant public interest consideration against disclosure in this matter.
The application of cl 3(g) was also recently considered by the Tribunal in FRK v Secretary, Department of Education [2003] NSWCATAD 126 at [75], [81], [99] and [109].
As an aside, we note that the public interest considerations against disclosure in cl 3(a) and 3(b) of the Table to s 14 of the GIPA also relate to the disclosure of personal information, which equally apply to the personal information of a child. Before access is provided to an access applicant of personal information of a person other than the access applicant s 54 of the GIPA Act requires an agency to take such steps that are reasonably practicable to consult the person to whom the personal information relates. Where the personal information relates to a child, consultation is not practical, hence, it is arguable that this is another reason why Parliament has provided for the protection in cl 3(g). That protection, as with the other public interest considerations against disclosure in the Table to s 14 must also be objectively assessed: see Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45] and McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 at [61].
In any event, in this case, it is not disputed that the redacted information on page 146 and the redacted information in the fifth and last row of the table on page 149 is personal information about a child, that was obtained in confidence in the exercise, by the Commissioner and the NSWPF of their statutory function under the Police Act. In this regard we note the open and confidential evidence of Detective Sergeant Ferns at [37]-[42] of his affidavit. The finding of the Tribunal that a disclosure of this redacted information could reasonably be expected to have the effects set out in cll 1(d), 1(f), 1(h) and 3(a) of the Table to s 14 of the GIPA Act are clearly based on the content of the information and the evidence of Detective Sergeant Ferns.
Based on these findings, the confidential evidence of Detective Sergeant Ferns at [39] of his affidavit and, the very sensitive and personal nature of the redacted information, we are satisfied that a disclosure of this personal information about a child could reasonably be expected not to be in the interest of the child to disclose.
As note in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWCATAP 19 at [24] to [27], having determined that the public interest consideration against disclosure in cl 3(g) applies to the information in dispute together with the public interest considerations against disclosure in cl 1(d), 1(f) 1(h) and 3(a) these are then to be weighed and considered in the balancing test in s 13 of the GIPA Act against the public interest considerations in favour of disclosure.
The Commissioner has not disputed the public interest considerations in favour of disclosure as identified by the Tribunal in its Reconsidered Decision at [18], which includes the general right of the public to have access to government information, the information is personal information about DYD (including the views and beliefs of the Commissioner and the Members of the NSWPF about DYD) and the public interest in enhancing the transparency of investigations of complaints under Part 8A of the Police Act.
As noted by the Tribunal, s 5 of the GIPA Act provides that there is a presumption in favour of disclosure unless there is an overriding public interest against disclosure and s 9 gives DYD an enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
We agree that the public interest considerations in favour of disclosure should be given considerable weight regarding the information generally that was withheld from DYD.
In our view, the public interest considerations against disclosure of the redacted information on page 146 and the redacted information in the fifth and last row of the table on page 149 should be given significant weight because, it is primarily personal information of a child, that is very sensitive in nature, provided to the Commissioner in circumstances of confidence and trust and it is not in the interest of a child for information of this kind to be disclosed.
In deciding where the balance lies, the Appeal Panel finds that, the public interest considerations against disclosure of the redacted information on page 146 and the redacted information in the fifth and last row of the table on page 149, outweighs the public interest considerations in favour of disclosure because if the information were to be disclosed, that disclosure cannot be granted subject to conditions and is a disclosure to the world: GIPA Act s 73.
Based on this finding we find that the decision of the Commissioner to refuse to provide DYD with access to the redacted information on page 146 and the redacted information in the fifth and last row of the table on page 149 is the correct and preferable decision and should be affirmed.

Orders

For the reasons set out above the Appeal Panel has decided: 1. uphold the Commissioner's appeal from order 2 of the Reconsidered Decision of the Tribunal to the extent that the order relates to the abovementioned redacted information on pages 146, 148 and 149; 2. set aside order 2 of the Reconsidered Decision of the Tribunal to the extent that the order relates to the abovementioned redacted information on pages 146, 148 and 149; and 3. affirm the decision of the Commissioner, made pursuant to s 58(d) of the GIPA Act, to refuse to provide access to the redacted information on page 146, the redacted information in row three and five in the table at page 148 and the redacted information in row five on page 149 as listed on the Commissioner's Amended Schedule B-'Documents for which access has been granted in part'.
The Tribunal makes the following orders: 1. Appeal is allowed. 2. Order 2 made by the Tribunal on 19 August 2022 in proceedings 2019/00252570 is set aside to the extent that order applies to the redacted information on page 146, the redacted information in row three and five in the table at page 148 and the redacted information in row five on page 149 as listed on the Commissioner's Amended Schedule B- 'Documents for which access has been granted in part'. 3. The decision of the Commissioner, made pursuant to s 58(d) of the GIPA Act, to refuse to provide access to the redacted information on page 146, the redacted information in row three and five in the table at page 148 and the redacted information in row five on page 149 as listed on the Commissioner's Amended Schedule B-'Documents for which access has been granted in part', is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2023

Reasons for decision

The decision of the Tribunal the subject of this appeal is a decision, made on reconsideration, following a successful appeal by the Commissioner of Police (Commissioner) of the Tribunal's original decision in determining DYD's administrative review application: see DYD v Commissioner of Police [2022] NSWCATAD 277 (Reconsidered Decision), Commissioner of Police v DYD [2020] NSWCATAP 224 (2020 AP Decision) and DYD v Commissioner of Police [2020] NSWCATAD 119 (Original Decision).
Each of the abovementioned decisions relate to DYD's application for administrative review of the Commissioner's decision to refuse to provide him with access to some of the information he sought access to because, the Commissioner found that there is an overriding public interest against the disclosure of that information: Government Information (Public Access) Act 2009 (NSW) (GIPA Act), ss 41 and s 58(d).
In this appeal, the Commissioner has appealed, in part, order 2 of the Reconsidered Decision of the Tribunal made on 19 August 2022. That order is in the following terms: (2) Within 21 days of the date of this Order the Respondent must release the information (i.e. the relevant redacted information referred to in [27] and the full pages referred to in [28]) which appears beside the word "Release" in column 4 in the tables in [27] and [28], unless otherwise noted or as amended by the new findings in column 5 of the tables in paragraphs [27] and [28] of these Reasons for Decision.
In her Notice of Appeal in this appeal, the Commissioner said she is only appealing order 2 of the Reconsidered Decision in so far as that order provided for the release of the redacted information on: 1. pages 146, 148 and 149 as listed on the Commissioner's Amended Schedule B - 'Documents for which access has been granted in part'; and 2. and page 30 as listed on the Commissioner's Amended Schedule C - 'Documents for which access has been refused in full'.
The Commissioner has a right to appeal on a 'question of law' but needs leave before appealing on other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). The Commissioner relies on seven grounds of appeal, five of which are contended to raise a 'mixed question of fact and law' and two of which require leave to be granted.
At the time of lodging her appeal, the Commissioner also made an application for a stay of order 2 of the Tribunal's decision made on 19 August 2022. Principal Member A D Suthers granted a stay on 13 September 2022, pending hearing from both parties on 28 September 2022. On 28 September 2022, Principal Member A D Suthers made an order continuing the stay until further order or finalisation of the appeal, whichever is the sooner.
The Commissioner's appeal was heard on 21 October 2022. At the commencement of the Appeal, the solicitor for the Commissioner advised that the appeal in so far as it related to the redacted/withheld information on page 30 was no longer pressed. Hence, the redacted/withheld information on page 30 has not been considered any further in this appeal.
At the conclusion of the hearing, the Appeal Panel reserved its decision and made the following orders: 1 By 7 November 2022, the Respondent (DYD) is to file and serve written submissions on the matters identified by Ms Nguyen during the hearing today, which were an expansion of her written submissions and not specifically referred to, in those submissions. 2 By 14 November 2022, the Appellant (Commissioner of Police, NSW Police Force) is to file and serve submissions in reply.
In accordance with these orders, on 7 November 2022, DYD filed and served his submissions. The Commissioner did not provide any submissions in reply.
For the reasons which follow, the Appeal Panel finds that the Tribunal did err on a question of law as contended by the Commissioner, that the appeal should be allowed and the Commissioner's decision to refuse to provide DYD with access to the withheld/redaction information the subject of this appeal on pages 146, 148 and 149 as listed in Amended Schedule B - 'Documents for which access has been granted in part' should be affirmed.

At a glance

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Judgment (22 paragraphs)

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Legislation Cited (4)

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Cited By (1)