DYD v Commissioner of Police [2022] NSWCATAD 277 | Case summary | Zoe

NSWNSWCATAD

DYD v Commissioner of Police

[2022] NSWCATAD 277

NCAT Administrative and Equal Opportunity|2022-08-19

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2022-08-19

Source

Original judgment source is linked above.

Judgment (9 paragraphs)

[1]

The Applicant Reconsideration Submissions

In addition to the public interest considerations in favour of disclosure noted in [18] above, in the Applicant Reconsideration Submissions the Applicant submitted, in summary and most relevantly, that: 1. As regards the Appeal Decision reference that there was no evidence that any of the Relevant Information contained 'any findings, adverse or otherwise' about DYD: 1. paragraphs 1 and 2 of the Applicant's 30 June Application noted that the information sought (i.e. the Relevant Information) pertains to how the Respondent dealt with the matters that relate to the Applicant personally as the Applicant was not satisfied with the Respondent's responses. In determining and responding the Respondent must have made 'findings, adverse or otherwise' on or about the Applicant including that the Applicant's complaints 'could not be sustained' which finding is on its face adverse to the Applicant. The Applicant also specifically noted comments from the documents released by and/or put in evidence by the Respondent such as "in common speak, [the Applicant] is a frequent flyer, and a well connected one at that" and "this does not need a response. Can you save this email stream to AANS?" Again, these are clearly findings (adverse or otherwise) in relation to the Applicant; 2. paragraph 4 of the 30 June Application noted that information in the COPS events pertaining to the Applicant's children with it being possible that the Respondent's personnel may have been considering those records because they are 'findings, adverse or otherwise' as to the Applicant; 3. in paragraph 5 of the 30 June information pertaining to the Respondent's different treatment of the Applicant once the Respondent had issued an ADVO against the Applicant. After the ADVO the position and approach of the Respondent changed with respect to the Applicant's access applications and therefore the implication is that this later approach to the Applicant is based on 'findings, adverse or otherwise' by the Respondent as to the Applicant; and 4. there are COPS events records of the Respondent that contain adverse and/or negative information on the Applicant such as that set out in paragraphs 234 and 238 of the Applicant's Affidavit which reflect the Respondent having 'findings, adverse or otherwise' in relation to the Applicant, especially as regards the Applicant's mental state. 1. As set out in the Applicant's submissions in the Original Decision, one motive for the Access Application by the Applicant is to obtain information to consider possible misconduct of the Respondent and the bona fides of a resultant potential malicious prosecution action by the Applicant against the Respondent for the issue of the ADVO. The Respondent has continually resisted providing information sought presumably relating to the Respondent having 'findings, adverse or otherwise' on the Applicant and thus are potentially evidence of that misconduct and in relation to that potential malicious prosecution action and see paragraph [53] of Commissioner of Police, NSW Police Force v Barrett No. 2 [2016] NSWCATAP 86.

[3]

The Respondent Reconsideration Submissions

The Respondent made additional submissions as to the public interest considerations against disclosure in the Respondent Reconsideration Submissions, in summary and most relevantly, that: 1. The Respondent repeats its submissions made in the Original Decision that the public interest considerations against disclosure in Items 1(d), 1(f), 1(h) and 3(a) of the Table apply to the Relevant Information (including a number of (i) annexure title pages with no information on them other than the annexure number and title and, in some cases, a brief description of what types of documents the annexure contains but without reproducing any content from those documents and (ii) other documents previously served on the Applicant as part of the ADVO process) and that such should be accorded significant weight because the disclosure of the Relevant Information could reasonably be expected to: 1. Prejudice the effectiveness of the NSW Police Force's (NSWPF's) complaint handling and investigations by: 1. dissuading members of the public from reporting and police officers from participating fully and frankly in future investigations or otherwise cooperating to facilitate the investigator having the best information available because the information they thought was provided in confidence is released under the GIPA Act; and 2. revealing how a complaint is investigated, including what information is taken into account and considered and the deliberative process involved, which may enable police officers under investigation in the future to take steps to avoid detection or enable persons to create malicious evidence. 1. Prejudice the effectiveness of NSWPF's law enforcement functions by: 1. dissuading members of the public from reporting issues to police or otherwise cooperating with police investigations because the information they thought was provided in confidence can be released under the GIPA Act; 2. revealing how the NSWPF performs its investigative and law enforcement purposes, including the deliberative processes that follow; 3. revealing to the public, and enabling them to draw inferences about, "the police resources available at a particular PAC, which may enable them to plan"; and 4. reveal the personal information of individuals who have not been consulted. 1. Consistent with the Tribunal's decision in Klaric v Commissioner of Police [2020] NSWCATAD 47 at [101] - [102] and Pemberton v Commissioner of Police [2020] NSWCATAD 135, having regard to the evidence of Chief Inspector Holgate and Detective Sergeant Ferns, the Tribunal should accord the considerations noted against disclosure significant weight for all of the Relevant Information given the importance of NSWPF's law enforcement and complaint handling functions. 2. The Respondent also repeated its submissions that the public interest consideration against disclosure in Item 3(g) of the Table applies to certain of the redacted Relevant Information contained in pages 146 and 149. In particular, and even though in the Original Decision the redacted Relevant Information in question on page 149 which the Respondent submitted Item 3(g) of the Table applied to was not 'released' but 'withheld', the Respondent submits that the Tribunal should be satisfied that the disclosure of the Relevant Information in question in pages 146 and 149 to the Applicant (and therefore effectively to the world) would not be in the best interests of the child when regard is had to the effect that the disclosure would have on (i) the ability of a child to feel safe and be candid in interviews with police officers if the relationship of competence with police is jeopardised and (ii) the specific circumstances referred to in the confidential hearing on 17 February 2020. 3. The Respondent submits that, despite s 9(1) GIPA Act and the Original Decision in which the Tribunal held that the Relevant Information on page 149 which it says is subject to Item 3(g) of the Table be 'withheld', the Tribunal does not need specific evidence from the Respondent as to 'what the child would or would not do if the Relevant Information were released' to be satisfied that significant weight must be accorded to Item 3(g) of the Table as it applies to each of the Relevant Information in question contained in pages 146 and 149: see Transport for NSW v Searle [2018] NSWCATAP 93 at [61] - [63]. 4. The Respondent submits that the public interest considerations against disclosure that it has identified as applicable to the Relevant Information (including that already withheld in the Original Decision and that referred to by me in [22(1)] above) strongly outweigh the public interest considerations in favour of disclosure. Accordingly, the Respondent submits that all of the Relevant Information is subject to an overriding public interest against disclosure for the purposes of s 13 GIPA Act.

[4]

Consideration

In the Appeal Decision the Appeal Panel noted: [56] Included at the end of that list is cl 3(g). However, the Tribunal did not mention that clause against p 146 of Amended Schedule B. The Tribunal did list cl 3(g) against pp 148-150. The reasons do not indicate why the Tribunal rejected cl 3(g) as a relevant consideration against disclosure of the information at p 146 of Amended Schedule B. … [59] The Tribunal did not "as a matter of substance" have regard to the representations put by the Commissioner that cl 3(g) was relevant to the information at p 146 of Amended Schedule B (Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [45]). This error is an additional basis to ground 3, for setting aside that part of the decision in relation to the information at p 146 of Amended Schedule B. … [60] This ground relates to the Tribunal's decision to disclose the information at pp 148 - 150 of Amended Schedule B. At [68], the Tribunal considered the significance of cl 3(g): "Without any compelling evidence presented to the Tribunal as to why the disclosure of the information is not in the best interests of this child, in circumstances where the Applicant parent is not the alleged abuser, I have given little weight to Item 3 (g) of the Table in s14 GIPA Act as a public interest consideration against disclosure in respect of the redacted information on pages 148-150, as noted in the table in paragraph 80 below." [61] This statement reflects an unduly narrow interpretation of the interests of the child. While DYD was not the alleged abuser, 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]. [62] This error is an additional basis to ground 3, for setting aside that part of the decision in relation to the information at pp 148 - 150 of Amended Schedule B.
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.
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. Also, on a reconsideration in the shoes of the decision maker I was 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 interest considerations for disclosure I am satisfied the other (i.e. applicable) public interest considerations against disclosure do not outweigh the public interest considerations in favour of the disclosure of the Relevant Information.
As noted in the Appeal Decision, paragraphs [80] and [81] of the Original Decision did not specify the identified public interest considerations in favour of disclosure relevant for each of the Relevant Information in those tables. That is, I did not specifically indicate which public interest considerations in favour of disclosure I had considered when undertaking the balancing exercise for each of the Relevant Information in those tables set out in [27] and [28] below. I have remedied that now, as directed by the Appeal Panel, in the revised tables in [27] and [28] which are limited to the Relevant Information which was the subject of the Appeal Decision.
Amended Schedule B: Documents for which access has been granted in part and which remain in contention: The page numbers listed below in column 1 are the Respondent's page numbers of the pages containing redacted information as listed in the Amended Schedule B that remain in contention after the Appeal Decision (i.e. the Relevant Information). Next to each of the Respondent's relevant page numbers in column 1, in column 2 I note the applicable public interest considerations against disclosure submitted by the Respondent as applicable and, as required by the Appeal Decision, in column 3 I note the public interest considerations in favour of disclosure that I considered in the balancing exercise. In column 4 of the table below I note my findings from the Original Decision and, finally, in column 5 I note any new findings or confirm my previous findings as regards the redacted information on that page (i.e. the Relevant Information) based on the prior evidence and submissions in the Original Decision, taking into account the directions to the Tribunal of the Appeal Panel in the Appeal Decision, the subsequent further submissions of the parties and my reconsideration and the rebalancing of the noted public interest considerations for and against disclosure of the Relevant Information. Page no. Submitted s14 Table public interest grounds against disclosure Public interest considerations in favour of disclosure (refer to [18] for the abbreviations) Previous findings New findings 42 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 2, 3, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 46 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 47 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 3, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 48 1 (f), (h) s 9 GIPA Act, PICFDs 1, 2, 4, 5 and 6 Release without the redaction to the paragraph under the heading "Holdings reviewed/information gathered…" otherwise Withhold. For the information to be released the submitted effects were not sufficiently established as reasonably expected. For the information to be withheld the effects were reasonably established and, on balance, the public interest considerations against disclosure outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed. 138 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 3, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 139 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 3, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 140 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 3, 4, 5, 6 and 8 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 141 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 3, 4, 5, 6 and 8 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 3, 4, 5, 6 and 8 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 142 143 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 3, 4, 5, 6 and 8 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 144 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 3, 4, 5, 6 and 8 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 145 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 3, 4, 5, 6 and 8 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Original Decision (i.e. previous finding in column 4) confirmed. 146 1 (d), (f), (h), 3 (a), (g) s 9 GIPA Act, PICFDs 1, 2, 3, 4, 5, 6 and 8 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Release: In addition to the previous findings as regards Items 1(d), (f), (h) and 3(a) which are confirmed, the submitted effects of Item 3(g) were not sufficiently established as reasonably expected in the circumstances and thus do not override the right granted to the Applicant in s 9(1) GIPA Act and the public interest considerations in favour of disclosure. 148 1 (d), (f), (h), 3 (a), (g) s 9 GIPA Act, PICFDs 1, 3, 4, 5, 6 and 8 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. Release: In addition to the previous findings as regards Items 1(d), (f), (h) and 3(a) which are confirmed, the submitted effects of Item 3(g) were not sufficiently established as reasonably expected in the circumstances and thus do not override the right granted to the Applicant in s 9(1) GIPA Act and the public interest considerations in favour of disclosure. 149 1 (d), (f), (h), 3 (a), (g) s 9 GIPA Act, PICFDs 1, 3, 4, 5, 6 and 8 Withhold the redaction to the last entry for "21/09/18" (the third entry from the bottom of the page), otherwise Release. For the 'release' information the public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. For the 'withhold' information the submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established. Original Decision (i.e. previous finding in column 4) confirmed (and note that the Relevant Information for which the Respondent submitted Item 3(g) of the Table applied was, and is still, to be 'withheld'). 324 1 (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 3, 4, 5, 6 and 8 Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances. Original Decision (i.e. previous finding in column 4) confirmed. 1 (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 3, 4, 5, 6 and 8 Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances. Original Decision (i.e. previous finding in column 4) confirmed. 325

[5]

Amended Schedule C: Documents (i.e. pages) for which access has been refused in full and which remain in contention: The page numbers listed below in column 1 are the Respondent's page numbers of the pages listed in the Amended Schedule C (i.e. being the information and records to which access was 'refused in full') that remain in contention after the Appeal Decision (i.e. the Relevant Information). Next to each of the Respondent's relevant page numbers listed in column 1, in column 2 I note the Respondent's submitted public interest considerations against disclosure of the Relevant Information and, as required by the Appeal Decision, in column 3 I note the public interest considerations in favour of disclosure that I considered in the balancing exercise. In column 4 I note my findings in the Original Decision and, finally, in column 5 I note any new findings or confirm my previous findings as regards the Relevant Information based on the prior evidence and submissions in the Original Decision, taking into account the directions to the Tribunal of the Appeal Panel in the Appeal Decision, the subsequent further submissions of the parties and my reconsideration and rebalancing of the noted public interest considerations for and against disclosure of the Relevant Information. Submitted s14 Table public interest grounds against disclosure Public interest considerations in favour of disclosure (refer to [18] for the abbreviations) Previous findings New findings Page no. 30 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 2, 3, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed. 158 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 4, 5, and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances and thus do not override the right granted to the Applicant in s 9(1) GIPA Act and the public interest considerations in favour of disclosure. 159 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances and thus do not override the right granted to the Applicant in s 9(1) GIPA Act and the public interest considerations in favour of disclosure. 162 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances and thus do not override the right granted to the Applicant in s 9(1) GIPA Act and the public interest considerations in favour of disclosure. 165 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances and thus do not override the right granted to the Applicant in s 9(1) GIPA Act and the public interest considerations in favour of disclosure. 183 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances and thus do not override the right granted to the Applicant in s 9(1) GIPA Act and the public interest considerations in favour of disclosure.

[6]

1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances and thus do not override the right granted to the Applicant in s 9(1) GIPA Act and the public interest considerations in favour of disclosure. 264 272 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances and thus do not override the right granted to the Applicant in s 9(1) GIPA Act and the public interest considerations in favour of disclosure. 295 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed. 296 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed. 297 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 3, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed. 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed. 298 299 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed. 300 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed. 301 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed. 302 1 (d), (f), (h), 3 (a) s 9 GIPA Act, PICFDs 1, 2, 4, 5 and 6 Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose. Original Decision (i.e. previous finding in column 4) confirmed.

Parties

Applicant/Plaintiff:

DYD

Respondent/Defendant:

Commissioner of Police

Legislation Cited (1)

Civil and Administrative Tribunal Act 2013(NSW)

Cases Cited (16)

REASONS FOR DECISION

On 1 May 2020 I made the following relevant orders, among others not relevant to these Reasons for Decision, in my decision in DYD v Commissioner of Police [2020] NSWCATAD 119 (Original Decision): (3) The Commissioner of Police must release the information which appears beside the word 'Release' in column 3 of the tables in paragraphs 80 and 81 of the decision in this matter within 30 days of the date of this order. (4) The decision dated 17 October 2019 of the Commissioner of Police is otherwise affirmed.
On 30 October 2020 the Appeal Panel in Commissioner of Police v DYD [2020] NSWCATAP 224 (Appeal Decision) ordered, most relevantly, that: (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.
On 4 January 2021 I made the following directions in these proceedings (4 January Orders): (1) Within 21 days of the date of these directions, each of the parties may submit written submissions of up to 5 pages on the matters which the Appeal Panel required the Tribunal to reconsider. That is, the public interest considerations for and against the Tribunal's decision to provide access to the information referred to as 'release' in column 3 of the tables in paragraphs [80] and [81] of the Tribunal's Original Decision. (2) In particular, should a party submit written submissions in accordance with (1) above, it would be helpful to the Tribunal if those submissions could, without limitation, address the matters discussed by the Appeal Panel in paragraph [48] to [51], [56] and [59] to [62] of the Appeal Panel decision Commissioner of Police v DYD [2020] NSWCATAP 224. (3) Parties submissions should also, with references to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), provide submissions on whether the Tribunal could dispense with the hearing if satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions or other documents or material.
The parties submitted the following written submissions: 1. the Respondent's "Submissions in relation to matters the Appeal Panel has directed the Tribunal to reconsider" dated 25 January 2021 (Respondent Reconsideration Submissions); and 2. the Applicant's submissions dated 25 January 2021 which the Applicant states were submitted on that date but which the Tribunal's records show were received by the Registry by email on 26 April 2021 (Applicant Reconsideration Submissions).
These Reasons for Decision should be read with and, other than where terms are expressly abbreviated in these Reasons for Decision, use the same abbreviations as the Original Decision.
My considerations and decision in these Reasons for Decision address the following issues raised by/in (a) the Appeal Decision which directed the Tribunal to reconsider the Tribunal's decision in relation to Order 3 of the Original Decision (Matters For Reconsideration) and (b) the 4 January Orders and are, in summary: 1. whether an order should be made dispensing with a hearing for the Matters For Reconsideration; 2. what are the relevant public interest considerations in favour of disclosure for each of the information referred to as "Release" in column 3 of the tables in paragraphs [80] and [81] of the Original Decision (Relevant Information) that the Tribunal considered in the Original Decision (and reconsiders in these Reasons for Decision) to disclose (or "Release") that Relevant Information, which considerations are to be reconsidered and rebalanced as against the public interest considerations against disclosure as part of the consideration of the Matters For Consideration; 3. the application and consideration of Item 3(g) of the Table attached to s 14 of the GIPA Act (Table) as a public interest consideration against disclosure (including the Respondent's submissions), the public interest considerations in favour of disclosure as regards this (and other) public interest considerations against the disclosure of the Relevant Information contained in pages 146 and 149 of the Amended Schedule B (see the table at paragraph [80] of the Original Decision); and 4. based on a reconsideration and rebalancing of the noted public interest considerations for and against disclosure of the Relevant Information a reconsideration of my determinations as regards such in the Original Decision as to whether or not to disclose (i.e. "Release") each of the Relevant Information.

Whether the Relevant Information should be released

When remitting the Matters for Reconsideration to the Tribunal the Appeal Panel noted in the Appeal Decision, most relevantly, that: [49] There was no evidence that any of the information sought contained any findings, adverse or otherwise, about DYD. Nevertheless, the Tribunal impliedly made a finding to that effect because it took that consideration into account. Making, or impliedly making, a finding of fact, for which there is no evidence, is an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [90] - [91]. [50] At [80] of the decision, the Tribunal set out a table of its findings. The Tribunal identified each of the public interest considerations against disclosure for each item of information. The Tribunal did not separately specify the public interest considerations in favour of disclosure for each item of information in amended Schedule B and Schedule C. Consequently, a fair reading of the Tribunal's reasons indicates that the Tribunal took that consideration into account for each item of information. It follows that in every instance where the Tribunal took into account DYD's right to know about findings about him, as a public interest consideration in favour of disclosure, the Tribunal has taken into account a consideration for which there was no evidentiary basis. As the decision as to whether there is an overriding public interest against disclosure of information involves a balancing exercise (GIPA Act, s 13), the error could have affected the outcome in each instance. … [59] The Tribunal did not "as a matter of substance" have regard to the representations put by the Commissioner that cl 3(g) was relevant to the information at p 146 of Amended Schedule B (Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [45]). This error is an additional basis to ground 3, for setting aside that part of the decision in relation to the information at p 146 of Amended Schedule B. [60] This ground relates to the Tribunal's decision to disclose the information at pp 148 - 150 of Amended Schedule B. At [68], the Tribunal considered the significance of cl 3(g): "Without any compelling evidence presented to the Tribunal as to why the disclosure of the information is not in the best interests of this child, in circumstances where the Applicant parent is not the alleged abuser, I have given little weight to Item 3 (g) of the Table in s14 GIPA Act as a public interest consideration against disclosure in respect of the redacted information on pages 148-150, as noted in the table in paragraph 80 below." [61] This statement reflects an unduly narrow interpretation of the interests of the child. While DYD was not the alleged abuser, 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].

The Applicable Law

The applicable law is set out in paragraphs [10] to [18] of the Original Decision. In addition, I also note paragraphs [51] to [54] and [69] of Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 (Forbidden Food) and the following from the Appeal Panel decision in Smolenski v Commissioner of Police [2015] NSWCATAP 235 (Smolenski): [20] One of the GIPA Act's core provisions (s 9(1) GIPA Act) is 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 (Access Applications): s 9(1). These words are subject to the following limitation 'unless there is an overriding public interest against disclosure of the information'. The agency carries the burden of establishing that the decision is justified': s 105. There are exceptions to this rule, but none apply to this case. So the fundamental task of the agency and the Tribunal on review is to determine whether the right to be provided with access to any information requested is qualified to the extent that access should be refused due to an overriding public interest against disclosure of the information. (emphasis added) [21] Such an overriding public interest against disclosure. … arises 'if (and only if) there are public interest considerations against disclosure' … 'and, on balance, those considerations outweigh the public interest considerations in favour of disclosure'. … (s 13). [22] The public interest considerations against disclosure are limited by the GIPA Act, while the public interest considerations in favour of disclosure are not limited. Public interest considerations against disclosure are confined to those set out in the Table to s 14. … [23] The GIPA Act provides that there is a general public interest in favour of the disclosure of government information (s 12(1)). That there is no limitation on the public interest considerations that may be taken into account in favour of disclosure is spelt out by s 12(2). …
I also note the following from Forbidden Foods, paragraph [52] which expands on paragraph [20] of Smolenski and the burden or onus on the Respondent of establishing that its decision is justified and, at paragraph [69], the Tribunal's task in considering the effect of disclosing the Relevant Information: [52] The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means, as explained in Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20], that it is the RMB's obligation to identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and it is then the RMB's burden, pursuant to s 105(1) of the GIPA Act, to justify its decision through submissions and evidence. … [69] As discussed in Taylor at [20], confirmed on appeal in Destination NSW V Taylor [2019] NSWCATAP 123 at [69], the task of the Tribunal is to consider the effect of disclosing each particular piece of information contained within a document, and not the document as a whole.

The public interest considerations in favour of disclosure

The Original Decision detailed the following public interest considerations in favour of disclosure of the Relevant Information: 1. At paragraph [34] of the Original Decision I noted the Applicant's submissions as regards the public interest considerations in favour of disclosure under s 12(2) GIPA Act as follows: (a) disclosure of information that could reasonably be expected to promote open discussion of public affairs, enhance Government accountability will contribute to positive and informed debate on issues of public importance in relation to: • whether to bring a civil or criminal action against a person • receiving and assessing complaints • receiving and assessing GIPA access applications • communicating with the public • information that may be applicable to a potential malicious prosecution and/or defamation action • information that is utilised in Family Court proceedings involving the Applicant [(PICFD 1)] (d) information that is personal information of the person to whom it is to be disclosed, namely the disclosure would provide the Applicant's own personal information to him for each of: • the Interim ADVO • his complaint(s) to the Respondent and their dealing with it • personnel of the Respondent accessing his information that is held and/or controlled by the Respondent • the views and beliefs of the Respondent and its personnel on the Applicant [(PICFD 2)] (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 negligence, improper or unlawful conduct in relation to: • the Interim AVDO • the Respondent's receiving and considering complaints • personnel of the Respondent accessing the information on the Applicant that is held and/or controlled by the Respondent • a malicious prosecution and/or defamation action by the Applicant against the Respondent • information that may have probative value on purpose in the Family Court proceedings involving the Applicant [(PICFD 3)] 1. In paragraph [35] of the Original Decision I noted that the Applicant's Affidavit provided unchallenged evidence of the history of the Applicant's interactions with the Respondent and thus the Applicant's motives for seeking the information requested in the 30 June Application [(PICFD 4)]. 2. In paragraph [36] of the Original Decision I noted the Respondent's submissions as to the public interest considerations in favour of disclosure of the information that it had considered in relation to its decision on the 30 June Application, being the following: • The Statutory presumption in favour of the disclosure of Government information [(PICFD 5)] • The general right of the public to have access to government information held by the agencies [(PICFD 6)] • The information is personal information of the person to whom it is to be disclosed [(i.e. PICFD 2)] • You reported a number of matters involving your children to Police and would be aware of the circumstances. You have also corresponded with various Police Officers relating to the matters and have been provided with some information through a number of avenues including subpoenas, previous GIPA applications and written correspondence with the Police Command and/or other members of the NSW Police Force (NSWPF). [(i.e. PICFD 4)] 1. In paragraph [64] of the Original Decision I noted the additional public interest considerations in favour of disclosure (in addition to those noted in (1), (2) and (3) above) that I thought may also be relevant: (1) an individual has a right to know about adverse findings against him or her to check the accuracy of those findings: Department of Community Services v Latham [2000] NSWADTAP 21 [(PICFD 7)]; and (2) the public interest in enhancing the transparency of investigations of complaints under Part 8A of the Police Act 1990: Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 at [118-119] [(PICFD 8)].

The Respondent Reconsideration Submissions

As regards the public interest considerations in favour of disclosing the Relevant Information the Respondent submitted, in summary and most relevantly, that these were: 1. The general public interest in favour of disclosure of government information (i.e. PICFDs 5 and 6). 2. Insofar as the Relevant Information is the personal information of the Applicant, the Applicant should have access to [their] own personal information (i.e. PICFD 2). 3. The Applicant's motive for making the original application for access (i.e. PICFD 4). 4. Enhancing the transparency of the investigations of complaints under the Police Act 1990 (i.e. PICFD 8), which should be given little weight having regard to the extent of the information that had already been released to the Applicant such that the release of the Relevant Information could not meaningfully enhance the transparency of the complaint handling process and noting that there are also other available statutory accountability mechanisms to do so. 5. The Respondent does not accept that all of the public interest considerations in favour of disclosure identified by the Applicant and set out in the Original Decision at paragraph [34] (see [18(1)] above) apply to the Relevant Information and noted: "Even if the disclosure of the [Relevant Information] would assist the applicant in determining whether to commence 'malicious prosecution and/or defamation' proceedings against the Respondent or in [the Applicant's] Family Court proceedings, advancing a private right to commence or further civil proceedings does not in itself constitute a public interest for the purposes of s 12 of the GIPA Act: see Rae v Commissioner of Police [2020] NSWCATAD 189 at [85] - [86]." 1. In the Appeal Decision the Appeal Panel determined that there was "no evidence that any of the information sought contained any findings, adverse or otherwise, about DYD". Thus, the public interest consideration that an individual has a right to know about adverse findings against him or her to check the accuracy of those findings (i.e. PICFD 7) is not enlivened and should not be taken into account in the balancing of whether the Relevant Information is subject to an overriding public interest against disclosure. 2. All of the public interest considerations in favour of disclosure should be given little, if any, weight in the circumstances of the case.

(2010) 241 CLR 390

Cited By (3)

Commissioner of Police, NSW Police Force v DYD

DYD v Commissioner of Police, NSW Police Force