Craft v Commissioner of Police

Procedural directions

1. On 16 May 2022, Senior Member McAteer conducted a case conference, at which the applicant was self-represented and Ms C Tipene appeared for the respondent. The Senior Member made directions regarding the filing and service of evidence and submissions by the parties and lodgement of any confidential documents by the respondent. He ordered the respondent is to file and serve the evidence and material relied upon (including filing a confidential copy of the withheld material) on or before 14 June 2022. He ordered the applicant is to file and serve a response and any other material and submissions that they reply upon, on or before 11 July 2022 and also ordered the respondent is to file and serve a reply (if any) on or before 22 July 2022. He listed the matter for hearing on 26 July 2022 at 10:00am… by AVL for 3 hours. He also made the following notations: (1) The parties note that the applicant's GIPA Act request has been processed as an audit of who had accessed and when those accesses occurred, of the applicant's COPS reference record, rather than a request for the COPS record itself. (2) The Tribunal notes that the applicant may choose to raise his policy and complaint issues concerning Dubbo Police with the Law Enforcement Conduct Commission (LECC).

The current dispute

1. The issue in these proceedings is whether there is an overriding public interest consideration against disclosure of the COPS audit to the applicant. The applicant presses for its disclosure, but the respondent argues that there is an overriding public interest consideration against disclosure and that his decision should be affirmed.

Grounds relied upon by the respondent

1. In response to the current application for administrative review, the respondent relied upon the following public interest considerations against disclosure under the Table to s 14(2) of the GIPA Act: 1. Clause 1(f): that disclosure could reasonably be expected to prejudice the effectiveness of the NSWPF's functions; 2. Clause 1(h): that disclosure could 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) and 3. Clause 2(b): that disclosure could reasonably be expected to prejudice the prevention, detection or investigation of a contravention of the law or prejudice the enforcement of the law.

Submissions and evidence

1. The applicant did not file any evidence or written submissions in support of his application for administrative review.

Respondent's open evidence

1. The respondent relied upon an open affidavit of Chief Inspector Marc Holgate (CI Holgate) sworn on 8 June 2022.
2. The applicant did not raise any objection to this affidavit and he did not require CI Holgate to attend for cross-examination. Accordingly, the affidavit was admitted into evidence and marked Ex 1.
3. CI Holgate deposed that he is the Professional Standards Manager of the Professional Standards Command (PSC) of the NSW Police Force (NSWPF) and he has held that role since August 2019. The PIC is responsible for maintaining standards of professional conduct and discipline across the NSWPF. This includes the conduct of particular investigations into police misconduct, preparing policies and procedures governing the management of, and investigation onto, complaints, and the provision of advice in relation to disciplinary action to be taken as a consequence of misconduct by members of the NSWPF.
4. CI Holgate stated that complaints about police misconduct are governed by Pt 8A of the Police Act 1990 (the Police Act). The PSC does not investigate all complaints of police officer misconduct and most complaints are managed by the Police Area Command (PAC) or Police District (PD) where the officer is stationed.
5. When a PAC or PD receives a complaint about a police officer and a decision is made to investigate that complaint, it will often be investigated by a senior police officer at the PAC or PD, and the findings ratified by a Complaints Management Team (CMT) comprised of the leadership team at that Command. In certain circumstances, a PAC or PD will refer a complaint to the PSC for investigation. PSC also remains responsible for the overall policies and procedures related to complaint handling and investigation by NSWPF.
6. CI Holgate deposed that the mission of the NSWPF is to have the police and the community working together to establish a safer environment by reducing violence, crime and fear: s 6(1) of the Police Act.
7. Section 6(2) of the Police Act provides that the NSWPF has the following functions: (a) provide police services for New South Wales; (b) exercise any other function conferred on it by or under this or any other Act; (c) do anything necessary for, or incidental to, the exercise of its functions.
8. Further, s 6(3) of the Police Act defines "Police Services" as: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations.
9. CI Holgate stated that disclosure of the COPS audit report could reasonably be expected to 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): cl 1(h) to the Table in s 14 of the GIPA Act.
10. CI Holgate stated that the Computerised Operational Policing System (COPS) is the primary database used by police officers to record their day-to-day interactions with members of the community. All sworn members of the NSWPF have access to the COPS database in order to perform their policing functions. Some unsworn members of the NSWPF are also required to have access for the performance of their duties.
11. The COPS database contains sensitive personal and operational information about victims of crime, persons of interest and witnesses. It contains a summary of an individual's history of interactions with the NSWPF, criminal history information, intelligence which does not reach the threshold of material which may be sufficient to charge a person, warnings or alerts about a person, an address or a vehicle and can be linked to charges brought against an individual. Each individual who has an interaction with the NSWPF has a unique COPS profile, where information about them is to be recorded.
12. In undertaking their day-to-day policing activities, members of the NSWPF regularly undertake searches of the COPS database and add content to the database. The COPS database is audited to ensure members of the NSWPF are accessing it appropriately. Random audits are conducted on all members of the NSWOF who have access and this type of audit generates a report of all accesses to COPS made by a particular officer within the specified date range. Any unexplained accesses are required to be explained and unexplained or inappropriate access may result in disciplinary action being taken. Regular auditing of the COPS database is a corruption prevention strategy and important to ensure access is restricted to a need-to-know basis.
13. CI Holgate stated that in this access application, the applicant is seeking access to a COPS audit of access to his unique COPS profile from the period from 2002. This is a different audit from the random audit described above, which is commonly referred to as a "reverse audit." The applicant seeks to determine who, if any, of the authorised users of COPS have conducted a COPS search on information about him. Such a COPS audit would not usually be created for any purpose other than routine auditing for corruption prevention, or as part of a complaint investigation. Requests for these types of audits must be referred to either the PSC, or Regional Professional Standards Managers, as local officers do not have the requisite authority or access to COPS to carry of the audit.
14. CI Holgate stated that the disclosure of a COPS audit could cause detriment to the NSWPF's ability to effectively discharge its functions by enabling persons to become aware of whether they have been, or are, under investigation by the NSWPF. For example, by disclosing a COPS audit, it is possible that an applicant could discern from the results whether particular conduct had come to the attention of or been reported to the NSWPF by making an application, or series of applications, specifying a particular date or location. The release of a COPS audit could enable a person to deduce the nature of investigations that have or are being conducted. Further, if corrupt police were provided with audit information and discovered that their Commander or officers attached to the PSC have accessed their details in COPS, they could deduce that they were the subject of an internal investigation. They could warn co-offenders or dispose of evidence.
15. In addition, applicants could make regular requests for audit information to deduce if there had been a change to the number of enquiries regarding them made by police, indicating they have commenced, or have ceased, to be the subject of an investigation. Further, if police were required to release audit information on the basis that there was no ongoing investigation, later refusal to release the same information would allow the applicant to deduce that they had come under investigation simply because of the refusal to release the information.
16. CI Holgate also stated that a person of interest could determine if an officer who has performed a particular search of COPS works at State Crime Command rather than a LAC. This would be indicative of the level of the respondent's attention, and could be used to draw deductions as to the seriousness of the matters being investigated. Further, as the COPS audit lists the dates and times of an inquiry by a police officer and the exact nature of the inquiry, a person of interest can determine for how long they have been the subject of police interest, particularly if the COPS audit indicates information reports have been created on them. From these dates and times, the person of interest will be able to determine what criminal activities or enterprises have come to notice. If the person of interest suspects or identifies a pattern to the activity, they could infer a disclosure of information to police from an associate/informant, which could lead to a threat to life against that associate.
17. Disclosure could also enable a person to ascertain ways in which to modify their behaviour, in order to disrupt future law enforcement efforts. For example, a person of interest could deduce that certain electronic devices in their possession are subject to interception warrants, and could dispose of those devices and/or change methods of communication, or they could transfer or dispose of illegal assets upon becoming aware that these assets are subject to scrutiny.
18. CI Holgate deposed that release of a COPS audit could compromise the supply of confidential information to the NSWPF by identifying informers. An applicant could seek a COPS audit for specific days or times and from the provision of information confirming their details were accessed by an officer at the relevant time could conclude that conduct only known to a particular person or persons was reported to the respondent. This would reveal the identity of an informer.
19. The NSWPF relies heavily on information provided my members of the community in discharging its functions and it is vitally important that members of the public and internal police complainants trust that the information they give in the course of criminal or departmental investigations will be kept confidential. In my opinion, if the public was aware that a person could be given access to information that may lead to them being identified as informants, members of the public would be reluctant or refuse to assist police in future investigations due to fear that they could be identified as a reporter or source.
20. CI Holgate also stated that if members of the community were not willing to provide that information, because their identity could be identified from the disclosure of a COPS audit in response to a GIPA access application, the ability of the NSWPF to be able to investigate and prosecute contraventions of the law would be affected.
21. CI Holgate also stated that release of COPS audit reports could lead to threats to the lives and wellbeing of police officers. If a person becomes aware that their conduct has come to the attention of a particular officer, or unit within the NSWPF, this could lead to officers being targeted, either for the purposes of making threats or intimidation, or otherwise seeking to corrupt an investigative process. This would be detrimental to the respondent's obligations relating to the management of employee conduct and welfare as prescribed in the Government Sector Employment Act 2013 (NSW) and the Work Health and Safety Act 2011 (NSW).
22. CI Holgate also deposed that he has serious concerns that release of COPS audit reports would reveal details of confidential law enforcement methodologies, and methods of intelligence and evidence collection, having regard to the types of information that would be revealed by an audit report. Further, disclosure of the fact that a person is not the subject of an ongoing investigation, or that a particular conduct has not come to the attention of the NSWPF, could be valuable information for a person undertaking unlawful activity, and could assist in their continuing efforts to evade police attention.
23. CI Holgate stated that for these reasons, COPS audit reports are highly sensitive and confidential documents which are only made available within the NSWPF on a need-to-know basis. He concluded that while an applicant cannot access an audit report of their unique COPS profile, if they believe that officers have unlawfully accessed their details on COPS, they can make a complaint either to the NSWPF, the NSW Ombudsman or the Law Enforcement Conduct Commission which serves as a corruption prevention measure.
24. For these reasons, CI Holgate concluded that the release of a COPS audit is contrary to the public interest.

Respondent's submissions

1. The respondent filed written submissions on 11 July 2022.
2. The respondent stated that 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 of the GIPA Act, unless there is an overriding public interest against disclosure (s 9(1)) or the respondent is otherwise entitled to refuse to deal with the access application.
3. The Tribunal may review the respondent's decision under s 100 of the GIPA Act and the agency bears the onus of proving that its decision was justified (s 105(1)). In making its decision, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision (s 63(2) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
4. The Tribunal may have regard to any relevant material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
5. The guiding principle to be applied to the Tribunal's practices and procedures is set out in s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act): 36. Guiding principle to be applied to practice and procedure (1) the "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Tribunal is obliged to give effect to this principle when it exercises any power or interprets any provision under the NCAT Act and the procedural rules.
6. Section 13 of the GIPA Act provides that 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." The only public interest considerations against disclosure that may be considered are those listed in the Table to s 14 of the GIPA Act.
7. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) the Tribunal confirmed that in all cases other than those falling under sch 1 of the GIPA Act, agencies are to apply the public interest test under s 13 of the GIPA Act by: (1) identifying the public interest factors in favour of disclosure (s 12); (2) identifying the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determining whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
8. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal noted (at [94]) that when weighing the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation. That is, a decision maker must simply balance the competing public interest factors for and against disclosure in each specific case, rather than apply some other test for determining whether there is an overriding public interest against disclosure of the information.

Public interest factors in favour of disclosure

1. The respondent noted that s 12 of the GIPA Act provides that there is a general public interest in favour of disclosing government information. The respondent also accepted that the following public interest considerations weigh in favour of disclosing the disputed information to the applicant: 1. The records generally contain information which relates to the applicant or which is known to the applicant; and 2. The public has a general right to access government information held by agencies.

Public interest factors against disclosure

1. The public interest factors against disclosure in the Table to s 14 of the GIPA Act depend on whether the disclosure "could reasonably be expected to" have the stated effect. In Flack, the Tribunal held that the proper construction of the phrase "could reasonably be expected to" was to give the words their ordinary meaning. The test is an objective one and a question of fact. The "reasonable expectation" means something that is "more than a mere possibility, risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC: see Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

Clauses 1(f) 1(h) and 2(b) of the Table to s 14(2) of the GIPA Act.

1. The respondent relies on the evidence of CI Holgate. He deposed that the respondent's core function is to provide police services for the State. In particular, the respondent's delivery of police services includes services by way of the prevention and detection of crime, and the protection of persons from injury or death, and from property damage, whether arising from criminal acts or in any other way (s 6(3)(b) of the Police Act). Part of the respondent's mission is to do anything necessary for, or incidental to, the exercise of its functions (s 6(3)(c) of the Police Act). Accordingly, the respondent should utilise all available means to deliver its functions.
2. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), the Appeal Panel of the Administrative Decisions Tribunal accepted that public interest considerations against disclosure need to examined at a broad operational level and that those considerations are concerned with systemic features of the operation of government.
3. The respondent argued that the process of conducting a COPS audit is an important part of the NSWPF's corruption prevention strategy and important to ensure access is restricted to a need-to-known basis. Further, the disclosure of the COPS audit could reveal the identity of confidential informants because an applicant could seek an audit report for specific days or times and from the provision of information could conclude that conduct only known to a particular person or persons was reported to the respondent. this would reveal the identity of an informer and would have a significant impact on the NSWPF's ability to effectively perform its law enforcement functions.
4. The respondent also argued that the release of the COPS audit could lead to threats to the lives and wellbeing of police officers. An additional function relevant to the disputed information pertains to the respondent's core function of the management and control of the NSWPF as outlined in s 8 of the Police Act. The management of employee conduct and welfare are also functions of the respondent under the Government Sector Employment Act 2013 (NSW) and the Work Health and Safety Act 2011 (NSW).
5. Also, if a person becomes aware that their conduct has come to the attention of a particular officer or unit within the NSWPF, this could lead to officers being targeted, either for the purposes of making threats or intimidation, or otherwise seeking to corrupt an investigative process. Therefore, the disclosure of the COPS audit could have a detrimental impact to the respondent's ability to carry out their core functions in relation to police officer conduct and welfare.

Clause 1(h) of the Table to s 14(2) of the GIPA Act.

1. The respondent argued that the disclosure of the COPS audit will significantly impact on the effectiveness of the COPS audit process, because applicants may be able to modify their behaviour so as to avoid detection. Further, disclosure will enable police officers to modify their behaviour so as to avoid detection, which would have significant impact on the prevention of corruption.
2. In Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 (Denyer), the Tribunal considered the disclosure of a COPS audit and followed the approach taken in Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett). In Denyer, the Tribunal stated, relevantly: 46. In addition reference was made to the case of Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett). Barrett concerned access to audit material from Police and looked at the terms of this type of request and the impact that it could have on both the organisation and particular investigations specifically. At paragraphs [49] - [56] the Appeal Panel observed: 49. We accept that any GIPA Act request may present a risk for a law enforcement agency that an applicant may gain a tactical advantage in relation to an ongoing investigation or in relation to any prospective investigation. The conclusive presumptions give comprehensive protection to some of the internal databases of the agency (see Sch 1, cl 7). They do not include the COPS database… 52. While there is a 'general public interest in favour of disclosure of government information' (s 12(1)), the weight to be given to that interest will vary significantly depending on the functions of the agency to which the access application is directed, and the character of the information. 53. In this case the agency is a law enforcement agency, and the information sought might have shed light on one admitted interaction between the agency and the applicants, and, in the applicants' view, on a second event. 54. The aspect of the request with which Inspector Sheather had the most concern was the opening words of each of items 1 to 5. They sought access to the 'computer printed audit trails of all people' who have utilised the databases for searches, of the kinds listed in items 1 to 5, over the period specified in the request. Inspector Sheather considered that to accede to any request of this kind so framed, would put at risk the security, integrity and confidentiality of the auditing processes and standards of the agency. This is a serious concern, and it was not displaced by any contrary evidence or challenge. 55. A more narrowly expressed request and one that had, perhaps, been confined to a narrower time period might not have given rise to such strong concern, for example one directed to investigator searches of the number plate, driver's licence, home address search functions. But this request was, as we see it, widely framed, and a request that uses terms such as 'computer audit trails' opens up the issues of reach and effect on the organisation's audit practices raised by Inspector Sheather. He explained in his statement that there are processes and functionaries on the audit side of the agency's functions whose work would be compromised by a positive response to a request of this kind. 56. The PICAD to which we attach significant weight is that disclosure might reasonably be expected to the effect of prejudicing the conduct or integrity of audit functions of the agency.
3. Also in Denyer, the Tribunal stated: 76. In my view, the principles in Barrett carry significant weight to the Clause 1 (f), 1 (h) and 2 (b) grounds. The fact that the information could reasonably be expected to have the stated effect is clear from the unchallenged evidence of Chief Inspector McCarthy. 77. Whilst the applicant might have suspicions that he was subject to unauthorised scrutiny and was also subject to 'information grazing' or unauthorised searches by colleagues with access to the system, that does not mean that this occurred. The applicant would need to provide evidence sufficient to establish that the significant weight which I give to the cl 1 (f), (h) and 2 (b) grounds should diminish.
4. The respondent also referred to the Tribunal's decision in Rivero v Commissioner of Police, NSW Police Force [2019] NSWCATAD 115 (Rivero), where it considered the releaser of a COPS audit (called an audit report) in response to an application under the GIPA Act. The Tribunal agreed with the approach in Denyer and Barrett that 'disclosure of the audit report could reasonably be expected to prejudice the: (1) effective exercise of the respondent's function (at [59]). The Tribunal stated (at [60]) that 'it is not necessary that the respondent establishes that this expected prejudice is in relation to the applicant.'
5. The respondent argued that because of the significant public interest in ensuring that no prejudice is suffered by the respondent in exercising its crucial policing functions, the public interest considerations against disclosure of the COPS audit should be given substantial weight by the Tribunal, following the approach in Barrett, Denyer and Rivero. It also argued that when dealing with information pertaining to law enforcement functions, the rights of the individual are subordinate to the interests of the public at large.
6. The respondent submitted that s 55 of the GIPA Act provides that the Tribunal is entitled to take into account the personal factors of the application, which are: (1) the applicant's motives for making the access application; and (2) any other factors particular to the applicant. The applicant's motives for making the access application are set out in the GIPA application dated 31 January 2022. However, while the applicant might have suspicions that he is subject to unauthorised scrutiny, information grazing or unauthorised searches, that does not mean that this occurred and he would need to provide evidence sufficient to establish grounds as to why any weight given to clauses 1(f), 1(h) and 2(b) should diminish (Denyer at [76]-[77]).
7. The respondent argued that in circumstances where an applicant is seeking an avenue for inappropriate conduct directed against them, the Tribunal has stated that the use of the GIPA Act to audit potential police misconduct is somewhat misdirected (Denyer at [80]-[81]). Therefore, on balance, the public interest considerations against disclosure of the withheld information outweighs the public interest factors in favour of disclosure.
8. In any event, under s 73(1) of the GIPA Act, the respondent is not allowed to impose conditions on the use or disclosure of information that is released. This prevents the respondent from mitigating some of the risks associated with release of the disputed information to the applicant.
9. Accordingly, the correct and preferable decision is for the Tribunal to affirm its decision to refuse the applicant access to the COPS audit.

Applicant's oral submissions

1. The Tribunal asked the applicant whether he wished to make any oral submissions because he had not filed any evidence or written submissions.
2. The applicant replied to the effect that he "…cannot really respond…it appears to me that they are looking at me for something… I am dumbfounded that it has gone this far."
3. The Tribunal then asked the applicant if he wished to make any submissions about the grounds relied upon by the respondent?
4. The applicant replied "No".

Legal principles

1. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
2. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
3. The time at which the Tribunal is to determine the correct and preferable decision is the time that the Tribunal makes its decision: see YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

1. In respect of access applications, s 9 (1) of the GIPA Act relevantly provides: 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.
2. The Notice of Decision dated 18 February 2022 is a "reviewable decision" in respect of an access application within the meaning of s 80 of the GIPA Act and is reviewable by the Tribunal under s 100 of the GIPA Act.
3. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance.
4. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
5. Section 12 provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
6. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
7. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: (1) identify the public interest in favour of disclosure (s 12); (2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
8. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
9. Section 14 provides, relevantly: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
10. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
11. Section 55 provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
12. Section 73 requires that access be unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
13. Section 105 places the onus on the agency to establish that its decision was justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]; Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7].

Grounds relied upon by the respondent

1. In this matter the respondent relies upon cll 1(f), 1(h) and 3(b) of the Table to s 14(2) of the GIPA Act.
2. The respondent stated that in making this decision, it applied the public interest test in the manner required by s 15 of the GIPA Act. It cited the following public interest considerations in favour of disclosure in s 12 of the GIPA Act: (1) The statutory presumption in favour of the disclosure of government information; (2) The general right of the public to have access to government information held by the agencies; (3) The information under review is related to the applicant; and (4) The reasons provided in the GIPA application.
3. The respondent stated that while it gave these s 12 considerations weight, it gave strong weight to the considerations against disclosure in cll 1(f), 1(f) and 2(b) of the Table in s 14(2) of the GIPA Act), and it determined that the considerations against disclosure outweighed the s 12 factors. Therefore, there was an overriding public interest against disclosure.

Clauses 1(f) and 1(h)

1. Clauses 1(f) and (h) of the Table to s 14 of the GIPA Act provides that 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) - (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).
2. Based upon the evidence of CI Holgate, which was not challenged by the applicant, I am satisfied that cll 1(f) and 1(h) apply to the disputed information in this matter.
3. I note that the application for administrative review the applicant set out a single ground of review, namely that the respondent's refusal to release his file was based on a claim "for the safety of their officers." He stated, "This claim alone is very concerning in itself as I have had no dealings with Police since a teenager at school."
4. However, the decision in Camilleri is authority for the proposition that public interest considerations against disclosure need to examined at a broad operational level and are concerned with systemic features of the operation of government. It is not necessary that the considerations relate to the applicant in particular.

Clause 2(b)

1. Clause 2(b) of the Table to s 14(2) of the GIPA Act provides: disclosure could reasonably be expected to prejudice the prevention, detection or investigation of a contravention of the law or prejudice the enforcement of the law.
2. Based on CI Holgate's evidence, I am satisfied that cl 2(b) applies to this matter and that disclosure of the COPS audit could reasonably be expected to prejudice the prevention, detection or investigation of a contravention of the law or prejudice the enforcement of the law.
3. In Denyer, the Tribunal considered the disclosure of a COPS audit and followed the approach taken by the Appeal Panel in Barrett, which was set out in detail in the respondent's written submissions (above). The Tribunal held that the principles discussed in Barrett afford significant weight to the considerations in cll 1(f), 1(h) and 2(b) and the fact that the information could reasonably be expected to have the stated effect is clear from the unchallenged evidence of the respondent.
4. In Rivero, the Tribunal considered the release of a COPS audit in response to a GIPA application and adopted the approach adopted in Denyer and Barrett. The Tribunal held that significant weight should be given to the clause 1(f), 1(h) and 2(b) considerations against release of the audit report and it was satisfied that the release could reasonably be expected to have the stated effects that the respondent identified. The Tribunal agreed with the identified public interest considerations in favour of disclosure, but held that in the circumstances of the matter, the weight to be given to those considerations was less than the weight to be given to the considerations against disclosure.
5. I agree with the Tribunal's approach and comments in Denyer, Barrett and Rivero. The evidence of CI Holgate is unchallenged and based upon those decisions, I am satisfied that the grounds under cll 1(f), 1(h) and 2(b) should be afforded significant weight.

Balancing the public interest considerations

1. In applying s 13 of the GIPA Act, I have adopted the approach discussed in decisions including Flack and Hurst, which are is discussed previously in this decision.
2. For the reasons set out above, I am satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by those identified as relevant in the Table to s 14.

Conclusion

1. For the reasons set above, I am satisfied that the correct and preferable decision is that the COPS audit should not be disclosed to the applicant.

Order

1. The respondent's decision dated 16 February 2022 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: 16 August 2022