Douglas v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-12-16

REASONS FOR DECISION

On 27 January 2021, Joseph Douglas (the Applicant) applied to the Commissioner of Police, NSW Police Force (the Respondent) for access to the following information pursuant to s 9(1) of the Government Information (Public Access) Act 2009 (GIPA Act): Purpose of application: Obtaining important information that I supplied to Crime Stoppers NSW at the end of 2013 … Between September 2013 and January 2014, I cannot recall the exact date, it is closer to the end of 2013 could be October, November or December but it is in those 4 months between September 2013 and January 2014. I made a call from a very cheap mobile phone that was not registered in my name, that I purchased from a shop in Punchbowl, with the SIM card already activated to Crime Stoppers NSW 180 333 000… 1. All the details in regards to this call that I made. 2. The recordings of this call. 3. All the steps that the operator and NSW police did after I made this call to Crime Stoppers NSW. Who was informed and the emails or massages [sic] in regards to this call. 4. All information and the Intel held by any NSW government organization in regards to this call that I made to Crime Stoppers NSW (1800 333 000) at [sic] around the end of 2013.
On 30 January 2021, an officer for the Respondent made a decision and advised the Applicant that the searches conducted did not locate any information responsive to the access application (Original Decision). On 19 February 2021, the Applicant applied for internal review of the Original Decision, contesting the adequacy of the Respondent's searches. On 5 March 2021, the Respondent made a decision and advised the Applicant that it did not hold information responsive to the access application (IR decision).
On 29 March 2021, the Applicant applied to the NSW Information and Privacy Commission (IPC) for review of Respondent's IR Decision. On 31 May 2021, the IPC provided the Applicant and Respondent with the outcome of its review, stating that on the information available it was not satisfied that the Respondent's decision was justified, and recommended under section 93 of the GIPA Act that the Respondent make a new decision by way of internal review. On 8 June 2021, the Respondent accepted the IPC's recommendation to make a new decision by way of internal review and issued a new decision by way of internal review, that determined under section 42(1)(e) of the GIPA Act that the access application did not include such information as was reasonably necessary to enable the government information applied for to be identified. This was because the call said to have been made to Crime Stoppers was made anonymously, so the Respondent was not able to link and verify a record of a call to the Applicant (IR Decision 2).

Tribunal's jurisdiction

The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s28 of the CAT Act and s9 of the ADR Act.
In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3).
In determining the application, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure: GIPA Act, s 107(1).

GIPA Act

Section 3 of the GIPA Act provides the purpose and objects of the GIPA Act: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by-- (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament-- (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
A person who applies for access to government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information: GIPA Act, s 9(1).
The Supplementary Decision is a reviewable decision under section 80(g) of the GIPA Act. In a Tribunal review, the agency bears the onus of establishing that its decision was justified: GIPA Act, s 105.
Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure.
Sections 12 to 15 of the GIPA Act require an agency (and the Tribunal) to conduct a balancing exercise, weighing up competing public interest considerations for and against disclosure, to justify a decision made in relation to an access application. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) further provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure. The Note to s 12(2) lists examples of the types of considerations in favour of disclosure that may be taken into account: The following are examples of public interest considerations in favour of disclosure of information-- (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 13 of the GIPA Act sets out the 'public interest test' for determining whether there is an overriding public interest against disclosure of information, as follows: 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.
Section 14 prescribes the public interest considerations against disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure. The Table to s 14 sets out the only considerations against disclosure that may be taken into account when applying the public interest test in s 13.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [19], the Tribunal confirmed that in all cases other than those falling under Schedule 1 of the GIPA Act, agencies are to apply the public interest test under section 13 of the GIPA Act by: 1. identifying the public interest in favour of disclosure; 2. identifying the public interest against disclosure (with reference to the Table); and 3. determining where the balance lies.
This approach was confirmed in Hurst v Wagga Wagga City Council [2011] NSWADT 307, where at [94] the Tribunal noted 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", and has been applied in many subsequent Tribunal decisions.
Section 58 of the GIPA Act provides (emphasis added): 58 HOW APPLICATIONS ARE DECIDED (1) An agency decides an access application for government information by-- (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note: These decisions are reviewable under Part 5. (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.
Section 58(1)(f) of the GIPA Act was discussed by the Appeal Panel in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 (Barrett) at [79] to [81] and [85] to [87]: 79. 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. 80. 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. 81. 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. … 85. 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. 86. 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. 87. 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.)
In justifying a refusal based on s 58(1)(f), the agency should explain why it is necessary for it to go beyond the most usual grounds for adversely responding to an application (s 58(1)(d) and s. 58(1)(b)): see Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 at [76]. The Tribunal thereby applies a two stage process to determining whether an agency can refuse to confirm or deny that information is held by that agency, in order to satisfy the requirements of both section 58(1)(f) and 105(1) of the GIPA Act: 1. First, the agency must demonstrate its justification for refusing access to the information sought: s 58(1)(d). If the information is not subject to a conclusive presumption against disclosure (being, for instance, government information described in Schedule 1 to the GIPA Act), then the balancing exercise required of s 13 must be applied to demonstrate that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. 1. Alternatively, if there is no information held by the agency (s 58(1)(b)) it would need to satisfy the Tribunal, by reference to the evidence relating to adequacy of searches, that reasonable searches were undertaken. 1. Second, the agency must justify its decision to refuse to confirm or deny the mere existence of the information sought. This involves identifying the 'special or unique features' which would justify the agency's reliance on this exceptional ground.

"Could reasonably be expected…"

The public interest considerations against disclosure in the Table to section 14 of the GIPA Act depend on whether the disclosure "could reasonably be expected to" have the stated effect. The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 (Cockcroft) at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].

Consideration

As submitted by the Information Commissioner, some errors were made in the review of decisions by the Respondent, however these do not affect the decision under review, which is the Supplementary Decision made on 11 October 2021 pursuant to s 58(1)(f) of the GIPA Act: 6. On 8 June 2021, the Respondent made a new decision in accordance with the s. 93 recommendation by the Information Commissioner in her external review report dated 31 May 2021.1 The new decision was made by way of internal review. Section 93(3) of the GIPA Act provides that an agency's reconsideration of a decision in accordance with a recommendation of the Information Commissioner under s. 93(1) "is to be by way of internal review of the decision (under Division 2) unless the decision has already been internally reviewed, in which case the agency is to reconsider the decision and make a new decision". The decision had already been internally reviewed by the Respondent on 5 March 2021. Therefore, the Respondent should have reconsidered the decision and made a new decision as if the decision reviewed had not been made. 7. On 24 June 2021, the Applicant sought an internal review of the Respondent's internal review decision of 8 June 2021. 8. On 30 June 2021, the Respondent made an internal decision in relation to its internal review decision of 8 June 2021. Section 82(4) of the GIPA Act provides that "there is to be no internal review of a decision that is or has been the subject of review by the Information Commissioner under this Part except internal review conducted on the recommendation of the Information Commissioner." A person is also not entitled to an internal review of a decision made on the internal review of a reviewable decision (s. 88). However, as noted above (at [6]), where a decision has already been internally reviewed, an agency making a new decision in accordance with a s. 93(1) recommendation of the Information Commissioner should reconsider the decision and make a new decision as if the decision reviewed had not been made: s. 93(3). Accordingly, ss. 82(4) and 88 of the GIPA Act did not prevent the Respondent from conducting the internal review of 30 June 2021 because the internal review was a review of what should have been a new decision (the decision dated 8 June 2021) made as if the decision reviewed had not been made.
The Applicant's submissions included references to the various decisions made by the Respondent, complaining that the Respondent was seeking to hide the information he was seeking by 'going round in circles' in making different decisions on review. He considered this conduct to be indicative of corruption by the Respondent. The Tribunal rejects that submission as without logical or evidentiary basis. While the review history of this application is somewhat complex, the decision which is subject to the Tribunal's review is clearly identifiable as the Supplementary Decision made by the Respondent on 11 October 2021, and the Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
In considering what is the correct and preferable decision, the Tribunal will first determine whether the public interest considerations against the disclosure of the information outweigh those in favour, and then determine whether the Respondent's decision to refuse to confirm or deny whether it holds the information pursuant to s 58(1)(f) of the GIPA Act is justified.

Public interest considerations in favour of disclosure

The Respondent accepted that the public interest considerations in favour of disclosure included the general public interest pursuant to s 12(1) of the GIPA Act, and the general right of the public to have access to government information held by the agency.
The Applicant's evidence and submissions seemed to rely on additional public interest considerations in favour of disclosure, including that the information sought was his information (s 12(2)(d)), that the information he sought would 'expose the corruption that occurred in the investigation after I provided the valuable information to crime stoppers' (s 12(2)(e)), that the information he requested 'impacted me directly, it is important evidence that was kept away from the Court by the investigating detectives'. He stated: I'm not asking for information to reveal the code numbers and the names of the NSW undercover Police and I am not asking for information to release the nuclear codes of the nuclear submarines. I provided this information to the agency in the first place. This information is already known by me and by witness and now after GIPA application is known by many people including the Tribunal and the IPC, and this information has affected me and impacted me directly and it also impacted many Australian Citizens such as my family, children, my ex-wife, girlfriend, relatives and friends.
The Applicant implied that the information he sought would, if disclosed, have the effect of proving his innocence. The details of what exactly he had been accused or convicted of, or how the information would 'prove' his innocence in relation to unspecified matters, were not explained in sufficient detail to the Tribunal to allow any kind of inference or factual finding to be made. Nor was any objective evidence provided to the Tribunal to support or explain this assertion. In any event, the advancing of a private interest the Applicant may have is not, of itself, a matter of public interest, although it may serve to highlight a public interest: JY v Commissioner of Police [2008] NSWADT 306 at [55], see also discussion in Saleam v Director General, Department of Community Services and Ors [2002] NSWADTAP 30.
Further, to satisfy the Tribunal that the information sought could reasonably be expected to reveal or substantiate that the Respondent has engaged in misconduct or negligent, improper or unlawful conduct (s 12(2)(e)), the Applicant would need to provide a reasonable basis for this, by reference to the evidence: Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [116] to [117], Barrett at [136]-[137].
The list of public interest considerations in favour of disclosure is not limited to those specifically identified in the note to s 12(2) of the GIPA Act (as outlined above at [16]). However for the Tribunal to take a consideration into account, the Applicant would need to demonstrate that the information sought 'could reasonably be expected to' have the effect relied on. The Tribunal was not provided with any evidence to support the assertion that the withholding of the information sought indicated 'corruption in the investigation', and in circumstances where the information was said to have been provided anonymously it is difficult to confirm that the information is, in fact, the personal information of the Applicant. However, even if the Respondent held information in response to the access application, and its contents were as anticipated by the Applicant, on the evidence before me there is no reasonable basis upon which the Tribunal could find that its disclosure would substantiate any misconduct by the Respondent.
In the circumstances I give the general public interest considerations in favour of disclosure identified by the Respondent significant weight, but do not accept that there are any other identified public interest considerations in favour of disclosure of the information.

Personal factors

The Applicant's personal interest or motivation for making the access application is relevant as a consideration in favour of disclosure: GIPA Act, s 55(2).
The only information or evidence provided by the Applicant as to how the information he was seeking impacted him or his family and friends, or why he was seeking the information, was contained in his statement and the statement of Rimon Mansour. The statements were broadly similar in content, expressing a love for Australia, their Australian citizenship and the belief that the information sought by the Applicant should therefore be released to him. Mr Mansour's statement contained references to him being "confined in" by the Applicant in late 2014 in relation to the content of the conversation the Applicant said he had disclosed to Crime Stoppers, being the subject of his access application. Assumedly this was a reference to the Applicant confiding in Mr Mansour. However the evidence of the Applicant confiding in Mr Mansour, if it is to be believed, only demonstrates that his assertion that he was the only possible person who knew the information he claims to have disclosed to Crime Stoppers is unfounded.
In those circumstances and as expressed above at [31], I accept that the Applicant has a personal interest in the information sought and give this factor reasonable weight in favour of the disclosure of the information.

Public interest considerations against disclosure

The Respondent relied on the following public interest considerations against disclosure identified in the Table to s 14(2) of the GIPA Act: 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. Table 2 - Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, …

1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, and 1(f) - prejudice the effective exercise by an agency of the agency's functions.

The Tribunal has previously accepted that there is overlap between items 1(d) and 1(f) of the Table to s 14(2) of the GIPA Act: Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at [22], and has referred to item 1(f) as a "fall back position" to that contained in item 1(d): Hooper v Willoughby City Council [2021] NSWCATAD 208 at [150].
The Respondent submitted that the public interest considerations against disclosure in items 1(d) and 1(f) of the table in section 14(2) of the GIPA Act applied to the Applicant's access application in its entirety. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] to [34] the Appeal Panel held that the question as to whether information is "confidential information" is to be examined by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The Appeal Panel further held that in considering confidentiality, focus should be on the point of receipt, and the administrative standards and community understandings which surrounded it. This analysis has been upheld in further cases: NSW Henry George Foundation v Director General, Department of Attorney General and Justice (NSW) [2013] NSWADT 2 at [37] to [42] and Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 at [47] to [49].
According to the Walters affidavit, the information the Respondent obtains by way of Crime Stoppers is confidential information which is disclosed to the NSW Police Force on a confidential basis: Crime Stoppers is promoted to the public as a confidential way of reporting information in relation to crime, suspicious or unusual activity. Members of the public are expressly assured that the information they provide will be treated in the strictest of confidence. The community is further told that people can report to Crime Stoppers confidentially. All callers are asked if they wish to leave their contact details and if so, the details are recorded in a secure police system. These details are provided to investigating police upon a request to the Crime Stoppers Unit where appropriate. The offer of confidentiality encourages the community to provide information to police, when they might otherwise not do so. These assurances to the public are promoted on the Crime Stoppers and NSW Police Force websites, in newspapers, public areas and radio broadcasts, particularly when police are seeking information to solve a specific crime. Police use the information provided to Crime Stoppers to inform their investigations. Crime Stoppers encourages the public "if they see something, say something", no matter how big or small the information.
I accept the respondent's evidence and submissions that information provided to Crime stoppers is 'confidential information' within the meaning of the GIPA Act.
When considering the public interest in the disclosure of information in the course of detection and investigation of a potential criminal offence, Smart AJ stated in Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 at [69]: When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police.
The Respondent's core function is to provide police services for the State, which includes the prevention and detection of crime and the protection of persons from injury or death and property from damage: s 6, Police Act 1990 (NSW). Crime Stoppers is one of the tools used by the Respondent to obtain information from the public to investigate and monitor potential criminal activity. I accept the Respondent's evidence and submissions to the effect that part of the effectiveness of the Crime Stoppers program is that information is treated confidentially so members of the public can anonymously report criminal activity without fear of information being publicly released.
The Applicant submitted that because he was the informant who made the call (the subject of the access application) to Crime Stoppers, the disclosure of the content of the call would not prejudice the Respondent's functions. However, the Tribunal does not need to be satisfied that a specific individual would, in future, refuse to supply information. Rather, the Tribunal's task is to consider whether information of the kind in question facilitates the exercise of the Respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Dezfouli v Commissioner of Police [2020] NSWCATAD 103 at [32] citing Flack at [52]. This is to be determined at a broad operational level: Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [26], with the relevant test being whether the agency will be able to obtain such information in the future: Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80 at [38].
I accept the Respondent's evidence and submissions that there is a real risk that members of the public will be less inclined to report information to Crime Stoppers and the NSW Police Force in the future if there is a chance that the information they report may be publicly disclosed, and without the flow of Crime Stoppers information from the public, the Respondent's ability to prevent and detect crime would be impacted significantly. This would have the impact of significantly impacting the effective exercise of the Respondent's functions.
Accordingly I give the public interest considerations against disclosure at items 1(d) and 1(f) of the Table to s 14(2) of the GIPA Act significant weight.

T2(a) - reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant

The Respondent submitted that the public interest consideration against disclosure contained in item 2(a) of the of the table to section 14 of the GIPA Act applied to the entirety of the information sought in the applicant's access information.
The Applicant submitted that because he was the only possible person who knew the information contained in the telephone call he made to Crimes Stoppers, there was therefore no risk of identifying an informant (other than himself) or prejudicing the future supply of information from informants. However, as the Respondent submitted, to confirm or deny the existence of any report made to Crime Stoppers would indicate the extent of information held by the Respondent in relation to particular criminal investigations. It is also impossible in the circumstances to accept the Applicant's assertion that he was the only individual who knew the information he is claiming to have expressed in the alleged call, so the disclosure could reasonably be expected to reveal the identity of another informant, if one existed.
I accept therefore that the public interest consideration against disclosure contained in Item 2(a) of the Table to s14(2) of the GIPA Act applies and I give that consideration significant weight.

T2(b) - prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law

The Respondent submitted that the public interest consideration against disclosure contained in item 2(b) of the table to section 14 of the GIPA Act applied to the Applicant's access application in its entirety.
In Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 at [17] the Tribunal held that the consideration in item 2(b) operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this consideration is a public interest in law enforcement agencies being able to maintain the integrity of their investigative methods. An actual contravention of the law is not required to exist in order to establish the ground: UC v Commissioner of Police, NSW Police [2005] NSWADT 272 at [33].
As discussed above at [42] and [45], the information sought by the access application directly relates to the Respondent's law enforcement functions, including particulars about an alleged crime or criminal activity and the identity of alleged offenders, and the investigative methods employed by the Respondent. I accept the Respondent's submission that any such information, if held, enables the Respondent's police officers to detect, investigate and combat crime and maintain public safety, and if the Respondent was to confirm or deny the existence of information of this kind, persons may be alerted to such information that could enable them to avoid detection or subvert police. In turn this could jeopardise the integrity of police investigative methodologies and would thereby prejudice the prevention, detection and investigation of a contravention or possible contravention of the law, and prejudice the enforcement of the law.
In Betzis v Commissioner of Police [2020] NSWCATAD 71 at [60] the Tribunal determined that item 2(b) applied to information contained in the NSW Police Force's Investigation Management System because it disclosed the investigative and other techniques employed by the NSW Police in the discharge of its functions of detecting, preventing and investigation contraventions or possible contraventions of the law which, if released, could be used by persons seeking to evade police attention. On the evidence before me I accept that the information sought by the Applicant, if disclosed, could have a similar effect.
However item 2(b) will not apply to information concerning a completed investigation, or where the information does not apply to a particular ongoing investigation: Tedder v Commissioner of Police, NSW Police Force [2017] NSWCATAD 226 at [31]. The evidence before the Tribunal that the information sought relates to any ongoing investigations is limited. The effect that disclosure of the information sought would have is more appropriately dealt with in the context of the considerations at items 1(d) and 1(f) of the Table to s 14(2), to which I have given significant weight.
In the circumstances I am not satisfied that the public interest consideration at item 2(b) of the Table to s 14(2) of the GIPA Act applies.

Balancing exercise

Having considered the public interest considerations for and against disclosure and the Applicant's personal interest in the information sought by his access application, I agree with the Respondent that the public interest considerations against disclosure outweigh those in favour, and the Respondent would therefore be justified in deciding to refuse access to the information pursuant to s 58(1)(d) of the GIPA Act, if such information were held by the Respondent.

Refuse to confirm or deny whether information held

As discussed above, the Respondent relies on s 58(1)(f) of the GIPA Act to the effect that its decision in relation to the Applicant's access application is that it refuses to confirm or deny that such information is held by it. This requires the Respondent to identify the special or unique features which justify this 'exceptional' ground. Those special or unique features are expressed in the Walters affidavit to be the context of the information sought, being an anonymous phone call made to the Crime Stoppers phone number.
The Respondent relied on the evidence contained in the Walters Affidavit, which was not disputed by the Applicant. Law enforcement agencies, including the Respondent, obtain information from a variety of sources including victims and witnesses of crime, but also members of the community who may suspect the criminal activities are occurring or have information which may be of assistance to police, when taken together with other information held by police (referred to in various decisions as the 'mosaic effect' - see Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 291 at [33]). As discussed above at [42], Crime Stoppers is a program used by the Respondent to obtain confidential information from members of the public. It is a community-based program which encourages members of the public to provide information to the police about criminal activity and crime. It is a confidential service - meaning that the program focuses on what people know, rather than the identity of the person making the call. Once information is received it is assessed and, in some cases, passed on to the relevant law enforcement agency. Maintaining the confidentiality of a caller and the content of their call is vital to ensuring the success of the Crime Stoppers program. Publicly disclosing information obtained from Crime Stoppers and how this is or was used by law enforcement agencies may dissuade members of the community from reporting to Crime Stoppers in future. Further, the extent to which a law enforcement agency holds information about an alleged criminal matter is confidential information and not publicly disclosed. If information of this kind is disclosed, it can prejudice an investigation because the person or persons to whom the information relates may modify or adapt their behaviour in order to evade police. This would have a serious impact on the NSW Police Force's law enforcement functions. I accept the Respondent's evidence.
In circumstances such as these, where the Applicant's claim is that he made a telephone call to Crime Stoppers anonymously, any record of that call (if held) does not identify the Applicant. The only identifying details provided by the Applicant are that the call took place some time within a five month period in 2013/2014, and its content included certain specific information about identified individuals engaging or planning to engage in criminal activity. The phone number from which the call was made was not identified by the Applicant.
The risk in disclosing whether such a phone call can be identified as having been made by the Applicant, or whether records of this phone call are held by the Respondent at all, is that doing so could reveal the identity of a confidential informant. The Applicant believes that only he had the information which he claims to have provided to Crime Stoppers: I provided the agency with the exact information that I provided to the operator that answered my call late 2013. It could not be anyone else… I provided to the operator that took my call the exact names and date of birth of the head of the gang, and other exact information which I only knew as it concerned me and the gang that was providing the information about. No one else would have known that information.
However the real possibility is that there may be other individuals, including other confidential informants, who provided similar information to Crime Stoppers. Or the information may not have come from the Applicant as he claims, or there may not have been any information provided by anyone. Any disclosure would have the effect identified by the Respondent - that confirming or denying the existence of a record of such a call would effectivity confirm how much information the Respondent's officers know or knew about the subject matter of the call, and may confirm the existence of an informant, whether the Applicant or another person or persons, or both.
In my view, this is exactly the type of proceedings anticipated by the Appeal Panel in Barrett when they stated at [87]: 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.
The content of the access application, read in conjunction with evidence from the Respondent about the nature and use of the Crime Stoppers program in law enforcement and the prevention, detection and investigation of criminal activity, is enough to demonstrate in these proceedings that the Respondent's decision to refuse to confirm or deny that it held the information sought in the access application is justified.

Conclusion

The correct and preferable decision is therefore for the Tribunal to affirm the Respondent's Supplementary Decision of 11 October 2021.
The Tribunal notes that the evidence and submissions provided by the Respondent in the confidential hearing on 16 December 2021 were not necessary to be relied on in reaching this decision. The orders made for confidentiality of the transcript and recording of the confidential hearing pursuant to s 64(1)(b) of the CAT Act continue. The orders made pursuant to s 64(1)(c) and (d) of the CAT Act in relation to the evidence and submissions provided to the Tribunal in the confidential hearing continue until those documents are returned to the Respondent.

Orders 1. The Respondent's decision of 11 October 2021 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: 13 May 2022

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Judgment (16 paragraphs)

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