DYD v Commissioner of Police, NSW Police Force

Background

1. On 30 June 2019 the Applicant made an application pursuant to s 41 GIPA Act (which was subsequently amended on 2 July 2019 and 24 September 2019) to access certain government information held by the Respondent (June 2019 Application) responsive to, most relevantly for these proceedings, the following (Items 4(b) - (f) of the June 2019 Application): " … 4. For each of myself, my daughter [NOT FOR PUBLICATION], and my son, [NOT FOR PUBLICATION], in relation to COPS information that pertains to each of us over the last three (3) years: (a) … (b) Date and time each COPS Event was updated, modified, amended, changed, altered, edited or deleted (Modification); (c) Details of the person who undertook each Modification (including their name, job title, role, location and branch of the NSW Police force); (d) Reason(s) for each Modification (e) Information the Modification pertains to; and (f) Date and time each COPS Event has been viewed and details of the person who viewed it (including their name, job title, role, location and branch of the NSW Police force); …"
2. On 14 August 2019 the Applicant lodged an application with the Tribunal seeking a review of the deemed decision of the Respondent relating to the June 2019 Application under s 63 (1) GIPA Act in the Respondent's "Notice of Decision - Deemed Refusal of Application" dated 30 July 2019.
3. On 24 September 2019 the Tribunal ordered, under s 108(1) GIPA Act, that the Respondent decide the June 2019 Application and provide the Applicant and the Tribunal with a copy of its decision. On 17 October 2019 the Respondent notified the Applicant of its decision on the June 2019 Application to (October 2019 Decision) and provided such to the Tribunal.
4. In the October 2019 Decision the Respondent determined to release some of the information that was identified as within the scope of the June 2019 Application and to withhold other information in part or in full. On 12 November 2019 the Tribunal noted that the October 2019 Decision was the Respondent's decision which was the subject of the review by the Tribunal.
5. The October 2019 Decision was the subject of a hearing on 17 February 2020 and the subsequent Tribunal decision dated 1 May 2020 (i.e. the DYD Original Decision) and Appeal Panel decision dated 30 October 2020 (i.e. the DYD Appeal Decision) which, among other things, confirmed Orders 1 and 2 of the DYD Original Decision as follows: "(1) That part of the decision dated 17 October 2019 of the Commissioner of Police which relates to Items 4(b) to (f) of the application made by DYD under the Government Information (Public Access) Act 2019 [i.e. Items 4(b) - (f) of the June 2019 Application] is remitted to the Commissioner of Police for a further decision to be made on the basis that the information in issue is subject to the Government Information (Public Access) Act 2019 and that clauses 1(f), 1(h) and 2(b) of the table in s14 of the Government Information (Public Access) Act 2019 are relevant to the decision. (2) The Commissioner of Police must make the decision under Order 1 and give notice of his decision to DYD within 30 days of the date of this order."
6. The Respondent states that it prepared a notice of its decision as regards Items 4(b) - (f) of the June 2019 Application on 30 November 2020 (November 2020 Decision) as required by the Orders noted in [7] above . The Applicant states that they did not become aware of the November 2020 Decision (i.e. did not receive it) until 6 June 2022. The November 2020 Decision was filed with the Tribunal on 1 November 2022. The November 2020 Decision was, pursuant to the Tribunal's Order 2 of 22 August 2022, supplemented by a further decision of the Respondent on Items 4(b) - (f) of the June 2019 dated 30 September 2022 (September 2022 Decision). The September 2022 Decision together with the November 2020 Decision are collectively referred to as the Decisions.
7. Pursuant to the Tribunal Orders dated 7 and 8 June 2022 and 22 August 2022 the Applicant indicated their wish to continue these administrative review proceedings with respect to the Decisions (2023 Administrative Review of the Decisions). The subject of the 16 January 2023 hearing, the current review of the Tribunal and these Reasons for Decision is the 2023 Administrative Review of the Decisions.
8. It is the Decisions which are the subject of the 2023 Administrative Review of the Decisions in these proceedings. All other matters in respect of the June 2019 Application have already been determined in the DYD Original Decision, the DYD Appeal Decision and the further decision of the Tribunal on the matters remitted to the Tribunal by the Appeal Panel in the DYD Appeal Decision, which the Tribunal understands may currently be subject to an appeal by the Respondent. However, in submissions, the Applicant sought to raise some additional issues (in relation to other items in the June 2019 Application) based on recent correspondence between the parties (Other Matters).
9. The information in contention as regards Items 4(b) - (f) of the June 2019 Application, as at the date of the Tribunal hearing on 16 January 2023 (January 2023 Hearing), is the information in the documents listed in (i) the "Schedule of Documents" attached to the November 2020 Decision, (ii) the "Schedule of Documents" attached to the September 2022 Decision and (iii) the information noted as not held by the Respondent in the Decisions (when read together and cumulatively).
10. The documents containing the information relevant to items (i) and (ii) in [11] above are listed in [58] and [59] respectively (Relevant Information). The information relevant to item (iii) in [11] above for the Decisions (cumulatively) not held by the Respondent is (Information Not Held): 1. some information in relation to Item 4(d) of the June 2019 Application, not all Modifications have a reason for the Modification listed; 2. all information in relation to Item 4 (e) of the June 2019 Application; and 3. information in relation to Item 4(f) of the June 2019 Application, the details of one person who accessed a COPS Event.

Jurisdiction

1. The Decisions under review are reviewable decisions in accordance with s 80 (d) GIPA Act. The Tribunal obtains its jurisdiction to review the Decisions under s 100 GIPA Act.

Applicable law and relevant principles and approach

1. The object of the GIPA Act, stated in s 3 (1) GIPA Act includes to: "open government information [up] to the public by: (a) … (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. The intention of Parliament stated in s 3 (2) GIPA Act is: "(a) that this Act be interpreted and applied so as to further the object of the 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."
3. The GIPA Act provides that there is a presumption in favour of disclosure of government information, unless there is an overriding public interest against such disclosure (s 5 GIPA Act). The person who makes an application to access government information (i.e. the Applicant in this case) has a legally enforceable right to be provided with such access, unless there is an overriding public interest against disclosure of the information (s 9 GIPA Act).
4. Agency decisions (i.e. the Decisions) must be made in conformity with s 58 GIPA Act and a notice of a refusal decision and reasons are to be (and, in this case, the Decisions were) given under s 61 GIPA Act.
5. The Respondent can either delete or withhold information in full or in part (s 74 GIPA Act) on the basis that the deleted or withheld information is not relevant, is subject to either a conclusive presumption of an overriding public interest against disclosure, an overriding public interest against disclosure on the basis of one or more of the Items listed in the Table in s 14 GIPA Act or because the Respondent is otherwise permitted under a general administrative provision of the GIPA Act not to disclose the information sought.
6. Both parties agree that none of the Relevant Information is subject to any conclusive presumption under s 14 (1) and Schedule 1 GIPA Act of an overriding public interest against disclosure. The Respondent therefore, in these proceedings, has the burden of establishing to the Tribunal that the Decisions to withhold the information are justified (s 105 (1) GIPA Act): Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 (Barrett 2015) at [40].
7. As regards the applicable law, I note the following paragraphs in DYD v Commissioner of Police [2022] NSWCATAD 277 in which the Tribunal addressed the matters remitted to it by the Appeal Panel in the DYD Appeal Decision: [11] 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). … [12] 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. … [15] Section 15 GIPA Act, as noted at paragraph [24] of Smolenksi and paragraph [50] of Forbidden Foods, further provides that a determination as to the balance to be struck is to be made taking account of certain 'principles' as follows: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. [16] Paragraphs [19] to [28] of the Original Decision set out the approach of the Tribunal in GIPA Act matters. In addition, I note the following as to approach from Smolenski: [25] An application for review of a decision made under the GIPA Act belongs to the administrative review jurisdiction of the Tribunal. The Tribunal's task in dealing with an administrative review application is to make the 'correct and preferable decision' having regard to all relevant material then before it: Administrative Decisions Review Act 1997, s 63. … [17] In a GIPA Act case the Tribunal is involved in a weighing and balancing exercise with the ultimate question being whether there is an overriding public interest against disclosure. The Tribunal's review function and the applicable provisions of the GIPA Act thus have an inherently discretionary character (see the rest of paragraph [25] Smolenski not quoted above).
8. The Tribunal is required to determine what the correct and preferable decision(s) is(are) having regard to the material before it, including any relevant factual material and applicable written or unwritten law: s 63 (1) Administrative Decisions Review Act 1997 (ADR Act): (see Barrett 2015) at [21]. The Tribunal makes its own decision in place of the Decisions, without any presumption that the Decisions are correct.
9. Contrary to the Applicant's submissions, the Tribunal is not constrained to have regard only to the material before the Respondent when making the Decisions but may have regard to any relevant material before the Tribunal at the time of the Tribunal's review: Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCAT 257 at [45] and O'Grady v Sutherland Shine Council [2020] NSWCATAD 50 at [17].
10. Where there is no conclusive presumption of an overriding public interest against disclosure (i.e. as per s 14 (1) and Schedule 1 GIPA Act), as is the case in these proceedings, the process for deciding whether to grant access to the Relevant Information (in part or in full) is to identify the applicable public interest factors in favour of granting access, then to identify the applicable public interest factors against disclosure relied on by the Respondent which, in the circumstances of these proceedings, can only be from those items set out in the Table in s 14 GIPA Act: Tedder v Commissioner of Police, NSW Police Force [2017] NSWCATAD 226 at [20]. A determination must then be made as to where the balance lies.
11. The GIPA Act states, as a factor for consideration in the balancing exercise, the general public interest in favour of the disclosure of government information (s12 GIPA Act). Also, some non-exhaustive examples of other public interest considerations in favour of disclosure are referred to in the notes to s 12 (2) GIPA Act. In Leydon v Commissioner of Police [2019] NSWCATAD 267 (Leydon) at [47] the Tribunal notes that these notes/examples are regularly relied on by parties in GIPA proceedings and s 12 (2) provides that "there is no limit as to what disclosure considerations can be taken into account".
12. Under s 55 of the GIPA Act the personal factors of the Applicant, including identity and motives can also be taken into account in the context of considering whether there is an overriding public interest against the disclosure of information, as facts both in favour of and, in certain cases, against providing the Applicant with access to information.
13. In this case the Applicant's personal factors can weigh against providing access to the information, to the extent they are relevant in relation to Item 2 (b) of the Table in s 14 GIPA Act which has been submitted by the Respondent as one of the applicable public interest considerations against disclosure of certain of the information (see column 2 the table in paragraphs [58] and column 3 of the table in [59] below).
14. As the Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 (Camilleri) stated at [24-27], the Tribunal must first assess (before balancing the public considerations for and against disclosure) whether the effect of the claimed public interest considerations against disclosure under the relevant (i.e. relied on by the Respondent) Items in the Table in s 14 GIPA Act are established at a systemic level and then ask whether the disclosure of the Relevant Information 'could reasonably be expected' to have the specified effect. If so, such are then to be considered in the Tribunal's balancing exercise noted below.
15. As emphasised in earlier Appeal Panel decisions, Camilleri and (Commissioner of Police, NSW Police Force v Barrett (No.2) [2016] NSWCATAP 86 (Barrett 2) at [50]), at the outset of the weighing process required by s 13 GIPA Act the Respondent's case must be assessed at the systemic level as that is the way the protections given by many of the s 14 Table considerations are cast. However, the Respondent does not succeed simply because it establishes the systemic aspect of the case, it must also make out the particular concerns in the instant case (i.e. in relation to the Relevant Information): Barrett 2 at [50] and [84] and Camilleri at [26-30].
16. It is then necessary for the Tribunal to allocate weight to each of the public interest considerations for and against (i.e. those where the claimed effect is reasonably expected) disclosure, followed by a process of weighing in the balance those positive and negative elements for each of the Relevant Information to reach a decision as to whether or not access should be granted to that information (i.e. when the negatives outweigh the positives, access should not be granted): Camilleri at [24-27] and Barrett 2 at [17-22].
17. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at [74].
18. In addition to the above, the Appeal Panel in the DYD Appeal Decision, specifically noted in setting aside Order 3 of the Original DYD Decision: "[50] … 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 … [66] … the Tribunal should have asked itself whether the public interest considerations against disclosure in s13 outweighed the public interest considerations in favour of disclosure and made that determination in accordance with the principles of s15."
19. In paragraphs [58] and [59], where I am satisfied that the effects of each of the relied on public interest considerations against disclosure (as listed in the Table in s 14 GIPA Act and as noted in column 3) of the table in [58] and column 4 of the table in [59] below) have been established (see [27]) above) I have weighed them against the public interest considerations in favour of disclosure (as noted in column 2 of the table in [58] and column 3 of the table in [59] below).

The Hearing

1. The 2023 Administrative Review of the Decisions was heard on 16 January 2023 (i.e. the January 2023 Hearing). During the January 2023 Hearing I decided to deal with some of the evidence submitted by the Respondent as confidential bundles and consider the submissions made in relation to such (including some of the evidence of CI Holgate) by way of a short confidential part of the hearing, in accordance with s107 GIPA Act.

The Submissions and Evidence

1. In addition to the oral submissions and evidence presented by the parties at the January 2023 Hearing, the following written submissions and evidence was submitted by the parties for consideration by the Tribunal in these proceedings:

Respondent 1. An undated "Notice of Decision" the Respondent made pursuant to Order 2 of the Orders of the Appeal Panel of the Tribunal dated 30 October 2020, filed with/received by the Tribunal on 1 November 2022 (i.e. the November 2020 Decision); 2. "Notice of Decision" of the Respondent made pursuant to Order 2 of the Tribunal Orders dated 22 August 2022, dated and filed with/received by the Tribunal on 30 September 2022 (i.e. the September 2022 Decision); 3. a confidential bundle of documents/information in relation to the November 2020 Decision being information, found by the Respondent to be subject to an overriding public interest against disclosure, filed with/received by the Tribunal on 1 November 2022; 4. a confidential bundle of information in relation to the September 2022 Decision being information, found by the Respondent to be subject to an overriding public interest against disclosure, filed with/received by the Tribunal on 1 November 2022; 5. the Respondent's written submissions dated and filed with/received by the Tribunal on 2 November 2022 (Respondent Submissions); 6. the Respondent's written submissions in reply dated 30 November 2022 filed with/received by the Tribunal on 1 December 2022 (Respondent Reply Submissions); 7. an open Affidavit of Mr Matthew Smith affirmed on 20 December 2019 filed with/received by the Tribunal on 20 December 2019 (Mr Smith Affidavit); 8. an open and confidential version of an Affidavit of Chief Inspector Marc Holgate of the NSW Police Force (CI Holgate) sworn on 20 December 2019 filed with/received by the Tribunal on 20 December 2019 (CI Holgate Affidavit); 9. an open and confidential version of a second Affidavit of CI Holgate sworn on 28 October 2022 and filed with/received by the Tribunal on 1 November 2022 (CI Holgate Second Affidavit); and 10. an open Affidavit of Ms Sharyn Wilson sworn on 31 October 2022 filed with/received by the Tribunal on 1 November 2022 (Ms Wilson Affidavit).

Applicant 1. The Applicant's written submissions dated and filed with/received by the Tribunal on 21 November 2022 (Applicant Submissions); and 2. An Affidavit of the Applicant dated and filed with/received by the Tribunal on 21 November 2022 (DYD Affidavit).

The Respondent's submissions and evidence

1. In the Decisions and submissions the Respondent notes that the Respondent considered the following public interest considerations in favour of disclosure of the information responsive to Items 4(b) - (f) of the June 2019 Application: • The Statutory presumption in favour of the disclosure of Government information. • The general right of the public to have access to government information held by the agencies. • Some of the information sought concerns you personally.
2. The various Items in the Table in s14 GIPA Act submitted by the Respondent as applicable to the Relevant Information as public interest considerations against disclosure (as detailed in the tables in paragraphs [58] and [59] below) are (Relevant Items): • Item 1 (f) - prejudice the effective exercise by an agency of the agency's functions • Item 1 (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) 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) • Item 2 (b) - prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law
3. In the CI Holgate Affidavit, CI Holgate states in relation to the information relevant to investigation of the Applicant's complaints made to the Eastern Suburbs Command, that: "[15] Investigations under Part 8A [of the Police Act 1990 (NSW)] are particularly sensitive and must be treated confidentially". [18] …if such information were disclosed under the GIPA Act, this has the potential to prejudice the supply of complaint information and evidence in support of investigations in the future. [19] Further, information recorded in misconduct matters contains personal information about individuals who have a valid expectation that their personal information will not be divulged to the public; [20] …there needs to be a degree of confidentiality over the manner in which PACs, PDs and PSC investigate complaints about misconduct and the deliberative process involved in handling complaints … [25] Accordingly, it is not in the public interest to allow the investigative methodologies of the NSWPF to be undermined by those who use disclosed information to effectively avoid the detection of their misconduct or, in some instances, criminal behaviour."
4. In the CI Holgate Second Affidavit, CI Holgate applies the relied on public interest considerations against disclosure in respect of the Relevant Information. As regards the 'routine audits' of the COPS system made by NSW Police, CI Holgate states that: "[84] As a corruption prevention strategy, COPS usage is able to be audited. Random COPS audits are routinely conducted on all members of the NSWPF who have access to the databases. [85] This type of audit generates a report detailing each time a particular member of the NSWPF has accessed COPS within the last twelve months. … "[87] Once completed, an audit report conducted to identify particular searches or actions undertaken using COPS would reveal: (i) the date and time of any searches undertaken; (ii) the registered number of the member of the NSWPF who conducted the search; (iii) a person's unique "Central Names Index" number; (iv) a seven character alpha-numeric program code, which indicates the exact program/function executed to undertake the relevant or perform an action in COPS/for example, was the search undertaken as a charge inquiry or a driver licence inquiry, was a profile generated, etc.); (v) any actions taken to create a new entry or record within COPS and the nature of any such entry or record created (for example, the creation of an information report); (vi) from where the inquiry or action was undertaken (for example, from a particular police station, or from a mobile data terminal); and (vii) the reasons for undertaking an inquiry or taking a particular action within COPS (if any reasons were recorded at the time of access)."
5. As regards the "reverse audit" which the Respondent undertook to provide the information the Respondent holds responsive to Items 4(b) - (f) of the June 2019 Application (i.e. the Relevant Information), CI Holgate states that: "[91] The type of audit required to produce the information sought [in response to Items 4(b) - (f) June 2019 Application] is different to that described above [at paragraph 40 of these reasons for decision]. It is known as a 'reverse audit'. For such information to be obtained, multiple audits would need to be conducted - that is, an audit on each particular search term or record must be run in COPS to determine who, if any, of the authorised users of COPS have conducted a search on that terms or that records ... [93] The NSWPF uses the reverse audit process as an investigative tool in complaint investigation and as a method of monitoring and reducing the risks associated with improper and unlawful computer access, including detecting whether there has been a breach of s308H of the Crimes Act 1900. For example, if NSWPF receives a complaint that a particular police officer is suspected of misusing COPS, targeted auditing of that police officer's COPS access could be carried out. A reverse audit report would not usually be created for any purpose other than as part of a complaint investigation."
6. As regards the effects that could reasonably be expected in relation to the relied on public interest considerations against disclosure of the Relevant Information in respect of a 'reverse audit' report (i.e. the Relevant Items, Items 1 (f), (h) and 2 (b) of the Table in s 14 GIPA Act), CI Holgate states that: "[97] A person could become aware that he or she is under investigation by NSWPF from being provided with an audit report and take action to evade police attention … [98] … I am concerned that the information in an audit report would reveal details of confidential law enforcement methodologies and methods of intelligence and evidence collection. [99] … the release of an audit report would compromise the supply of confidential information to NSWPF by identifying informers. An applicant could seek an audit report for specific days or times that their details were accessed by an officer at the relevant time and could conclude that conduct only known to a particular person or persons was reported by such person(s) to NSWPF. [100] … Similarly, if the public were aware that a person could be given information that may lead to them being identified as an informant, I believe that members of the public would be reluctant or refuse to assist police in future investigations … [101] … I think that the release of audit reports could lead to threats to the lives and wellbeing of officers of NSWPF. If a person becomes aware that their conduct has come to the attention of a particular officer, or unit within NSWPF, this could lead to officers being targeted…"
7. In the CI Holgate Second Affidavit, CI Holgate explained or stated that, most relevantly and in summary: 1. The searches (and further searches) performed to generate the "Reverse COPS Audit Reports". 2. How to interpret the Reverse COPS Audit Reports. 3. What searches were performed to generate the reverse COPS audit report and the further searches performed to locate the "Reasons for accessing COPS Events" and the searches performed in COPS. 4. CI Holgate has concerns about releasing information in the "Reverse COPS Audit Reports, reasons for access audit and the NSWPF Shared Services searches", most relevantly and in summary, as follows: 1. CI Holgate still has the concerns set out in the CI Holgate Affidavit that releasing the relevant information "could alert a person that they are under investigation, the nature of the investigation and the stage of the investigation (based on the frequently and number of the accesses to the COPS Events that have been undertaken." 2. These concerns are also applicable to the information in the reasons for access audits and the NSWPF Shared Services searches. "For example, the provision of the information that an officer attached to the Drug and Firearms Squad looked at a particular COPS Event on particular times and dates might alert a person involved in the importation of drugs, that they are under investigation and what the NSWPF might be aware of, which could result in them abandoning the drug import. If the information is withheld, the person could also deduce that they are under investigation if the information is generally released when they are not under investigation. Moreover, while the person seeking access to such information under GIPA Act might not be named in the COPS Event, the NSWPF would not be able to know whether that person has any associations with the person named in the report and could alert them to the information or is otherwise involved in related criminal activity, whereby they would be able to draw inferences about the status of an investigation and therefore take evasive action that could affect detection of their criminal activity." 3. "… when regard is had to some of the reasons for access to the COPS Events recorded in COPS, the provision of those reasons would reveal the NSWPF investigation techniques that were used for information about the persons who contacted the NSWPF to seek or provide assistance. The disclosure of this information could prejudice the Police investigations to which the COPS Event reports relate or future investigations, for reasons specified [in the CI Holgate Affidavit]."

Applicant's submissions and evidence

1. The Applicant submits in the Applicant Submissions that, in addition to the public interest considerations in favour of disclosure in ss 3, 5 and 12 GIPA Act referred to in the Decisions (see [35] above), the Applicant's relationship with the other persons included in the information requested and the Applicant's motives for making the access application (as detailed extensively in the DYD Affidavit) should also be taken into account by the Tribunal in favour of disclosing the information requested pursuant to s 55 (2) GIPA Act.
2. Further, the Applicant submits in the Applicant Submissions that the examples in s12 (2) GIPA Act, and others, also apply as public interest considerations in favour of disclosure, as follows: "(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; [PICFD 2] (c) The information is personal information of the person to whom it is to be disclosed and/or their children; [PICFD 1] (d) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct; [PICFD 3] (e) The public interest in individuals receiving fair treatment in their dealings with NSW Government and be confident that procedural fairness has taken place; (f) The public interest in a persons right to know, where their right to know highlights the accountability, responsibility and openness of the Government; (g) The public interest to ensure that NSW Police have acted within their lawful authority in the arrest process, the decision to lay charges and the complaint handling process who as a public agency are accountable for their actions; and (h) The public interest to ensure complaints made to NSW Police Force concerning the conduct of Police officers is fully investigated without discrimination to either party."
3. The DYD Affidavit provides details of the history of the Applicant's interactions, communications and discussions with the police, in particular around the Applicant's various complaints and GIPA Act applications and thus their motives for seeking the information requested in Items 4(b) - (f) of the June 2019 Application.

Considerations

1. Firstly, despite the Applicant Submissions and the Applicant's oral submissions during the January 2023 Hearing, as discussed during the January 2023 Hearing, the scope of these proceedings at this time is limited to the Decisions relating to Items 4(b) - (f) of the June 2019 Application. That is, the Applicant's request to re‑open (and for the Tribunal to reconsider) Items 3 and 4(a) of the June 2019 Application (i.e. the Other Matters) is not within the jurisdiction of the Tribunal for the 2023 Administrative Review of the Decisions, the January 2023 Hearing or these Reasons for Decision. As noted in [10] above, the Other Matters have already been separately traversed both on an original and appeal basis (see the DYD Original Decision and the DYD Appeal Decision).
2. CI Holgate's evidence (in both of his affidavits and his appearance before the Tribunal) was detailed and his explanations of the findings of the various audits and in respect of the Relevant Information was extremely helpful to the Tribunal. However some of CI Holgate's evidence, especially in the CI Holgate Second Affidavit, relates not to the information sought by the Applicant in response to Items 4(b) - (f) of the June 2019 Application (i.e. the Relevant Information) but to the actual content of the underlying "COPS Events" which were accessed and which is not the subject of the 2023 Administrative Review of the Decisions. I therefore have not considered this and limit these Reasons for Decision to the Relevant Information to be released or not released (as the case may be) as requested and responsive to Items 4(b) - (d) and (f) of the June 2019 Application (see [3] above).
3. In the absence of any compelling evidence from the Applicant to the contrary, I also accept the detailed evidence of the Respondent that the Information Not Held is, in fact, not held by the Respondent. However, as the Respondent has prepared Item 2 of the Schedule of Documents to the September 2022 Decision then this is a Government record and the information in it responsive to Items 4(b)-(d) and (f) of the June 2019 Application, even where 'Nil reason' or similar is noted in the document in relation to Item 4(d) of the June 2019 Application, as part of the Relevant Information it is subject to consideration for disclosure in these proceedings.
4. The Respondent submits that the information it holds responsive to Items 4(b),(c) (d) and (f) of the June 2019 Application is subject to overriding reasons of public interest not to disclose the information pursuant to Items 1(f), (h) and 2(b) of the Table in s14 GIPA Act (i.e. the Relevant Items).
5. If the effects of the submitted Relevant Items can be established by the Respondent as reasonably expected to have the submitted effects, both systemically and specifically for the Relevant Information, then for each of the Relevant Items so established for that Relevant Information it becomes a public interest consideration against the disclosure for that Relevant Information which must be balanced against the public interest considerations in favour of disclosure of that Relevant Information (see paragraphs [33] and [43]).
6. In considering whether the systemic effects submitted by the Respondent with regard to the Relevant Items "could reasonably be expected", I have followed the analysis in Barrett 2 at [41]: "…the test to be applied is an objective one, approached from the view point of a reasonable decision-maker, and that is the adverse effect asserted must be one that is more than a mere possibility, risk or chance…"
7. In considering whether the specific Relevant Information to be disclosed in each case could reasonably have the specified effect in respect of each of the Relevant Items, I have followed the analysis in Leydon that: "[33] …the Tribunal should not just look at the issue in isolation, but rather examine the issue to determine whether the agency's ability in future would be impaired. [34] In deciding that matter the Tribunal must ask itself whether the disclosure of the information would have the relevant effect."

Conclusions and findings

1. I have examined the Relevant Information, taken into account the evidence and submissions of the parties and, where the stated effects of the public interests considerations against disclosure (i.e. the Relevant Items) have been established for that Relevant Information, I have considered and weighed the public interest factors for disclosure (as detailed in column 2 of the table in [58] and column 3 of the table in [59]) and against those public interest considerations against disclosure of the Relevant Information (but only where the public interest considerations against disclosure noted in column 3 of the table in [58] and column 4 of the table in [59] have been established). In this process I have given considerable weight to the general presumption which favours disclosure of government information. Where none of the stated effects of any of the public interest considerations against disclosure relied on by the Respondent (i.e. the Relevant Items) have been established for any of the Relevant Information then I am satisfied that the general presumption which favours disclosure of that Relevant Information prevails.
2. I am satisfied on the materials before me that the Respondent has established that the systemic effects of all of the submitted public interest considerations against disclosure (i.e. the Relevant Items) are to be reasonably expected.
3. I am further satisfied on the materials before me that the Respondent has also established that the release of certain of the Relevant Information in this case, noted as "withhold" in the tables in [58] and [59], would also reasonably to be expected to have the claimed specified effects of the Relevant Items. That is, the Respondent has established that the claimed effects for the submitted public interest considerations against disclosure (Items 1(f), (h) and 2(b) of the Table in s14 GIPA Act) for part of the Relevant Information (noted as "withhold" in the tables in [58] and [59]) could reasonably be expected to occur (referred to below as PICAD RI).
4. In relation to the Relevant Information noted as "release" in the tables in [58] and [59], the specified effects of the Relevant Items as regards that Relevant Information have not been established (and thus the Respondent has not overcome the burden noted in [28] above) and thus the presumption in favour of release of the Relevant Information prevails.
5. On the materials before the Tribunal I am satisfied that the Applicant has not established as relevant in this case in relation to the Relevant Information the public interest considerations in favour of disclosure noted in [43] above, other than those noted to as [PICFDs 1-3]. Of these, I have given only limited weight to [PICFDs 1, 2 and 3] given the nature of the Relevant Information.
6. In balancing the public interest considerations for and against disclosure of the PICAD RI and having regard to the weighing exercise of the competing public interest considerations against disclosure balanced with the public interest considerations in favour of disclosure (see the tables in [58] and [59]), I find that on the material before the Tribunal there is an overriding public interest against the disclosure under s 13 GIPA Act of the information which is the PICAD RI and I have made this determination in accordance with the principles of s 15 GIPA Act.
7. Schedule of Documents attached to the November 2020 Decision: The page numbers listed below in column 1 are the Respondent's page numbers of the Relevant Information listed in the Schedule of Documents attached to the November 2020 Decision. Next to each of the Respondent's page numbers, in column 2, the applicable public interest considerations I considered in favour of disclosure (where relevant, see [52] above). In column 3 I note the applicable public interest considerations relied on by the Respondent against disclosure (i.e. the Relevant Items) and, in column 4, I note my findings as regards the Relevant Information in those pages, based on the materials before the Tribunal and the considerations noted in these Reasons for Decision. InfoLink (page numbers) Public Interest Considerations in Favour of Disclosure Submitted s14 Table public interest grounds against disclosure My findings 1-6 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 7-14 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 15-25 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 26-32 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information (i.e. as regards Item 4(f) of June 2019 Application, in particular) withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 33-39 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 40-46 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 47-51 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 52-57 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 58-63 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 64-70 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information (other than the line for 17/12/17 at 11.51) as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 71-76 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 77-80 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 81-84 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information (other than the line for 23/6/18 at 00:35) as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 85-89 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 90-94 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 95-98 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 99-102 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 103-106 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. 107-113 s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) As regards Items 4(b), (c) and (f) of the June 2019 Application release each line of information in these pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC", "UC" (i.e. those records of delete, update, delete confirmed and update confirmed) for that relevant line of information as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information.

1. Schedule of Documents to the September 2022 Decision: The documents listed below in column 1 are the Respondent's documents of the Relevant Information of the Schedule of Documents attached to the September 2022 Decision. Next to each of the Respondent's documents, in column 2, I note the Respondent's description of the document containing the Relevant Information and, in column 3, the applicable public interest considerations I considered in favour of disclosure (where relevant, see [52] above). In column 4 I note the applicable public interest considerations relied on by the Respondent against disclosure of the information and, in column 5, I note my findings as regards that Relevant Information in those documents based on the materials before the Tribunal and the considerations noted in these Reasons for Decision. InfoLink Document Description Public Interest Considerations in Favour of Disclosure Submitted s14 Table public interest grounds against disclosure My findings (Page numbers) Excel spreadsheet Name, Rank and Station of Various Officers at the time of COPS Access s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) Withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information. Excel spreadsheet Reasons for Access audits s12 GIPA Act, PICFDs 1, 2 and 3 1(f), (h), 2(b) Release the lines of information in this document that match the lines of information to be released as noted in the table in [58] above, as the submitted effects of the relied on public interest considerations against disclosure were not established as reasonably expected for this information. For all other information in this document withhold as the public interest considerations against disclosure established as reasonably expected, on balance, outweigh the public interest considerations in favour of disclosing the information.

Orders 1. The Commissioner of Police must release the information which is noted as for "release" in the tables in paragraphs [58] and [59] of these Reason for Decision within 21 days of the date of these Reasons for Decision. 2. The decisions of the Commissioner of Police (a) dated 30 September 2022 and (b) filed with the Tribunal on 1 November 2022 are otherwise affirmed. 3. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (NSW), part of the hearing was conducted in the absence of the applicant and the public insofar as it related to certain confidential material of the Commissioner of Police and CI Holgate's evidence as regards such (Confidential Part of the Hearing). 4. Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013, the publication and broadcast of any report of the proceedings of the Tribunal in the Confidential Part of the Hearing is prohibited. 5. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of (a) evidence given in the Confidential Part of the Hearing, (b) the two confidential bundles of documents filed by the Commissioner of Police with the Tribunal on 1 November 2022 and (c) the confidential versions of CI Holgate's affidavits (sworn on 20 December 2019 and 28 October 2022) is prohibited. 6. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of (a) the recording or any transcript of the Confidential Part of the Hearing, (b) the two confidential bundles of documents filed by the Commissioner of Police with the Tribunal on 1 November 2022 and (c) the confidential versions of CI Holgate's affidavits (sworn on 20 December 2019 and 28 October 2022) is restricted to the Commissioner of Police, the legal representatives for the Commissioner of Police and the Tribunal.

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