DYD v Commissioner of Police, NSW Police Force - [2025] NSWCATAD 53 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

DYD v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 53

NCAT Administrative and Equal Opportunity|2023-12-05

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2023-12-05

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Background to the current proceedings

The procedural history of this case before DYD Appeal 3 is set out in some detail in the decision of the Tribunal in DYD 3 at [3]−[12]. What follows is a summary of this history.
The Applicant made an application to the Respondent on 30 June 2019 under s 41 of the GIPA Act for access to certain government information. After several amendments to the application over the next few months, the information requested by the Applicant was as follows: "1. Information concerning my police complaints to Eastern Suburbs Command, including internal correspondence relating to those complaints, and drafts and final version of written correspondence (both internal and external communications), together with any notes (including handwritten notes), concerning the police complaints. 2. Information that was reviewed, considered or contemplated by Police in relation to my police complaints and/or responding (internally and externally), to those complaints. 3. For each of myself, my daughter [OMITTED], and my son [OMITTED], information relating to [OMITTED], [OMITTED], [OMITTED] or [OMITTED]. 4. For each of myself, my daughter [OMITTED], and my son, [OMITTED], in relation to COPS information that pertains to each of us over the last three (3) years: a. Date and time each COPS event was first created and details of the person who created the event (including their name, job title, role, location and branch of the NSW Police force); 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 too [sic]; 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); 5. For each of my GIPA access applications on 9 October 2018, and 22 January 2019, information relating to the consideration, review, determination and response to each of those GIPA access applications."

However, the dispute concerning access to the COPS events information has not been finally resolved. The following summarises its history in the Tribunal: 1. The Tribunal in DYD 1 ordered the issue of access to the COPS events information to be remitted to the Respondent for a further decision to be made on the basis that: (a) the information in issue was subject to the GIPA Act; and (b) cll 1(f), 1(h) and 2(b) of the Table to s 14 of the GIPA Act are relevant to the decision (the Reconsideration Order). 2. The Appeal Panel in DYD Appeal 1 dismissed an appeal against the Reconsideration Order. 3. After undertaking the reconsideration required by the Reconsideration Order, the Respondent made the following two decisions that are the subject of the current proceedings (the Access Refusal Decisions): 1. The Respondent, in a decision dated 30 October 2020 and lodged with the Tribunal on 1 November 2022, refused to give the Applicant access to any of the 19 reverse access audit reports for the COPS entries listed in the Schedule of Documents annexed to the notice of the decision (the 2020 Access Refusal Decision). 2. The Respondent, in a decision dated 22 August 2022 and lodged with the Tribunal on 30 September 2022, refused to give the Applicant access to two documents comprised of Excel spreadsheets listed in the Schedule of Documents annexed to the notice (the 2022 Access Refusal Decision). These two spreadsheets provide information about: (1) the name, title, rank and location of various officers at the time of COPS access; and (2) reasons (if any) for COPS access indicated by the audits. The decision concerning this information, which is information supplemental to the 2020 Access Refusal Decision, was made some time after the 2020 Decision because the Respondent realised that further searches could have been made. 1. The Tribunal in DYD 3 decided to order the release of some of the information withheld under the Access Refusal Decisions, but to otherwise affirm the Respondent's decision to refuse access. 2. The Appeal Panel in DYD Appeal 3 set aside the decision of the Tribunal in DYD 3 and remitted the matter to the Tribunal differently constituted for reconsideration.

[2]

In relation to the reverse COPS audit reports to which the 2020 Access Refusal Decision related, the Tribunal ordered the release of each line of information in the relevant pages for all types or "TYP" of lines/entries showing as any of "D", "U", "DC" or "UC'' for that relevant line of information. 2. In relation to the spreadsheet entitled "Reasons for Access Audits" to which the 2022 Access Refusal Decision related, the Tribunal ordered the release of information in the document that matched the lines of information to be released from the reverse COPS audit reports. 3. However, the Tribunal affirmed the withholding of other information, including information about lines/entries showing as "E", "DA" or "UA" and the matching entries in the Excel spreadsheet mentioned above. 4. The codes distinction drawn by the Tribunal was therefore between lines/entries showing as "D", "U", "DC" or "UC'' and those showing other codes such as E", "DA" or "UA".
As mentioned in the Overview, the subject-matter of the current proceedings is the remittal for reconsideration ordered by the Appeal Panel in DYD Appeal 3. As the orders made by the Tribunal in DYD 3 concerned the Access Refusal Decisions, it follows that these are the decisions liable to be set aside, varied or affirmed in the current proceedings.
For completeness, I note that the former presiding member in the current proceedings made the following orders on 5 December 2023 after the hearing: "1 The decision is reserved. 2 Pursuant to s 49(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) the hearing is to be conducted partially in private ('the confidential session'). 3 The publication or broadcast of any report of proceedings in the confidential session in this matter is prohibited. This order is made under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013. 4 The publication of the Confidential Affidavit of Marc Holgate sworn 28 October 2022, the Confidential bundle of s 58 documents filed by the respondent on 1 November 2022, and the transcript of the confidential session of the hearing of these proceedings on 16 January 2023 is prohibited. This order is made under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013. 5 The disclosure to [DYD] of Confidential Affidavit of Marc Holgate sworn 28 October 2022, the Confidential bundle of s 58 documents filed by the respondent on 1 November 2022, the transcript of the confidential session of the hearing of these proceedings on 16 January 2023, and the recording of the confidential session of the hearing conducted on 5 December 2023 is prohibited. This order is made under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013."
These non-publication and non-disclosure orders, along with the order prohibiting the publication or disclosure of the names of the Applicant and the Applicant's family members, continue in force. In addition, there is the order set out at the end of these reasons prohibiting the publication or disclosure to the Applicant and the public of the contents of any paragraphs in these reasons marked "NOT FOR PUBLICATION".

[3]

Material before the Tribunal

In the Respondent's written submissions for the current proceedings dated 6 October 2023 (Respondent's 2023 Submissions) at par 6, the Respondent relies on the following material: 1. The Notice of Decision for the 2020 Access Refusal Decision. 2. The Notice of Decision for the 2022 Access Refusal Decision. 3. A confidential bundle of documents in relation to the 2020 Access Refusal Decision containing 19 "reverse audit reports" from the COPS database. 4. A confidential bundle of information in relation to 2022 Access Refusal Decision containing the two spreadsheets referred to earlier. 5. The affidavit of Chief Inspector Holgate sworn on 20 December 2019 (First Holgate Affidavit). 6. The open and confidential versions of the affidavit of Chief Inspector Holgate sworn on 28 October 2022 (Second Holgate Affidavit). 7. The Respondent's written submissions dated 2 November 2022 (Respondent's 2022 Submissions). 8. The Respondent's written submissions in reply dated 30 November 2022 (Respondent's 2022 Reply Submissions). 9. The transcript of the open session of the hearing on 16 January 2023. 10. The transcript of the confidential session of the hearing on 16 January 2023.
I have also had regard to the submissions made by the Respondent in the Respondent's 2023 Submissions and the Respondent's written submissions in reply for the current proceedings lodged on 10 November 2023 (Respondent's 2023 Reply Submissions).
In the Applicant's written submissions lodged on 1 November 2023 (Applicant's 2023 Submissions) at par 17, the Applicant relies on the following material: 1. The decision of the Tribunal in DYD 3. 2. The decision of the Appeal Panel in DYD Appeal 3. 3. The Applicant's affidavit dated 9 August 2023 lodged for DYD Appeal 3. 4. The Applicant's submissions lodged on 21 November 2022 for the DYD 3 (Applicant's 2022 Submissions). 5. The Applicant's affidavit dated 16 November 2022 for lodged for DYD 3. 6. The Applicant's affidavit dated 9 February 2020 lodged for DYD 2. 7. The First Holgate Affidavit. 8. The Second Holgate Affidavit. 9. The Respondent's 2022 Submissions. 10. The Respondent's 2022 Reply Submissions. 11. The transcript of the hearing for DYD 3 on 16 January 2023.
I have also had regard to the submissions made by the Applicant in the Applicant's 2023 Submissions.
In addition, I have considered the submissions and evidence recorded in the transcript of the hearing on 5 December 2023 for the current proceedings, including the confidential session of the hearing.

[4]

Jurisdiction and role of the Tribunal

The jurisdiction of the Tribunal includes administrative review jurisdiction: NCAT Act, s 28(1) and (2). The Tribunal has administrative review jurisdiction if enabling legislation allows a person to make an application to the Tribunal for an administrative review under the ADR Act of a decision of an administrator: ADR Act, s 9: NCAT Act, s 30(1). Section 100 of the GIPA Act confers such jurisdiction on the Tribunal. It follows that the Tribunal has jurisdiction to consider the Administrative Review Application.
The role of the Tribunal in an administrative review is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1).
When conducting an administrative review, the Tribunal may exercise all the functions that are conferred or imposed by any relevant legislation on the decision-maker who made the decision: ADR Act, s 63(2). In doing so, the Tribunal effectively stands in the shoes of the decision-maker: Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 at [98]; NSW Self Insurance Corporation v EEH [2023] NSWCATAP 181 at [86].
The Tribunal is not bound by the rules of evidence when it conducts an administrative review: NCAT Act, s 38(2). Nevertheless, it must base its findings on logically probative material, and not on mere suspicion or speculation: Meacham v Commissioner of Police [2020] NSWCATAP 107 (Meacham) at [54]. The Tribunal must consider the matter afresh, with neither party generally bearing an onus of proof except for a practical onus on the party who asserts a fact to prove its existence: Collins v Department of Fair Trading [2019] NSWCATAP 199 at [47]; Meacham at [83]. However, for an administrative review of a decision of an agency to refuse access to government information, the legal burden of establishing that the decision is justified lies on the agency: GIPA Act, s 105(1). Although the Tribunal is not bound by the rules of evidence, this does not mean that particular rules cannot be applied by analogy in the Tribunal in appropriate cases to guide its deliberations: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127] (Leeming JA); Meacham at [84].
Also, in determining an administrative review application under the GIPA Act, the Tribunal must ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure: GIPA Act, s 107(1). It must also receive evidence and hear argument in the absence of the applicant and the public on the application of the agency: GIPA Act, s 107(3).
Section 63(3) of the ADR Act provides that the Tribunal may determine an administrative review application by: 1. affirming the decision of the administrator under review; or 2. varying the decision; or 3. setting the decision aside and making a decision in substitution; or 4. setting the decision aside and remitting it to the administrator for reconsideration in accordance with any directions or recommendations of the Tribunal.

[5]

What needs to be reconsidered in the current proceedings

What needs to be reconsidered in the current proceedings requires close scrutiny of what was decided by both the Tribunal in DYD 3 and the Appeal Panel in DYD Appeal 3.
In addition to various non-publication and non-disclosure orders, the Tribunal in DYD 3 made the following 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[s] 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."
The nature of the information to which the first order relates (the information previously ordered to be released) has been explained above. The effect of the second order was to affirm the Respondent's decision to withhold the balance of the information (the affirmed withheld information).
On appeal, the Appeal Panel in DYD Appeal 3 at [58] made the following orders in addition to its own non-publication and non-disclosure orders: "(1) Appeal upheld. (2) Set aside the orders of the Tribunal. (3) Remit the matter back to the Tribunal differently constituted for reconsideration in accordance with these reasons with or without further evidence as the Tribunal may consider."
There is, as the former presiding member suggested at the hearing, some uncertainty about the scope of what the Appeal Panel ordered. On their face, the Appeal Panel's orders seem to set aside all the orders made by the Tribunal in DYD 3, including the Tribunal's order concerning the affirmed withheld information. If this is the true effect of the Appeal Panel's orders, then the current proceedings would need to reconsider the findings of the Tribunal in DYD 3 both in relation to the information previously ordered to be released and the affirmed withheld information.
The Respondent submits that the true effect of the Appeal Panel's orders was to set aside only the order concerning the information previously ordered to be released: Respondent's 2023 Reply Submissions at pars 4−5. The Respondent submits this was all that was sought by the Respondent in the appeal; the Respondent did not seek to have the order concerning the affirmed withheld information overturned. Moreover, the Respondent submits that the Applicant did not appeal against the order concerning the affirmed withheld information. There was therefore no challenge to that order. Indeed, the Respondent submits the Applicant appears to agree that the information in dispute is limited to the information previously ordered to be released: Respondent's 2023 Reply Submissions at par 5.
Although it is not entirely free from doubt, it does appear that the Applicant agrees that the information in dispute in the current proceedings can be limited to the information previously ordered to be released. The Applicant submits that the correct and preferable decision for the Tribunal to make in the current proceedings is to make the same decision as the Tribunal in DYD 3: Applicant's 2023 Submissions at par 18. The Applicant also refers to the "Remaining Information in Dispute" by reference to the information previously ordered to be released: Applicant's 2023 Submissions at par 16. The Applicant suggests that the Applicant will appeal the decision in the current proceedings "if the Fourth Original Decision does not at least grant them the same access to information as occurred for the Third Original Decision": Applicant's 2023 Submissions at par 26(c)(iv).
At the hearing, the parties agreed that the central issue was whether it is correct to draw the COPS codes distinction. Both the Applicant and the Respondent submit that the distinction is irrelevant, but they submit that different consequences flow from abandoning the distinction. I will deal with this issue later in these reasons.
The failure of the Tribunal to give adequate reasons for drawing the COPS codes distinction was central to the decision of the Appeal Panel in DYD Appeal 3 to remit the matter for consideration. The Appeal Panel said: "35 Applying these principles [concerning adequate reasons] to the case before us, the first matter for consideration is to highlight the critical evidence that was before the Tribunal. The evidence before the Tribunal, in detailed form from the Police, was that disclosure of the relevant COPS entries would compromise, or be reasonably expected, to compromise the work of the Police. That evidence was in its terms equally applicable to all of the different types of lines/entries including for example 'D', 'U', 'DC', 'UC' (i.e., those records of delete, update, delete confirm and update confirm) as well as other types of lines/entries such as 'E', 'DA', 'UA' (i.e. those records of enquire, no delete performed and no update performed). 36 Nextly, when the Tribunal came to its conclusion on this evidence, its critical findings (at [58] and [59]) was to the effect that the evidence did not persuade the Tribunal in respect of lines/entries of the types showing as any of 'D', 'U', 'DC' or 'UC', but the evidence did persuade the Tribunal that there was a public interest consideration in favour of non-disclosure for other codes including 'E', 'DA' or 'UA'. 37 In this regard, we note that the conclusion of the Tribunal was simply that. There was a bare statement of the conclusion without any other underlying reasoning or reference back to the evidence in question. 38 Of particular relevance to us is the fact that the distinction drawn by the Tribunal between the lines/entries showing as any of 'D', 'U', 'DC, 'UC' and the other entries in the reverse audit reports treated differently by the Tribunal is unexplained in the Tribunal's reasons. 39 The nature of the evidence that was before the Tribunal and the nature of the distinction between the different types of lines/entries leaves us unable to ascertain on what basis the Tribunal made the distinction that it did between the different types of lines/entries."
In addition, the Appeal Panel noted: "48 In our view, the reasons given by the Tribunal are inadequate essentially because there is no exposed reasoning as to why the Tribunal rejected the evidence for some entries but accepted the evidence for other entries. 49 In our view, the failure to explain its critical reasoning for making this conclusion, has deprived the Appellant from any meaningful right to challenge the conclusion on appeal."
There is some difficulty in deciding the correct approach for the Tribunal to take in the current proceedings despite the apparent agreement of the parties about the information that remains in dispute. On my reading of the decisions of the Tribunal in DYD 3 and the Appeal Panel in DYD Appeal 3, the Tribunal simply did not give any reasons indicating why the affirmed withheld information should be withheld or why the information previously ordered to be released should be released. This may explain why the Appeal Panel in DYD Appeal 3 set aside all the orders of the Tribunal concerning the information rather than just the order concerning the information previously ordered to be released. Moreover, the remittal was not limited to reconsidering the information previously ordered to be released. It allowed for further evidence to be given on the remittal at the discretion of the Tribunal.
In particular, it is difficult to limit the reconsideration to whether or not the entries marked "D", "U", "DC" or "UC" were relevantly different to those marked with other codes such as "E", "DA" or "UA" without knowing what it was about the second-mentioned information that justified treating it as subject to an overriding public interest against disclosure. If the Tribunal had articulated the justification with the endorsement of the Appeal Panel, it would simply be a matter for the Tribunal in the current proceedings to decide whether the same or another justification supported withholding the information previously ordered to be released. However, this is not the case.
In these circumstances, I consider that the correct approach for the Tribunal to take in the current proceedings is to decide whether there was an overriding public interest against disclosing both the affirmed withheld information and the information previously ordered to be released, whether on the basis of a common overriding public interest or different overriding public interests.

[6]

Evidence of Chief Inspector Holgate

It is useful first to set out the evidence of Chief Inspector Holgate before dealing with the parties' submissions. The Chief Inspector is the Professional Standards Manager of the Professional Standards Command. The Chief Inspector's role includes ensuring all legislative, policy and administrative obligations relating to complaint management are met for misconduct matters about members of the NSWPF.
In the open version of the First Holgate Affidavit at pars 68−83, Chief Inspector Holgate states the following concerning the use of COPS: 1. COPS was introduced in 1994 as the information management system for the NSWPF to be used for capturing, storing and analysing operational information and intelligence on an organisation-wide basis. 2. COPS is used to record information and to access other connected systems for the following reasons: 1. Case Management: recording information concerning the investigation of incidents reported to the NSWPF. 2. Charge Management: recording police activities from the initiation of legal action against an offender to custody administration and maintenance of the offender's full criminal history. 3. Custody Management: recording police and prisoner activities from when a person first comes into custody until that person is released or transferred to the custody of other agencies. 4. Licensing: accessing information about whether a person holds a firearms licence, or whether an address is a safe storage address for firearms. 5. Intelligence systems: accessing information about possible and actual crime, public order, and associations of people that come under adverse police notice. 1. Information stored within COPS is accessible to members of the NSWPF. 2. COPS enables members of the NSWPF to record and enquire about the details of any person, organisation, location, object or vehicle that comes to the attention of police officers during the performance of their duties. 3. A COPS event is created when a police officer enters information into the COPS system after attending to a criminal or non-criminal activity that is not purely an internal administrative matter. 4. Each COPS event usually includes the following: 1. a unique number for the event; 2. information about the location, what occurred, the names of the parties and objects such as weapons and cars; 3. a summary of the action was taken by police, whether criminal charges resulted, and any other relevant information. 1. A COPS event may also record a warning for NSWPF officers who have to attend a particular address or deal with a named person in the future. 2. All future records relating to a person is linked to their initial record. 3. NSWPF officers can create event reports, edit those reports up until they are verified by a supervisor, and update the event reports as required. 4. Police officers regularly undertake searches of COPS for the purposes of exercising their functions regardless of whether an accessed event record was created by themselves or other officers. 5. Members of the NSWPF are required to treat all information that comes to their knowledge in their official capacity as strictly confidential. They cannot divulge confidential information to anyone without proper authority. This includes information gained from accessing COPS. Users of COPS are reminded of the need to maintain confidentiality by warnings displayed both when they log on to their computers and on to COPS.
It is possible to conduct audits of COPS. As mentioned previously, there is a distinction between "routine" COPS audits and "reverse" COPS audits.
In the open version of the First Holgate Affidavit at pars 84−89, Chief Inspector Holgate states that a routine COPS audit generates a report detailing each time a particular member of the NSWPF has accessed COPS within the previous 12 months. Random routine audits are used as a corruption prevention strategy, with officers required to justify their use of COPS by reference to a random sample of accesses selected by the auditor. A routine audit report provides information such as the date and times of access, whose information was accessed and the function executed by the officer while accessing COPS.
A reverse COPS audit is different because its focus is COPS entries and who has accessed them. In the current proceedings, the Applicant seeks information about COPS events concerning the Applicant and family members of the Applicant, including when an entry was updated, modified, amended, changed, altered, edited or deleted, who did so and why, who has accessed the entry and when, and the information to which the entry relates.
In the open version of the First Holgate Affidavit, Chief Inspector Holgate states that for information for a reverse audit to be obtained, multiple audits need to be conducted: First Holgate Affidavit at par 91. 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 term or that record.
In the open version of the Second Holgate Affidavit at par 10, Chief Inspector Holgate states that the contents of a reverse COPS access report can be broadly broken down into 4 sections: (1) transaction; (2) user; (3) object; and (4) record.
The transaction section of the report contains 3 fields about the action that took place with the COPS event: (1) the date; (2) the time; and (3) the type of action that took place. Codes are used to identify the type of action, which Chief Inspector Holgate explains in the open version of the Second Holgate Affidavit at par 11 in the following terms: "a. CC: Create Confirmed, which means the COPS user confirmed the creation of the COPS event by answering 'yes' in the confirmation window (in other words, that the COPS user accessed the COPS event in a way that permitted them to edit or update the COPS event and in fact did so). b. DA: No Delete Performed, which means the COPS user selected to delete a key or field in the COPS event but did not confirm the deletion. In other words, the COPS user accessed the COPS event in a way that would have enabled them to delete parts of the information in the COPS event (for example, because there may have been some errors, such as, if a person is recorded as a witness but should have been entered as a victim) but did not end up making any deletions. c. E: Enquire, which means that the COPS user directly accessed the COPS event by typing in the COPS event number. In other words, the COPS user looked at the COPS event and accessed the COPS event in a way that would only permit them to view the COPS event and not make any changes to it. d. J: Update Applicant, which means that the administration applicant's record has been updated. e. UA: No Update Performed, which means the COPS user selected to update a key or field in the COPS event but did not confirm the update. In other words, the COPS user accessed the COPS event in a way that would have enabled them to make edits to it but did not end up making any edits. e. UC: Update Confirmed, which means the COPS user confirmed the update by answering 'yes' in the confirmation window. In other words, they accessed the COPS event by the user mode, and made an edit or update to the COPS event."
The user section contains four fields about the person accessing the COPS event: (1) the person's registration number; (2) their first name; (3) their surname; and (4) their group: Second Holgate Affidavit at par 12.
The object section of the report contains one field about the search enquiry that has been performed to access the COPS event with the title "object type". Of present relevance, the use of the "EVENT ENQ" object type means that the reverse audit returned all the times there had been an event enquiry (whether for creating, viewing, updating and deleting parts of the event): Second Holgate Affidavit at par 13.
Finally, the record section of the report contains four fields about how the action took place with the COPS event: (1) the reference number searched to bring up the COPS event (called the key); (2) the value (which is generally a description of the key); (3) the program ID for the program used to perform the action; and (4) the terminal ID for the terminal used to perform the action: Second Holgate Affidavit at par 14.
In both Affidavits, Chief Inspector Holgate states why he considers that there are public interest considerations for the purposes of s 14 of the GIPA Act against the disclosure to the Applicant of the reverse COPS audit reports and supplemental spreadsheets. I will return to those considerations and the Chief Inspector's statements about them later in these reasons.
Before leaving the Chief Inspector's evidence, something needs to be said about his oral evidence given on cross-examination by the Applicant at the hearing for the current proceedings. In cross-examination during the open session of the hearing: 1. The Chief Inspector said that he is usually approached by the legal representatives of the NSWPF after access to information has been refused under the GIPA Act for his opinion as to whether there are public interest considerations against disclosure. 2. The Chief Inspector stated his role is to defend the refusal and, in doing so, his focus is not on the personal circumstances of the Applicant or his family. Rather, his focus is risks assessed at a systemic level. 3. The Chief Inspector conceded that his Affidavits did not include explanations of codes "D", "DC" and "U". He indicated that the reason for this was that it was unclear to him at the time of the Affidavits which codes would be in issue. When asked to explain what codes "D", "DC" and "U" meant, he said: "How can I explain it. I think all the matters around the delete, like D is delete, okay, but the ones I've got here actually says - okay, like a D might come up, for example, if someone is looking to delete something but they haven't hit the last key and have aborted it, so hence we get the DA ones. So they've started to delete but it hasn't actually occurred. Likewise I think you said DC, that's the delete confirmed, that's when they have actually deleted something. So it depends on the final outcome. The same with the updates, the Us, okay. Again there is the UA here which is a further category from simply update to indicate that no update has been performed, and similarly update confirmed means in fact an update has occurred to that relevant COPS entry."

[8]

Respondent's case

As mentioned above, the approach that the Tribunal has decided to take in the current proceedings is to consider whether there is an overriding public interest against disclosure for both the withheld information and the information previously ordered to be released. The Respondent indicated at the hearing on 5 December 2023 that if the Tribunal decided to take this approach, the Respondent relied on submissions in both the Respondent's 2022 Submissions (along with the Respondent's 2022 Reply Submissions) and the Respondent's 2023 Submissions (along with the Respondent's 2023 Reply Submissions). I approach the Respondent's case with this in mind.
Having regard to all these submissions, the Respondent's case can be summarised as follows: 1. The Table to s 14 of the GIPA Act requires an agency (in this case, the Respondent) to establish that the disclosure of the COPS events information "could reasonably be expected to have one or more of the effects (whether in a particular case or generally)" listed in the Table. 2. The Respondent submits that the disclosure of the information could reasonably be expected to have the prejudicial effects mentioned in cll 1(f) and (h) and 2(b) of the Table. 3. The Respondent submits that "could reasonably be expected to" and "prejudice" are to be given their ordinary meanings. 4. The Respondent submits that the considerations in the Table to s 14 need to be examined at a broad operational level and are directed to the administrative structure and context, and its conditions, to which information belonged. 5. The Respondent relies principally on the evidence of Chief Inspector Holgate to establish that these effects could reasonably be expected. In particular, it is submitted that the Chief Inspector's evidence shows that merely disclosing information about who accessed the COPS database may have these effects regardless of the action code assigned in COPS for the access. 6. The Respondent submits that as the evidence of Chief Inspector Holgate was found by the Tribunal in DYD 3 to have been sufficient to establish these effects for the affirmed withheld information, then it must follow that it would also be sufficient to establish the effects for the information previously ordered to be released. 7. The Applicant submits that the public interest considerations against disclosure outweigh the considerations in favour of disclosure so that the correct and preferable decision is for the Tribunal to affirm the Access Refusal Decisions.

[10]

Law concerning the balancing exercise

As mentioned above, s 13 of the GIPA Act sets out the test for deciding whether there is an overriding public interest against disclosure. In the often-cited case of Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri) at [24]−[25], the Appeal Panel of the Administrative Decisions Tribunal described the approach required by s 13 in the following terms: "24 Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25 The [GIPA] Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government."
In Taylor v Destination NSW [2017] NSWCATAD 272 (Taylor) at [17], the Tribunal said: "Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to: (1) identify relevant public interest considerations in favour of disclosure, (2) identify relevant public interest considerations against disclosure, (3) attribute weight to each consideration for and against disclosure, and (4) determine whether the balance of the public interest lies in favour of or against disclosure of the government information."
As noted in Camilleri at [25], the weighing of public interest considerations must be mindful of the injunctions contained in ss 12 and 15. Section 12(1), as mentioned above, provides that there is a general public interest in favour of the disclosure of government information. Section 15 sets out the relevant principles to be applied as follows: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (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.
The object of the GIPA Act referred to in s 15(a) is stated by s 3(1) as follows: In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
It is wrong for the Tribunal to apply the principles stated in s 15 after the weighing exercise for the purpose of deciding whether there is anything contrary to the principles preventing the disclosure of the information concerned. Rather, as the Appeal Panel noted in DYD Appeal 1 at [66], the Tribunal must ask itself whether the public interest considerations against disclosure in s 13 outweigh the public interest considerations in favour of disclosure and make that determination in accordance with the principles in s 15.
Certain personal factors of an access application are also relevant to determining whether there is an overriding public interest against disclosure. Section 55 of the GIPA Act provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note - An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
The personal factors of an access application do not themselves constitute public interests in favour of disclosure, although they may coincide with or highlight such a public interest: Snape v Commissioner of Police [2022] NSWCATAP 63 at [56]. Accordingly, it is wrong to treat these personal factors as the only factors favouring disclosure; it is still necessary to identify the public interest considerations in favour of disclosure and give them weight: Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 at [41].
The cases to which I have referred make it clear that the balancing of the competing public interest considerations can only occur once each consideration is properly identified and weighted. Accordingly, I turn first to identifying the public interest considerations relevant to this case and deciding the weight to be given to each of them.

[11]

Public interest considerations in favour of disclosure

I accept, as the Applicant submits, that the Tribunal should generally give significant weight to the general public interest consideration in favour of disclosure stated by s 12(1) of the GIPA Act: Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [89].
However, s 12(2) makes it clear that this general public interest consideration is not the only public interest consideration in favour of disclosure. The note at the end of s 12(2) (the s 12(2) note) includes non-exhaustive examples of such considerations: Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 (Barrett No 1) at [138]. The note provides: Note - The following are examples of public interest considerations in favour of disclosure of information - (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
In identifying public interests favouring disclosure apart from the examples stated in the s 12(2) note, "[t]he Tribunal is only constrained by requirements of reasonableness and the like": Barrett No 1 at [138].
The Applicant in the Applicant's 2022 Submissions at par 59 relies on the following considerations in favour of disclosure (the Applicant's Disclosure Considerations): "(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public; (c) The information is personal information of the person to whom it is to be disclosed and/or their children; (d) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct; (e) The public interest in individuals receiving fair treatment in their dealings with NSW Government and be confident procedural fairness has taken place; (f) The public interest in a persons [sic] right to know, where their right to know highlights the accountability, responsibility and openness of the Government; (g) The public interest to ensure 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."
Paragraphs (a), (b), (c) and (d) of the Applicant's Disclosure Considerations quote directly from, respectively, examples (a), (b), (d) and (e) in the s 12(2) note.
The considerations in paragraphs (a), (b) and (d) of the Applicant's Disclosure Considerations (which respectively quote examples (a), (b) and (e) in the s 12(2) note) each require that the disclosure "could reasonably be expected to" have an effect mentioned in the consideration. In Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont J said of a comparable requirement in Commonwealth freedom of information legislation: "In our opinion, in the present context, the words 'could reasonably be expected to prejudice the future supply of information' were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like …"
The wording of paragraph (c) of the Applicant's Disclosure Considerations differs from example (d) in the s 12(2) note by including a reference to an applicant's children. Example (d) is textually limited to personal information about the person to whom it is to be disclosed.
The other paragraphs of the Applicant's Disclosure Considerations (that is paragraphs (e), (f), (g) and (h)), although not quoting directly from the examples in the s 12(2) note, nevertheless seem to invoke aspects of those examples.
Accordingly, it seems to me appropriate to address the Applicant's Disclosure Considerations first by reference to public interest considerations in the examples in the s 12(2) note that the Applicant seems to invoke, whether directly or indirectly.

[14]

Example (d) consideration - information is personal information of the person to whom it is to be disclosed

As mentioned above, the public interest consideration in example (d) focuses on personal information about the person to whom it is to be disclosed. In the current proceedings, this is the Applicant. However, the Applicant also suggests that there is a public interest in the disclosure to the Applicant of personal information about the Applicant's children.
Although it is true that the public interest considerations in favour of disclosure are not limited to the examples in the s 12(2) note, when deciding what other public interests in addition to these examples are relevant it is, in my view, still appropriate to take into account the terms of an example that expressly deals with the same subject-matter.
The limiting of example (d) to personal information about the applicant is unsurprising. If the example were cast more widely, this would potentially have adverse impacts on the privacy interests of other individuals (including children) despite the protections afforded by the Privacy and Personal Information Protection Act 1998 (NSW). That said, parents do have interest in the welfare of their children, including the disclosure of information relevant to their children's welfare. However, the interest is not absolute; it is subordinate to a child's bests interests. This is recognised in the GIPA Act. For instance, cl 3(g) of the Table to s 14 provides that there is a public interest against disclosure of information about a child if disclosure of the information could reasonably be expected not to be in the best interests of the child.
Nevertheless, I find that there are public interest considerations in favour of disclosing to the Applicant whatever personal information about the Applicant and the Applicant's children is contained in the reverse COPS audit reports and the supplemental information. These considerations should be given moderate, rather than significant, weight because the information is sometimes inextricably entwined with personal information about other people apart from the Applicant's children.

[17]

Public interest considerations against disclosure

Section 14(2) of the GIPA Act limits the public interest considerations against disclosure to those listed in the Table to s 14: Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [16]. Section 105(1) places the burden on the Respondent of establishing in the current proceedings the justification for refusing access to the government information sought by the Applicant.
As mentioned above, the Respondent relies on the following considerations listed in cll 1(f) and (h) and 2(b) of the Table to s 14: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (f) prejudice the effective exercise by an agency of the agency's functions, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed), … 2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, …
It is convenient to refer to these considerations respectively as consideration 1(f), consideration 1(h) and consideration 2(b).
Three general observations can be made about these considerations.
The first observation is that each consideration requires the agency (or the Tribunal on an administrative review) to determine whether the disclosure of the information concerned could reasonably be expected to have the effect mentioned in the consideration (whether in a particular case or generally). Whether an effect could reasonably be expected is a question of fact requiring an objective assessment from the standpoint of a reasonable administrator: Taylor at [23]. The Appeal Panel in Newcastle City Council v Newcastle East Residents Action Group Inc [2018] NSWCATAP 254 at [59], after surveying the relevant authorities, summarised the relevant principles to be applied as follows: "Based on these authorities when considering the evidence on which it is asserted that disclosure 'could reasonably be expected' to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."
That said, the Tribunal should not set an overly demanding evidential requirement given the administrative nature of the decision and the abstract and hypothetical subject matter raised by the considerations listed in s 14 of the GIPA Act: Searle at [61]. In appropriate circumstances, an inference may be drawn based on a natural implication. For example, courts and tribunals often rely on a natural implication, without direct evidence from the providers of confidential information, that the future flow of confidential information to a recipient is likely to be adversely affected by the recipient disclosing such information to others: Searle at [64].
The second observation is that the effects are not limited to effects in a particular case; they extend to effects of a general or systemic nature. This is because the expression "reasonably be expected to have [the effect concerned]" is conditioned by "(whether in a particular case or generally)". As was noted in Camilleri at [37], "the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged". Section 14 questions often need to be examined at a broader operational level: Camilleri at [26]. Many of the s 14 considerations are considerations relating to the conduct of the business of government: Camilleri at [29]. Considerations 1(f) and 1(h) are considerations of this kind. Consideration 2(b), which relates to the conduct of law enforcement, also relates to a core governmental function.
The third observation is that each of the effects involve "prejudice" to particular functions exercised by the agency concerned. The word "prejudice" should be given its ordinary meaning, which is to cause detriment or disadvantage or impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]; Seale at [68(5)].
Finally, I have approached my consideration of the public interest considerations against disclosure on which the Respondent relies with the healthy scepticism counselled by both McCabe at [36] and Searle at [34] (and advocated by the Applicant) concerning the potential for self-serving reliance on such considerations by an agency.

[18]

Findings concerning effects disclosure could reasonably be expected to have

It is appropriate to begin by making findings concerning the effects of the disclosure of the information to which the Access Refusal Decisions relate.
As mentioned above, Chief Inspector Holgate conceded in cross-examination that his evidence was focused on general or systemic effects rather than the Applicant's personal circumstances. The Chief Inspector's evidence is nevertheless relevant in assessing whether the effects mentioned in considerations 1(f), 1(h) and 2(b) could reasonably be expected if the information sought by the Applicant was disclosed. However, as noted above, this is subject to the principle that prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses. Such inferences can, in appropriate cases, be based on natural implications even in the absence of direct evidence.
In the open version of the Second Holgate Affidavit (at pars 26−30), Chief Inspector Holgate expresses concerns about the effect of disclosing reverse COPS audit reports and the supplemental information. These largely reiterate concerns previously expressed in the open version of the First Holgate Affidavit at pars 95−101. In summary, the concerns are as follows: 1. The disclosure of the reverse COPS audit reports could alert a person (including the Applicant) about whether or not they are under investigation and, if so, the nature of the investigation and the stage of the investigation (based on the frequency and number of the accesses to the COPS events that have been undertaken). This concern also extends to the supplementary information because it could alert the person to whom it is disclosed that an officer from a particular crime squad looked at a particular COPS event. This could allow the person to infer that the person was being investigated for a kind of offence that the squad is tasked to investigate. The converse inference could also be drawn if the information disclosed indicated no access by a member of a particular crime squad. The drawing of both kinds of inference could impede criminal investigations. 2. The disclosure of the information could reveal details of confidential law enforcement methodologies and methods of intelligence and evidence collection. 3. The release of an audit report could 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 was reported by that person to the NSWPF. 4. Members of the public, and internal police complainants, trust that the information they give the police will be kept confidential. If the public were aware that a person could be given information that may lead to them being identified as an informant, members of the public would be reluctant to assist police in future investigations. The NSWPF relies heavily on information provided by members of the public and its ability to exercise its law enforcement functions would be significantly affected. 5. The disclosure of the information could lead to threats to the lives and wellbeing of officers of the NSWPF if a person becomes aware that their conduct is being investigated by a particular officer or NSWPF crime unit. This could include cyber abuse by means of social media, particularly if the officer has a social media presence and can be directly messaged. The Chief Inspector indicates that he is aware of several instances of cyber abuse of officers in recent years.
There is also confidential information given by the Chief Inspector in support of his concerns, particularly in relation to the second concern mentioned above.
[NOT FOR PUBLICATION]
The concerns expressed by Chief Inspector Holgate about the potential effects of disclosure are not in themselves evidence that the disclosure of the information sought by the Applicant could reasonably be expected to have the effects to which the Chief Inspector refers. They are largely expressions of opinion.
Nevertheless, I consider that many of Chief Inspector Holgate's concerns are concerns about the effects of disclosure that a reasonable administrator would have based on the material before me (coupled with inferences and natural implications to be drawn from that material). In this regard, I have taken into account that it is increasing possible, by means of internet searches and social media connections, for a great deal of additional information about a person to become discoverable based on only a modicum of primary information about the person such as their name or position at work. The use of such electronic tools for this purpose is a manifestation of what is sometimes called the "mosaic effect". The Appeal Panel in Barrett No 1 at [92] described the effect as follows: "This is the phenomenon whereby access applicants build up a picture of the whole, through completing parts of the mosaic, by means such as access applications, other forms of research and inquiry, and pre-existing personal knowledge of the circumstances of interest. They might thereby be able obtain an understanding of, for example, the extent to which the applicant's activities are being monitored and the types of information being compiled."
It seems to me appropriate for the Tribunal to take notice of this effect as a relevant matter by analogy with the approach of the courts in taking judicial notice of matters of common knowledge: cf Evidence Act 1995 (NSW), s 144. It also seems to me that such an approach is consistent with the guidance of the Appeal Panel in Seale at [61] not to impose an overly demanding evidential requirement given the administrative nature of decision the Tribunal is required to make.
With this in mind, I find as follows about the effects that could reasonably be expected to happen if the information sought by the Applicant is disclosed: 1. The disclosure of the information could indicate whether persons (including the Applicant and the Applicant's children) have been or continue to be under investigation by the NSWPF. Although the reverse COPS audit reports are at a high level of abstraction, they nevertheless provide information about officers who have accessed the relevant COPS events and how frequently they have done so. This can support inferences about the extent of any investigation and, when coupled with the supplementary material, could also indicate the nature of the investigation. 2. In this regard, I find the COPS code distinction is an unsupportable basis for distinguishing between what should or should not be withheld. Access to COPS for the purposes of making an enquiry about an entry is revealed by an access report regardless of the code used to indicate the type of access. An inference of investigation can still be drawn even if the code used does not indicate deletions or updating. 3. Knowledge concerning whether or not an investigation is on foot could alter the behaviour of the person being investigated and thereby impact an investigation or, at the very least, encourage conduct because it is not currently being investigated. 4. There can be no doubt that people who assist police by providing information generally expect some degree of confidentiality about their assistance (at least until an offender is charged), particularly when they do so as police informants. COPS is used as the central repository for much of this kind of information. It is a natural implication, even in the absence of direct evidence, that the release of information from COPS of the kind sought by the Applicant could discourage people from providing such assistance (or at least providing full and frank information) because their identities might become discoverable. 5. Information such as the audit reports, particularly when coupled with the supplementary material, could expose the officers concerned and their units to inappropriate approaches, intimidation or other welfare dangers because their identities and investigations could become discoverable by those being investigated.
[NOT FOR PUBLICATION]

[19]

Application of findings to considerations 1(f), 1(h) and 2(b)

In my view, considerations 1(f) and 2(b) are closely related. Both considerations are concerned with the effect of disclosure on the exercise of an agency's functions, with consideration 2(b) focusing on law enforcement functions. The primary functions of the Respondent and the NSWPF are law enforcement functions. Based on my findings, I am satisfied that both these considerations are made out. The exercise of functions by the NSWPF could be prejudiced by the disclosure in the sense of impeding, or derogating from, the exercise of the functions. Moreover, I would give each consideration very significant weight given the vital importance that the proper exercise of these functions has for the wellbeing of the State.
In relation to consideration 1(h), the Respondent points to the decision in Commissioner of Police (NSW) v Barrett (No 2) [2016] NSWCATAP 86 (Barrett No 2). The Respondent contends that the Appeal Panel in Barrett No 2 at [49]−[56] accepted that the release of reverse COPS audit reports could reasonably be expected to have the effect of prejudicing the effectiveness of any audit because it would put at risk the security, integrity and confidentiality of the auditing processes and standards of the agency: Respondent's 2022 Submissions at par 45. In addition, Chief Inspector Holgate expresses the view in the open version of the First Holgate Affidavit at par 97(c) that if corrupt police officers were provided with audit information and discovered that their commander or officers attached to Professional Standards Command have accessed their details in COPS, they could deduce that they were the subject of an internal investigation. The Chief Inspector suggests officers could, as a result, warn co-offenders or dispose of evidence.
Barrett No 2 is relevantly analogous to the current proceedings. That case concerned access applications made by applicants who alleged that they were being targeted by police. The information sought was described at [46] as requiring a "reverse audit" of COPS events concerning the applicants. In the current proceedings, the Applicant alleges that officers of the NSWPF engaged in misconduct and other improper conduct in relation to the Applicant and the Applicant's children. Given this context, the information to which the Access Refusal Decisions relate could disclose patterns of access that are referable to an internal investigation of the impugned conduct. In that sense, the disclosure of the information could reasonably be expected to have the effect of prejudicing any audit, test, investigation or review conducted by the NSWPF of the impugned conduct by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). I would therefore also give this consideration significant weight, just as it was in Barrett No 2.

[20]

Do the public interest considerations against disclosure outweigh those in favour of disclosure?

The balancing of competing public interest considerations required by s 13 of the GIPA Act "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].
In balancing the competing public interests, I have applied the principles stated in s 15 of the GIPA Act, including the principles that the fact the disclosure might cause governmental embarrassment or loss of confidence, or might be misinterpreted or misunderstood by any person, are irrelevant and must not be taken into account. I have also taken into account the principle that an agency (and, therefore the Tribunal on an administrative review) must exercise its functions so as to promote the object of the GIPA. As mentioned above, the object of the Act is to open government information to the public.
I have also had regard to the personal factors of the Access Application as I am entitled to do by s 55 of the GIPA Act. Among those factors is an applicant's motivation for an access application and the applicant's relationship with any other person.
The Access Application appears to have been partly motivated by the Applicant's concerns about the welfare of the Applicant's children, which the Applicant alleges were not properly investigated by the NSWPF. Also, as was noted in the reasons given for both Access Refusal Decisions, "[the Applicant's] motive for seeking such information may relate to a 'potential malicious prosecution and/or defamation action' by [the Applicant] against the NSW Police Force." The reasons also note that some of the information may assist the Applicant in determining whether the Applicant would like to commence litigation.
Section 55(2) enables me to take personal factors into account where appropriate as factors in favour of providing the Applicant with access to the information sought. Section 55(3) also allows me to take personal factors into account, if and to the extent they are relevant, in deciding whether the disclosure of the information could reasonably be expected to have the effect mentioned in consideration cl 2(b) against disclosure. However, s 55(3) precludes me from taking these factors into account in deciding whether the disclosure could reasonably be expected to have the effects mentioned in considerations 1(f) and 1(h) against disclosure. In my view, the personal factors of the Access Application are more relevant as factors in favour of disclosure rather than against disclosure. However, I do not consider them to be significant factors.
Having taken these principles and factors into account, I am nonetheless satisfied that the Respondent has discharged the burden imposed by s 105 of the GIPA Act to justify denying the Applicant access to the information to which the Access Refusal Decisions relate.
I have found that the Respondent has made out all 3 of the public interest considerations against disclosure on which the Respondent relies. I have given significant weight to each of these considerations.
In relation to the public interest considerations in favour of disclosure on which the Applicant relies, I have given 2 of those public interests moderate weight. In relation to the general public interest in favour of disclosure stated in s 12(1) of the GIPA Act, the Appeal Panel noted in Barrett No 2 at [52] that the weight to be given to that interest will vary significantly depending on the functions of the agency concerned and the character of the information. The functions involved here, as in Barrett No 2, are law enforcement functions. In my view, it is inappropriate to treat the general public interest in favour of disclosure as dispositive, especially when balanced against the three public interests against disclosure to which I have given significant weight.
For these reasons, I find that on balance there is an overriding public interest against disclosure of the information to which the Access Refusal Decisions relate.

Parties

Applicant/Plaintiff:

DYD

Respondent/Defendant:

Commissioner of Police, NSW Police Force

Legislation Cited (8)

with definition of "legislative instrument" in Sch 4, cl 1). The Police Act 1990(NSW)

Evidence Act 1995(NSW)

Government Information (Public Access) Act 2009(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Administrative Decisions Review Act 1997(NSW)

Interpretation Act 1987(NSW)

Police Act 1990(NSW)

Privacy and Personal Information Protection Act 1998(NSW)

Cases Cited (25)

Taylor v Destination NSW [2017] NSWCATAD 272 Transport for NSW v Searle [2018] NSWCATAP 93 Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 Yee v Medical Council of NSW [2017] NSWCATAD 370 Texts Cited: None Category: Principal judgment Parties: DYD (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: D Birch (Respondent)

Overview

The current proceedings concern an application (the Administrative Review Application) made by the Applicant for an administrative review by the Tribunal of decisions of the Commissioner of Police (the Respondent). The decisions involve the refusal of the Respondent to give the Applicant access to certain government information held by the Respondent. The Administrative Review Application has generated several earlier decisions by the Tribunal and appeals against those decisions.
Both the Applicant's access application and the Administrative Review Application were made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The information in dispute in the current proceedings concerns information derived from the Computerised Operational Policing System (COPS) used by the NSW Police Force (NSWPF).
The Applicant's name has been anonymised in the current proceedings because of an order previously made by the Tribunal. The order prohibits the publication of the name of the Applicant or any family member of the Applicant in relation to proceedings concerning the Administrative Review Application.
The Tribunal has to date been careful to limit the possibility of revealing the identity of the Applicant or the Applicant's family members when it gives reasons. I will continue to take this approach in my reasons. In addition, I recognise that I have a duty not to disclose any information for which there is an overriding public interest against disclosure or information about evidence received or arguments heard in the absence of the public and the Applicant: GIPA Act, s 107(1) and (3). To this end, an order will be made pursuant to s64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to prohibit the publication or disclosure to the Applicant and the public of the paragraphs in these reasons marked "NOT FOR PUBLICATION".

Statutory regime concerning access to government information

The object of the GIPA Act is to open government information to the public by, among other things, giving members of the public an enforceable right to access government information and restricting access to such information only when there is an overriding public interest against disclosure: GIPA Act, s 3(1)(b) and (c). Section 3(2)(a) provides that it is the intention of Parliament for the GIPA Act to be interpreted and applied so as to further this object: see also Interpretation Act 1987 (NSW), s 33.
Government information is defined to mean information contained in a record held by an agency: GIPA Act, s 4(1) (definition of "government information"). An agency is defined to include a public office: GIPA Act, s 4(1) (definition of "agency"). A public office includes an office established or continued for a public purpose by or under the provisions of a Public Act: GIPA Act, Sch 4, cl 3(1) (read with definition of "legislative instrument" in Sch 4, cl 1). The Police Act 1990 (NSW) establishes the office held by the Respondent. The NSWPF is also an agency in its capacity as a public authority: GIPA Act, s 4(1) (definition of "agency") and Sch 4, cl 2(1) (definition of "public authority"). There is no dispute that the information in dispute in the current proceedings is government information.
Section 9(1) of the GIPA Act provides 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 Pt 4 of that Act unless there is an overriding public interest against disclosure of the information.
Section 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that nothing in the GIPA Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Section 12(2) includes a note with non-exhaustive examples of public interest considerations in favour of disclosure.
Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1 to the Act. Section 14(2) then provides that the considerations listed in the Table to s 14 are the only other public interest considerations that may be taken into account as public interest considerations against disclosure.
Section 13 sets out the test to be applied to work out whether there is an overriding public interest against disclosure of government information. It provides that there is an overriding public interest against disclosure 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.
It is not necessary to engage in the balancing exercise required by s 13 of the GIPA Act if there is a conclusive presumption against disclosure of government information because access cannot be given to the information: Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253 at [21]; Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41]. The Respondent does not submit that there is any conclusive presumption against disclosure applicable to the current proceedings. Accordingly, it is necessary for the Tribunal in these proceedings to engage in the balancing exercise required by s 13 having regard to the relevant public interest considerations both in favour and against disclosure.
Section 100 of the GIPA Act provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of the decision.
A reviewable decision of an agency includes a decision of the agency to refuse to deal with an access application (including a refusal decision that is deemed to have been made) or a decision to refuse to provide access to government information in response to an access application: GIPA Act, s 80(c) and (d). Section 63 provides that an agency is deemed to have decided to refuse an access application if the decision is not made within time. If such a decision is the subject of an administrative review, s 108(1) enables the Tribunal, on the application of an agency, to make an order allowing the agency further time to decide the access application.