ECN v Commissioner of Police

ECN v Commissioner of Police - [2020] NSWCATAD 153 - NSWCATAD 2020 case summary — Zoe

[10]

Evidence of Superintendent and Commander Roptell

Superintendent and Commander Roptell (SI Roptell) is the delegate of the respondent for complaints under Pt 8A of the Police Act in the area in which the applicant was arrested. SI Roptell is also the Chair of the relevant Complaints Management Team (CMT) formed to oversee such complaints.
SI Roptell was called as witness during the hearing. Relevantly for this matter, in cross-examination, SI Roptell: 1. Accepted that Pt 8A of the Police Act sets out requirements on the respondent for the carrying out of investigations and that the investigative requirements encompass the work of the CMT. 2. Agreed that the NSW Police Force Complaint Handling Guidelines - Professional Standards Command dated February 2016 (Guidelines) require, amongst other things, the relevant police officer carrying out the investigation to obtain all evidence relevant to an investigation, undertake an analysis of evidence and prepare an investigation report with logical findings flowing from the investigative work. 3. Agreed that the CMT is required to take minutes and that CMT undertakes a quality review process with respect to investigations. 4. Accepted that all officers of the CMT and the officer assigned to carry out the investigation are all officers who have taken the oath in cl 7 of the Police Regulation 2015 (NSW) (Police Regulation). 5. Accepted that the oath in the Police Regulation requires officers to discharge their duties (including as witnesses for an investigation under Pt 8A of the Police Act) according to law regardless of whether information arising from the discharge of these duties may become publicly known. 6. Agreed that police officers are expected to give factual answers (although SI Roptell remarked that police officers may chose not to answer on the basis that an answer may incriminate them). 7. Stated that he considered that police officers carrying out investigative functions under Pt 8A of the Police Act would duly carry out their role regardless of whether information arising from the discharge of these functions may become publicly known.
In re-examination, SI Roptell: 1. Stated that, in addition to discussing evidence obtained for an investigation, the CMT also discussed a range of other issues arising from an investigation including disciplinary matters, conduct issues, the welfare of police officers and broader issues that may affect police operations (such as future investigative strategies). 2. Stated that police officers the subject of an investigation would have an expectation that their personal information would be protected. 3. Stated that the welfare of police officers could be impacted by the release of information in investigation of allegations (which may or may not be sustained) and this is particularly the case in conduct matters.

[13]

Submissions of the applicant

The applicant's oral and written submissions included the following (and I paraphrase and summarise): 1. If there is information contained in a document that the Tribunal decides should be disclosed to the applicant pursuant to the GIPA Act, then that information should be disclosed even if other information in the same document needs to be redacted so it is not disclosed. 2. The GIPA Act requires the Tribunal to consider public interest against disclosure in respect of each piece of information based on the evidence before the Tribunal. 3. Claims of "prejudice" for the purposes of relevant parts of the Table must be based on "real and substantial grounds" and it will not be sufficient for the decision maker to "proffer a view" (Searle v Transport for NSW [2018] NSWCATAP 93 at 68-(5)) and if the opinion of a witness on these matters is not reasonably held, it should be rejected (McKinnon v Blacktown City Council [2012] NSWADT 44 at [56]-[58]). 4. A significant amount of information was disclosed to the applicant before the hearing, which the applicant submits was collected during the investigation and must have formed the basis of the investigator's findings. Some of this information was disclosed to the applicant in respondent's written submissions filed for the hearing and the applicant was also provided with copies of the following before the hearing: 1. CCTV footage from the place of the applicant's arrest. 2. Body worn footage (and transcript of the footage) from the Arresting Officer and several other police officers involved in the arrest of the applicant. 3. Signed statements of the Arresting Officer and another police officer involved in the arrest of the applicant. 4. Signed witness statements of seven police officers and six other persons obtained after the respondent commenced an investigation into the applicant's complaint. 1. The applicant is the complainant under Pt 8A of the Police Act and knows the details of her complaint. The applicant submits this includes the "potential criminal offences and alleged serious misconduct" canvassed in the investigation's terms of reference. 2. The applicant is aware that the allegations in her complaint were not sustained for the reasons set out in a letter from the respondent dated 5 July 2019 (No Further Action Letter). 3. If information has been already been disclosed to the applicant, it cannot be disclosed or revealed by giving the applicant access to it under the GIPA Act. Further, these prior disclosures reduce the weight that should be accorded to the public interest considerations against disclosure. 4. The secrecy provisions in Pt 14 of the Law Enforcement Conduct Commission Act 2016 (NSW) (LECC Act) and Pt 8A of the Police Act are not relevant in this matter. 5. The applicant's personal factors that should be given significant weight. These include: 1. the applicant's interest in receiving a full explanation of how her complaint was handled. In this regard, the applicant submits that she considers the No Further Action Letter did not adequately explain why her complaint was dismissed. 2. The public interest in ensuring that the respondent acts fairly, with lawful authority and in compliance with appropriate guidelines. 3. The public interest in ensuring that Aboriginal people, such as the applicant, are treated appropriately by the respondent while in custody and that complaints are fairly and thoroughly resolved. 1. The applicant's written and oral submissions also addressed numerous other legal arguments relevant to the overriding public interests against disclosure claimed by the respondent and to assist the Tribunal.

[14]

Submissions of the respondent

The respondent's oral and written submissions included the following (and I paraphrase and summarise): 1. Pursuant to s 123 of the Police Act, complaints under Pt 8A of the Police Act are subject to the LECC Act. Complaints that allege criminal offending and/or serious misconduct are notified to the Law Enforcement Conduct Commission. 2. Complaints under Pt 8A of the Police Act are registered and managed in a secure information system. The Guideline stipulates that information obtained for an investigation under Pt 8A is strictly confidential. This is the basis on which police officers investigate allegations and participate in the investigative process. 3. The respondent does not agree that significant amounts of information in the Complaint Documents or the LPP Information have already been disclosed to the respondent. 4. The Tribunal has accepted on many occasions that the release of information generated in the investigation of "internal complaints or allegations of misconduct in the workplace" could reasonably be expected to prejudice agencies' functions in conducting such investigations and in performing their human resource functions. 5. In Sheehy v Commissioner of Police [2018] NSWCATAD 73, the Tribunal found that cl 1(d) of the Table applied to an investigation under Pt 8A of the Police Act. 6. In other relevant decisions, the Tribunal has previously found that employees may feel inhibited in providing frank and honest views on issues relating to complaints about employees if they are aware that the information may be disclosed. 7. Complaints involving conduct issues raise particularly sensitive issues that may result in disciplinary action if substantiated. Confidentiality of the investigative process allows these sensitive matters to be investigated and action taken, or the allegation dismissed, according to the evidence. 8. The respondent's written and oral submissions also addressed numerous other legal arguments relevant to the overriding public interests against disclosure claimed by the respondent and to assist the Tribunal

[20]

Document 1 - Letter to the Arresting Officer

The respondent determined not to disclose document 1 on the basis of cls 1(d), 1(f) and 3(a) of the Table.
I accept the evidence of SI Roptell that investigations involving the conduct of serving police officers under Pt 8A of the Police Act are particularly sensitive due to the matters raised and the potential impacts for all parties involved. I accept the evidence of SI Roptell (and as prescribed by section 4.2 of the Guideline) that the investigative process conducted by the respondent is confidential and I find that this is, in part, to protect the complainant, witnesses and subjects of an investigation while all relevant evidence is obtained and assessed.
I also accept the evidence of SI Roptell that police officers have an expectation that personal information obtained during an investigation into the relevant police officer's conduct would not be publicly disclosed (in this regard and from my review of the information before the Tribunal, I am satisfied that the personal information contained in document 1 has not, for the purposes of the definition of "reveal" in cl 1 of Sch 4 to the Act, been publicly disclosed).
In Jenkinson v Department of Education and Communities [2013] NSWADT 280, the Tribunal accepted that disclosure of information supplied during an investigation of a complaint could reasonably be expected to prejudice the effective exercise by the Department of its functions in respect of the health and wellbeing of staff. I come to the same conclusion in respect document 1 as a document supplied in the course of an investigation under Pt 8A of the Police Act.
In Sheehy v Commissioner of Police [2018] NSWCATAD 73 (Sheehy) the applicants sought access to information arising from an investigation under Pt 8 of the Police Act and at [65] the Tribunal found that the "disclosure of these internal investigation files would prejudice the future effectiveness of internal investigations into police officers in the future". I come to the same conclusion in respect of document 1 given the evidence and facts in this matter.
In my view the disclosure of document 1 could not reasonably be expected to prejudice the supply of confidential information to the respondent for the purposes of cls 1(d) of the Table. Document 1 is a letter issued to the Arresting Officer. It is not information supplied to the respondent. However, for the reasons set out above, I do find that the disclosure of document 1 could reasonably be expected to: 1. Prejudice the effective exercise of the respondent's functions for the purpose of cl 1(f) of the Table. 2. Reveal personal information for the purpose of cl 3(a) of the Table.
I now turn to the balancing exercise required by s 13 of the GIPA Act. The public interest consideration in cl 1(f) should be given significant weight as the function supports the effective investigation of conduct matters involving public officials with substantial responsibilities. However, and as noted in Hurst, the balancing exercise involve questions of fact and degree, requiring the weighing of competing matters. I have reviewed document 1 and compared the information contained in it to the information which has already been disclosed to the applicant by the No Further Action Letter, in particular. In Eyes v Wyong Shire Council [2015] NSWCATAD 214, the Tribunal considered the effect of information that had been previously disclosed and stated at [42] that the weight to be attributed to the public interest considerations against disclosure must be very low. In addition, in this matter the applicant is the complainant under Pt 8A of the Police Act and is aware of the identity of the Arresting Officer, the allegations made and (through information disclosed before the hearing) the finding that the allegations were not substantiated. In view of these prior disclosures, the consideration against disclosure should be given little weight. On balance I consider that the public interest of informing the public about the operations of the respondent and the applicant's interest in having information regarding her complaint should be given greater weight. Subject to my comment below regarding cl 3(a), document 1 should be disclosed.
I consider that the public interest in not revealing personal information should be given greater weight than the public interest and applicant's personal factors in favour of disclosing the information. The relevant personal information arises from the sensitive matter of allegations about conduct matters and has not been publicly revealed. Accordingly, the personal information contained in document in document 1 is to be redacted before the document is disclosed.

[21]

Document 2 - Investigation report

The respondent determined not to disclose document 2 on the basis of cls 1(d), 1(f), 1(h), 2(b) and 3(a) of the Table.
I accept the evidence of SI Roptell that police officers would carry out their duties (including as an investigator under Pt 8A of the Police Act and as a witness for such an investigation) according to law and regardless of whether information arising from the discharge of these duties may become publicly known. An investigation under Pt 8A of the Police Act also requires information from members of the public who are under no obligation to provide information. In Robinson v Department of Health [2002] NSWADT 222 at [71], the Tribunal held that the effectiveness of an agency's investigative functions depends on the co-operation of those who have information relevant to the investigation. In this regard, I accept the written evidence of SI Roptell that the ongoing confidentiality of the information "encourages the provision of voluntary and open and honest information".
For the reasons above and as also set set out in relation to document 1, I am satisfied that document 2 was prepared by the respondent as a confidential document and that document 2 facilitates the effective exercise of the respondent's functions.
I also accept the evidence of SI Roptell that investigation reports will identify lines of enquiry and potential conduct issues that may not be apparent from the allegations received by the respondent in order to identify additional matters for investigation and broader operational issues for the respondent. In considering cl 2(b) of the Table, the Tribunal stated in McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 6 at [97]: "the basis of this consideration is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods. There is no need for an actual contravention of the law since the clause encompasses both actual and possible contraventions. The consideration is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law."
From my review of the information before the Tribunal, I am satisfied that the personal information contained in document 2 has not been publicly disclosed and based on the evidence of SI Roptell, I accept that police officers have an expectation that their personal information will be treated confidentially.
I do not accept that the disclosure of document 2 could reasonably be expected to prejudice the conduct, effectiveness or integrity of any investigation for the purposes of cl 1(h). The complainant is the applicant and made the allegations the subject of the investigation. The Guideline sets out how investigations are to be conducted in some detail. Further, the investigating officer assigned to carry out the investigation will, for the reasons set out above, carry out his or her duties without regard to the risk of public disclosure. However, I do find that the disclosure of document 2 could reasonably be expected to: 1. Prejudice the supply of information that facilitates the effective exercise of the respondent's functions for the purposes of cl 1(d) of the Table to the extent that the information is required from members of the public. I do not accept this prejudice arises with respect to information provided by police officers given the evidence before the Tribunal that they would perform their duties and functions despite a risk of public disclosure. 2. Prejudice the effective exercise of the respondent's functions for the purposes of cl 1(f) of the Table for the reasons set out above and in relation to document 1. 3. Prejudice the prevention or investigation of a possible contravention of the law by disclosing investigatory methods that are not publicly known for the purposes of cl 2(b). 4. Reveal personal information for the purposes of cl 3(a) of the Table.
Turning to the balancing exercise required by s 13 of the GIPA Act, each of the public interests against disclosure outlined above are significant. I have reviewed document 2 and the information disclosed to the applicant before the hearing. From my review I have determined that almost all of the information contained in the section entitled "Evidence" has already been disclosed to the applicant. For the reason stated in relation to document 1, the weight to be attributed to these considerations should be very low. On balance, I consider that the public interest of informing the public about the operations of the respondent and the applicant's interest in having information regarding her complaint should be given greater weight than the public interests against disclosure in cls 1(f), 1(d) and 2(b) of the Table.
On balance, I consider that the public interests against disclosure should be given greater weight than those in favour of disclosure in respect of the remaining sections of document 2 in respect of which the relevant information has not been disclosed. In my view, greater weight should be given to the public interests because they support robust investigation processes that allow allegations of potential misconduct to be investigated on a confidential basis and to ensure relevant information is provided from all sources. In addition, the information contained in the sections of document 3 entitled "Issue 3" and "Other Issues" do not directly relate to an allegation raised in the Complaint Letter and, in my view, this reduces the weight that should be given to the public interests in favour of disclosure of these sections of document 2.
For the same reasons as identified in respect of document 1, the personal information contained in document 2 is to be redacted before the document is disclosed.

[22]

Document 3 - Commander's certification

The respondent determined not to disclose document 3 on the basis of cls 1(d) and 1(f) of the Table and cl 5 of Sch 1 to the GIPA Act.
For the reason set out in relation to document 2, I do not consider that the disclosure of document 3 would prejudice the supply of information of this kind in future - police officers will carry out their duties regardless of whether information may be disclosed at a later time. In addition, document 3 is a certification from a senior manager and was prepared as part of that person's employment duties such that the supply of the information could not reasonably be expected to be prejudiced (see TW v TX [2005] NSWADT 262 at [23]). Given this, I find that the disclosure of document 3 could not reasonably be expected to have the effect set out in cl 1(d) of the Table.
I do consider that the disclosure of document 3 could reasonably be expected to prejudice the effective exercise of the respondent's functions for the purpose of cl 1(f) of the Table for the reasons set out above in relation to documents 1 and 2.
Turning to the balancing exercise required by s 13 of the GIPA Act, I consider that the public interests in favour of disclosure outweigh those against disclosure. While cl 1(f) is a significant consideration, the weight to be attributed to it must be very low where the information contained in document 3 has already been disclosed. I have reviewed document 3 and am satisfied that almost all of the information contained in it has been disclosed to the applicant.
However, certain information contained in document 3: 1. Sets out the conclusion of legal advice and identifies that conclusion with respect to issues discussed in document 2. I consider that this information is subject to a conclusive presumption against disclosure pursuant to cl 5 of Sch 1 to the GIPA Act and as discussed further below. This information should not be disclosed. 2. Contains personal information and for the same reasons as identified in respect of document 1, the personal information contained in document 3 is to be redacted before the document is disclosed.

[23]

Document 4 - Minutes of CMT meetings

The respondent determined not to disclose document 4 on the basis of cls 1(d), 1(e), 1(f) of the Table and cl 5 of Sch 1 to the GIPA Act.
The Guideline sets out the role of the CMT. The CMT provides oversight of the investigation. The CMT provides an advisory function and is intended to improve the quality of investigations under Pt 8A of the Police Act.
I accept that police officers will perform their duties as directed or required at law regardless of whether information may be disclosed at a later time. However, I do not consider that SI Roptell's evidence in this regard can, logically, be taken to apply without limits. In my view, the effective participation by officers involved in the investigation of other officers requires such police officers to offer lines of enquiry or investigative strategies to enhance the effectiveness of the investigation based on their personal experience and knowledge. In this regard, I accept SI Roptell's written evidence which states that it is of critical importance to the success of the CMT meetings that members are able to discuss complaints freely and without concern that the discussions will be disclosed.
In Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [106] the Tribunal accepted that the disclosure of a deliberative process which would result in staff feeling inhibited in providing frank and honest views, or declining to participate in the process, outweighed the potential benefit from the disclosure of the withheld information. In McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 at [84], the Tribunal came to a similar conclusion with respect to the deliberations of the CMT in respect of an investigation under Pt 8A of the Police Act.
In my view, the disclosure of document 4 could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given in such a way as to prejudice that deliberative process for the purposes of cl 1(e) of the Table because police officers would be less willing to contribute and this would impede the function of the CMT and investigations.
Turning to the balancing exercise required by s 13 of the GIPA Act, I consider that a public interest that supports the effective oversight of complaints under Pt 8A of the Police Act should be given significant weight. From my review of the information before the Tribunal, the information contained in document 4 has not previously been disclosed to the applicant. On balance, I consider that the applicant's personal interests and the public interest in the operations of agencies and how they will deal with members of the public should be given less weight. Accordingly, document 4 should not be disclosed.
As document 4 is a consolidation of documents 6, 7, 8, 10, 11, 12, 13 and 14, my decision in respect of document 4 applies to these documents as well.

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Judgment (37 paragraphs)

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