Eggleton v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-05-13

210 Smith v Commissioner of Police [2012] NSWADT 85 Taylor v Chief Inspector, RSPCA [1999] NSWADT 23 Taylor v Destination NSW [2017] NSWCATAD 272 Turner v Corrective Services NSW (No 2) [2013] NSWADT 232 Willner v City of Port Phillip (Review and Regulation) [2015] VCAT 1320 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 YG and GG v Minister for Community Services [2002] NSWCA 247 Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 Texts Cited: None Category: Principal judgment Parties: Rickie Eggleton (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self-represented) Maddocks Lawyers (Respondent) File Number(s): 2021/00207887 Publication restriction: None

Background

These proceedings concern a request that the applicant made to the Commissioner of Police, NSW Police Force (the respondent) for the release of documents under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act) relating to himself in relation to incidents that occurred while he was an inmate at several correctional facilities operated by the Department of Corrective Services (CSNSW) between 10 July 2017 and 19 January 2020.
On 1 March 2021, the respondent received the applicant's access application. On 4 May 2021, it issued its original decision, which was to provide access to the requested information, except where it was determined that there was an overriding public interest against disclosure. However, it also decided that it did not hold some of the requested information.

Procedural Directions

On 30 August 2021, Senior Member McAteer conducted a case conference. He remitted the matter to the respondent for reconsideration and listed the matter for further case conference on 1 November 2021.
On 1 November 2021, the applicant updated his access request and sought access to the following information: (1) Information provided by a third party at page 54 of the original decision; (2) NSW Department of Corrective Services Incident Details at page 55 of the original decision; (3) Witness report at page 58 of the original decision; (4) Event report E6563465 at pages 72-80 of the original decision (not including personal information such as dates of birth or tattoos etc); (5) Event report E71030430 at pages 92-102 of the original decision (not including personal information such as dates of birth or tattoos etc); (6) Police statement at pages 109-112 of the original decision; (7) Witness statements at pages 115-117 of the original decision; (8) Incident/witness report at page 126 of the original decision; (9) Photographs at pages 127-130 of the original decision (the photographs have already been disclosed in black and white however you have sought the photograph in colour); (10) Alleged Assault/Incident Form at pages 131-132 of the original decision; (11) Evidence Exhibit Book at page 136 of the original decision (including release of officers names and rank); (12) Court Attendance Notice at page 141 of the original decision; (13) E71030430 - CCTV footage; (14) E69647047 - CCTV footage; (15) E69255984 - CCTV footage; (16) E65634765 - CCTV footage; and (17) The outcome of investigation E71030430.

Respondent's further decision upon remittal

On 11 October 2021, the respondent filed and served its decision in response to the applicant's updated access request. It decided that there are public interest considerations against disclosure which should be given significant weight, namely: cll 1(d), 1(e), 1(f) 2(a), 2(h), 3(a) and 3(f). It decided to refuse access to the CCTV footage and also decided against granting the applicant access to view it because he was currently in custody and this was not feasible. It also considered whether the CCTV footage could be edited to delete the personal information of third parties or other sensitive information, but enquiries with the Public Affairs Branch indicated that pixilating the footage would involve: a. for a specialist staff member to pixilate one item (a person) in 5 minutes of basic CCTV footage, they would need to be taken offline for a minimum of one shift (9.5 hours) and an additional half-day for each other item to be pixilated; b. additional time would be needed to review the footage once it has been pixilated; c. pixilation of one five minute clip may take anywhere between a month and three months; c. the current user charges rate would be $145.10 per hour. Based on the current user charges, it was estimated that the pixilation of the requested CCTV footage would cost over $15,888.45 (accounting for at least 25 items to be pixilated).

Further procedural directions

On 1 November 2021, Senior Member Higgins conducted a further case conference, during which the applicant pressed for access to documents that were not disclosed in the remittal decision. The Tribunal ordered the parties to file and serve evidence including statements, documents and submissions and to indicate whether the matter could be determined 'on the papers'. The Tribunal also ordered the respondent to file the following material on a confidential basis by 30 November 2021: (a) Documents considered to be subject to a conclusive overriding public interest against disclosure; and (b) Documents considered to be subject to a non-conclusive overriding public interest against disclosure. The Tribunal noted that, "The applicant does not press access to personal information of fellow inmates. However, he does press access to the names of officers of Corrections facility."

Legal principles

The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The time at which the Tribunal is to determine the correct and preferable decision is the time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

In respect of access applications, s 9 (1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
The Notices of Decision dated 4 May 2021, 24 June 2021 and 11 October 2021 are a "reviewable decision" in respect of an access application within the meaning of s 80 of the GIPA Act and is reviewable by the Tribunal under s 100 of the GIPA Act. However, for the purposes of the current application, I am satisfied that the reviewable decision is that dated 11 October 2021.
In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance.
Section 5 of the GIPA Act provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 53. Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This 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.
Section 73 of the GIPA Act requires that access be unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
Section 105 of the GIPA Act places the onus on the agency to establish that its decision was justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]; Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7].

Grounds relied upon by the respondent

The decision dated 11 October 2021 contained a Schedule of Documents that identified the documents (by reference to page numbers) that were not provided to the applicant and the grounds that the respondent relied upon to refuse access. These are set out below.

Public interest considerations against disclosure

The respondent relied upon "public interest considerations" against disclosure under s 14(2) of the GIPA Act and the s 14 Table, namely: 1. Clause 1(d): that disclosure could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the agency's functions; 2. Clause 1(e): that disclosure that disclosure 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 a deliberative process of government or an agency; 3. Clause 1(f): that disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions; 4. Clause 2(a): that disclosure could reasonably be expected to reveal or rend to reveal the identity of an informant or prejudice the future supply of information from an informant; 5. Clause 2(h): that disclosure could reasonably be expected to prejudice the security, discipline or good order of any correctional facility; 6. Clause 3(a): that disclosure could reasonably be expected to reveal an individual's personal information; and 7. Clause 3(f): that disclosure could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.

Submissions and evidence

The respondent filed written submissions dated 30 November 2021 and 23 February 2022, respectively, and Mr Winram made oral submissions.
The applicant filed written submissions dated 10 February 2022 and he made oral submissions at the hearing.
The applicant did not file any evidence. However, during the hearing on 13 May 2022, he advised the Tribunal that on 11 May 2022 he filed an application for leave to issue a Summons to Give Evidence to Ms Christina Kolundzic, which would require her to produce the CD that the respondent alleges is "faulty."
Mr Winram, who appeared for the respondent, objected to the issue of this Summons on the basis that Ms Kolundzic had not provided evidence in the matter. Further, the application was made late and the issue about the "faulty" CD had been known since November 2021. In any event, this was only relevant to the question of whether the respondent had conducted reasonable searches as required by s 53 of the GIPA Act.
The applicant replied that he was unable to apply for leave to issue the Summons at an earlier time because he was in custody and he "was not allowed access" to his paperwork until his release on 6 May 2022.
Having heard the parties' submissions, the Tribunal rejected the application for leave to issue a Summons to Give Evidence to Ms Kolundzic.

The Respondent's evidence

The respondent relied upon the following evidence: (1) Statement of Matthew Smith dated 30 November 2021; and (2) Statement of Matthew Smith dated 22 February 2022. These were admitted into evidence and marked as Exhibits 1 and 2, respectively.
In Ex 1, Mr Smith stated that he is a Senior Advisory Officer for the Infolink Unit of the respondent and was personally responsible for managing and determining the applicant's request for an internal review and the remittal decision dated 11 October 2021. He provided detailed information regarding the respondent's response to the access application and stated that following the initial case conference, he undertook additional searches regarding CCTV footage for COPS event report E65634765 with Auburn PAC. The outcome of those enquiries confirmed: (a) the MMRC Case Manager provided a copy of the footage to NSWPF on a CD; (b) once it was viewed by the officer in charge, the CD was not saved electronically onto NSWPF systems; (c) the CD has since been retrieved from the case file boxes in archives by the A/Executive Officer at Auburn PAC. It is scratched and although attempts were made to view it, the CD did not work.
Mr Smith also conducted further searches for clear and colour photocopies of the photographs in the Incident/Witness reports at pages 127-130 of the original decision and these were disclosed to the applicant in the decision dated 11 October 2021. He also conducted further searches regarding the outcome of the investigation into the assault at Parklea Correctional Centre (COPS event report E71030430), and this was disclosed to the applicant in the decision dated 11 October 2021.
Mr Smith stated that following the initial case conference, where the applicant updated his request for access, he provided relevant documentation to CSNSW for consideration and on 6 October 2021, CSNSW noted concern with the information being disclosed, as it would reveal an individual's personal information (cl 3(a) of the Table in s 14 of the GIPA Act). He annexed correspondence to CSNSW in relation to this issue.in to certain documents. He also provided the evidence upon which the decision not to redact the CCTV footage by way of pixilation was based.
In Ex 2, Mr Smith responded to the applicant's written submissions. He expressly refuted that documentation in relation to the incidents at Hunter Correctional Centre and Parklea Correctional Centre had been previously revealed by way of service of briefs of evidence in the course of criminal justice proceedings. He stated that in relation to each incident, the person of interest entered a plea of guilty and was convicted before the matters proceeded to a contested hearing and no briefs of evidence were prepared or served by the NSWPF.
The applicant notified the respondent that he wished to cross-examine Mr Smith. Accordingly, Mr Smith was called and affirmed.
Mr Smith stated that "yesterday" he met with the applicant at Gosford Police Station to enable him to view the CCTV footage from Parklea Correctional Centre. While there were four separate pieces of footage, only one showed the assault on the applicant (item 13 in the Schedule of Documents). He also stated that in relation to item 14, which the respondent located but refused to grant access to, he believed that the applicant was shown the footage while he was in custody and that subsequent arrangements were made about this. He referred to para 22 of the Respondent's Chronology, which stated: On 17 March 2022, the respondent wrote to the applicant and confirmed it had provided a copy of the CCTV directly to the correctional centre contact to arrange for it to be viewed. The respondent also requested confirmation as to whether the applicant required the matter to be determined at a hearing.
In cross-examination, the applicant asked Mr Smith about the CCTV footage that he was shown "yesterday". Mr Smith replied that there was only one piece of footage from the clinical area, but there were four pieces of coverage regarding the incident at Parklea Correctional Centre. He also stated that there are a total of six CCTV footage files, but he has never been able to get the other two files to work, although he omitted to mention this in his statements or during his meeting with the applicant "yesterday."
In response to a question from the Tribunal, Mr Smith stated that the CCTV files that the applicant viewed "yesterday" were files 1 to 4 (inclusive) of the Table of Documents, relating to: (1) IMSID/6967567001; (2) IMSID/6907567002; (3) IMSID/6907567003 & (4) IMSID/6907567004 which showed the hallway. However files numbered IMSID/6907567005 & IMSID/6907567006 won't play and attempting to play them produces a "file not found" error message.
The applicant asked Mr Smith if there was a backup of these files? He replied "no" and said that he downloaded the files from the Police database. He asked Mr Smith if Parklea Correctional Centre had provided a hard copy CD to the Police? Mr Smith replied to the effect that he did not know, but that it may have been provided in that form to enable it to be loaded into the database. The applicant then put to Mr Smith that the respondent should have held another copy of the files. Mr Smith replied to the effect that he did not know whether the respondent retained it after it was downloaded.
In relation to the damaged CCTV footage, the applicant asked Mr Smith what enquiries he made? Mr Smith replied that he spoke to Auburn PAC, who informed him that the footage was damaged. He did not make any further enquiries and only knows what was in the email that he received from Ms Svidron, which speaks for itself.
The applicant noted that Mr Smith stated that the CD was "scratched", but Ms Svidron's email does not say that. Mr Smith stated that he recalled speaking to Ms Svidron, who said that the CD was scratched and damaged. He then asked her to confirm that in an email and she sent the email to him.
The applicant then referred to Mr Smith's evidence in Ex 1, paras 23-28, regarding pixilation of CCTV footage. He asked Mr Smith whether it would be possible for the footage regarding the incident at Hunter Correctional Centre to be blocked/blurred rather than pixilated? Mr Smith referred to the evidence in Ex 1 and repeated his concerns about costs etc.
The applicant then asked Mr Smith whether it would be possible for the CCTV footage to be outsourced for pixilation? Mr Smith replied to the effect that he did not believe that it would be appropriate to outsource it for pixilation.
Mr Winram did not seek to re-examine Mr Smith and he was released from cross-examination and excused from further participation in the proceedings.

Respondent's written submissions

On 30 November 2021, the respondent filed written submissions. It argued that the correct and preferable decision is for the Tribunal to affirm its decision: (a) to provide access to part of the information (s 58(1)(a) of the GIPA Act); (b) that information is not held by the agency (s 58(1)(b) of the GIPA Act; and (c) to refuse access as part of the information because there is an overriding public interest against its disclosure (s 58(1)(d) of the GIPA Act).
After providing a detailed background up to and including the making of the decision dated 11 October 2021, the respondent made submissions which are summarised below. 1. A decision of an agency, made under s 58(1)(b) of the GIPA Act is an administratively reviewable decision by the Tribunal: Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), s 30; of the ADR Act, ss 7, 9, 80 and 100 of the GIPA Act. 2. The role of the Tribunal on external review is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual matter and any applicable written or unwritten law: the ADR Act, s 63(1). In In deciding what the correct and preferable decision is, the Tribunal sits in the shoes of the decision maker and re-makes the decision, as if it were the administrator: the ADR Act, s 63(2). In doing so, the Tribunal is not constrained by the material that was before the administrator: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 3. The provisions of the GIPA Act that are relevant to this matter are: 1. Section 5, which provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure; 2. Section 9, which 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 unless there is an overriding public interest against disclosure; 3. Section 12, which provides for public interest considerations in favour of disclosure; 4. Section 13, which provides that there is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure; 5. Section 14, which provides for public interest considerations against disclosure, including where disclosure of the information could reasonably be expected to: 1. Prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (cl 1(6) of the Table to s 14; 2. Reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (cl 1(e) of the Table to s 14); 3. Prejudice the effective exercise by an agency of the agency's functions (cl 1(f) of the Table to s 14); 4. Reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant (cl 2(a) of the Table to s 14); 5. Prejudice the security, discipline or good order of any correctional facility (cl 2(h) of the Table to s 14); 6. Reveal an individual's personal information (cl 3(a) of the Table to s 14); and 7. Expose a person to a risk of harm or of serious harassment or serious intimidation (cl 3(f) of the Table to s 14). 1. Section 15, which provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information; 2. Section 53(2), which provides that an agency must undertake such reasonable searches as may be necessary to find any government information applied for that was held by the agency when the application was received; 3. Section 74, which provides that an agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information; and 4. Section 105(1), which provides that in any review by the Tribunal concerning a decision made under the GIPA Act, the burden of establishing that the decision is justified lies on the agency. 1. It conducted reasonable searches for the information that the applicant requested and it stated, relevantly: 20. In Smith v Commissioner of Police [2012] NSWADT 85, Judicial Member Isenberg said at [27]: In making a decision as to the sufficiency of an agency's search for documents which an applicant claims to exist, there are two questions: (a) Are there reasonable grounds to believe that the requested documents exist and are they documents of the agency; and if so, (b) have the search efforts made by the agency to locate such documents been reasonable in all the circumstances of a particular case. 20. In relation to the first limb of the test, the Tribunal has observed that it is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency. As observed by O'Connor DCJ in Cianfrano v Director General Department of Commerce and Anor (No. 2) [2006] NSWADT 195 at [69]: An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence. 21. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [31]-[44], the Appeal Panel extensively reviewed the authorities relating to s 53 of the GIPA Act and provided the following summary (at [44]): In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act. 1. Mr Smith's evidence indicates that reasonable searches were undertaken in response to the access application. Therefore, its decision that it does not hold the CCTV footage (items 15 and 16 of the Schedule of Documents) should be affirmed. 2. In relation to consultation, the respondent argued that s 54 of the GIPA Act provides that it must, where it is reasonably practicable to do so, consult with third parties to obtain their views before releasing their personal or business information, especially if it appears the person may reasonably be expected to have concerns about the disclosure of the information. It consulted with CSNSW and its views were taken into account when balancing the public interest considerations in favour or against disclosing information about their staff members. 3. The respondent argued that in deciding whether to release information, it applied the public interest test, which involves three steps, which must also be applied by the Tribunal in determining whether the information that is the subject of the current dispute should be disclosed. In accordance with s 12 of the GIPA Act, it identified the following as relevant public interest considerations in favour of disclosure: (1) The statutory presumption in favour of disclosure (s 5); (2) The general right of the public to have access to government information held by agencies (s 9); and (3) The information requested involves events where the applicant was identified as a victim of assault. 4. As to the meaning of "could reasonably be expected to" in s 14 of the GIPA Act, in Leech v Sydney Water Corporation [2010] NSWADT 298, the Administrative Decisions Tribunal gave the following explanation of the accepted construction of these words: 24. … The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC. (emphasis added)
The respondent stated that in order for the Tribunal to find that cl 1(d) of the Table to s 14 of the GIPA Act applies, it must be satisfied that: (a) the information was obtained in confidence; (b) disclosure of the information could reasonably be expected to prejudice the supply of such information to the respondent in the future; and (c) the information facilitates the effective exercise of its functions.

(a) The information was obtained in confidence

In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] (Camilleri), the Appeal Panel of the Administrative Decisions Tribunal stated: …the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. Further, at [34], the Appeal Panel stated: …The enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it. Further, at [40], the Appeal Panel stated: In its written submissions to the Tribunal below, reiterated on appeal, the agency submitted that there is an expectation, if not an express undertaking, that information reported to Police will be kept confidential and will only be used and disclosed by the Police in the conduct of law enforcement activities. In support of this view, the submissions drew on the observations of Smart AJ in Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270, and also similar observations in a number of Tribunal decisions, for example, Fisher v Commissioner of Police [2002] NSWADT 267, DZ v NSW Police [2002] NSWADT 274 and FA v NSW Police [2003] NSWADT 196. There has been a long history of cases in the Tribunal that have recognised the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies: see, for example, the early cases of Taylor - v- Chief Inspector, RSPCA [1999] NSWADT 23; Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35; as well as the cases already mentioned. While the cases involved exemptions in the previous legislation cast in different terms, they reflect a recognition of the basic point made by the agency in this case.
Also, in Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 at [72] (Seremetis), the Tribunal acknowledged that "in the usual case, information provided to NSW Police will be treated as confidential."
The respondent stated that the information that it has withheld under cl 1(d) of the Table to s 14 of the GIPA Act is information that was provided to it with an understanding of confidentiality. Given the nature of the assaults to which it related, those who provided the information did so with the expectation that it was confidential and that it would only be used for the purposes for which it was obtained, that is, investigating an assault and possible charging and prosecution of the offender.

(b) Disclosure of the information could reasonably be expected to prejudice the supply of such information to the respondent in the future

The respondent argued that "disclosure" means "making known to a person information that the person to whom the disclosure is made did not previously know": NASR v State of New South Wales [2007] NSWCA 101 at [127]. See also JD v New South Wales Medical Board [2008] NSWADT 67, ZR v Department of Education and Training [2009] NSWADT 84 and CYL v YZA [2016] NSWCATAD 314 at [15]. The meaning of "prejudice" is "to cause detriment or disadvantage" or to "impede or derogate from": Hurst at [60].
Therefore, the correct question is whether disclosure would prejudice the supply of information of this kind. In Luxford v Department of Education & Communities [2016] NSWCATAD 118, Senior Member Montgomery said, relying on Department of Education and Training v Mullett (No. 2) [2002] NSWCATAP 29 at [50]: We acknowledge that conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future co-operation with similar inquiries. However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred; and some might withdraw co-operation completely out of fear (reasonable or otherwise) of adverse repercussions flowing from publicity. To that extent, a relevant prejudice to the future supply of information would arise. (emphasis added)
Given the nature of the investigations being conducted, which occurred in a secure and sometimes dangerous environment, if the respondent did not maintain confidentiality, it is likely that individuals will be less inclined to come forward regarding any offences that are committed, prejudicing the supply of confidential information of this kind to it in the future. The nature of the information provided is of such a kind that it is likely to bring with it a high degree of attention to other persons who either are or were previously incarcerated. Further, it is more than likely that disclosure of this information will lead people to be, at a minimum, inhibited and guarded, when supplying information in relation to incidents of violence within a correctional facility.

In Robinson v Department of Health [2002] NSWCATAD 222 at [71], it was held that the effective performance of an agency's investigative functions depended to a large extent on the cooperation of those who had relevant information. If information obtained confidentially is released under the GIPA Act, then that disclosure could reasonably be expected to have a substantial adverse effect on the effective performance of the agency's functions.
The functions of the NSWPF include those set out in s 6 of the Police Act 1990 (NSW). Witnesses and other persons who provide information to police trust that it will be kept confidential unless it is used for the purpose of court proceedings, or on their authority. If confidential information is disclosed under the GIPA Act, people will lose trust in police. If that trust is breached, the flow of information to police officers could dry up, which would severely impact on the agency's crime investigation function. This position was upheld in Simring v Commissioner of Police [2009] NSWSC 270 at [69], where the Court stated: …If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police. Consequently, significant weight should be given to the public interest factors against disclosure of the information.
In order for cl 1(e) of the Table in s 14 of the GIPA Act to apply, it must establish that there is a relevant connection between the deliberation contained in the withheld information and its deliberative processes. This consideration is relevant to the Event report E65634765, which has been released in part: see item 4 of the Schedule of Documents. The report contains advice and opinions given during a deliberative process, being the investigation and possible charging and prosecution for an offence committed against the applicant. The disclosure of such advice or opinions could seriously undermine deliberative processes undertaken by the NSWPF and reveal aspects of the criminal investigation that those with criminal intent seek to circumvent or weaken. Therefore, weight should be given to this public interest consideration against disclosure.
In order to demonstrate that clause 1(f) of the Table to s 14 of the GIPA Act applies, it must establish: (1) the relevant function that would be prejudiced by release of the information; and (2) how that prejudice could reasonably be expected to occur.
The Tribunal has acknowledged that cl 1(f) is in similar terms to parts of cl 1(d). Therefore, the analysis regarding the application of cl 1(d) to this matter apply to the application of cl 1(f).
Clause 1(f) is relevant to items 1, 3-8, 10, 11, 13 and 14 of the Schedule of Documents. The names and position of the personnel are included in these documents and the respondent contends that if this information was released, it could have a serious impact on its investigative functions, particularly when offences are being investigated within correctional facilities. Witnesses to offences need to be cooperative with investigating police officers and freely discuss relevant information regarding the commission of offences. If the names and identity of correctional officers who were witnesses to offences are released in full then the ability of NSW Police to investigate offences within correctional centre would be seriously impaired. It should be noted that a significant amount of the information regarding the incidents has been released, other than minor redactions deleting names of some staff members who provided the information. Therefore, significant weight should be given to this public interest consideration against disclosure of the information.
Clause 2(a) of the Table to s 14 of the GIPA Act is relevant to the witness reports, police statements, incident forms and evidence books referred to in items 1, 3 to 8, 10 and 11 of the Schedule of Documents. These documents contain information that could reveal the identity of an informant. NSWPF uses information obtained by informants to investigate crimes and criminal activity and if the identity of an informant were revealed then people with valuable information may stop coming forward, which could seriously impair the investigation and prosecution of crimes.
In NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel of the Administrative Decisions Tribunal considered the definition of "informant" and held: … we do not think that the term 'informant' is restricted to 'police informers' or people who may be seen as themselves involved in the conduct of interest and are ready to 'inform' on their comrades. In our view, the word 'informant' bears a wider connotation of the kind submitted by the agency, that is, a person who gives information.
Based on that definition, any person who provides the NSWPF with information in relation to an alleged offence or as part of a criminal investigation is an 'informer' for the purposes of the GIPA Act. Those persons provide information to the respondent with the understanding that it is done on a confidential basis and as the disclosure of the documents requested by the applicant would reveal their identities, the documents should not be disclosed.
The respondent argued that if the identity of informants is made known, they will be far less likely to supply it with information in the future. This is particularly so given the sensitive environment within which correctional services officers must work. If their identity is revealed the respondent will be significantly prejudiced in its ability to get information of this kind from informants in the future.
This public interest consideration outweighs the public interest considerations in favour of disclosure of the disputed information, as it could reasonably be expected to reveal the identity of an informant or prejudice the future supply of information from an informant.
Clause 2(h) to the Table in s 14 of the GIPA Act is relevant to items 1, 13 and 14 of the Schedule of Documents and the respondent argued that these documents contain information that could prejudice the security, discipline or good order of the correctional facilities that the request relates to, particularly with respect to the CCTV footage.
Consistent with the Tribunal's reasoning in Seremetis, release of the CCTV footage under the GIPA Act could allow individuals to identify blind spots not observed by the cameras, which could reasonably be expected to result in inmates identifying areas within correctional centres where they would not be observed, and facilitate the commission of assault or other activities which compromised the safety and security in the centres. The disclosure of blind spots in a secure area where protected inmates are housed would be detrimental to the core security functions of the correctional facilities. Therefore, this public interest consideration should be given significant weight.
Clause 3(a) to the Table in s 14 of the GIPA Act is relevant to items 1 to 8, 10 to 14 and 17 of the Schedule of Documents, which include names, dates of birth, addresses, medical information, phone numbers, prison identifiers and images of third parties (CCTV footage).
"Personal information" is defined in Sch 4 cl 4(1) of the GIPA Act, as "information or an opinion (including information or an opinion forming part of a database whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion." (emphasis added)
The respondent referred to the Information Commissioner's Guidelines "4 - Personal information as a public interest consideration under the GIPA Act", which are relevant to determining whether there is an overriding public interest against disclosure. It stated, relevantly: 87. The kind of information withheld under clause 3(a) includes personal information (in accordance with clause 4 of Schedule 4 to the GIPA Act) because it is information about individuals whose identities are apparent or can be reasonably ascertained from the information, and when held by an agency such as the respondent, is generally only disclosed to the person to which the information directly relates. 88. The question is then whether a disclosure of the information could reasonably be expected to 'reveal' the personal information about the witness or other individuals identified in the documents. As previously noted, the work 'reveal' is defined in cl 1 of Sch 1 of the GIPA Act, to mean "to disclose information that has not already been publicly disclosed (otherwise than by lawful means)."
Mr Smith's evidence is to the effect that when the documents the subject of the applicant's Updated Access Request were provided to CSNSW for consultation, CSNSW noted their concern with the information being disclosed as it would reveal an individual's personal information pursuant to clause 3(a) of the GIPA Act. The public interest in protecting and controlling disclosure of the personal information of other individuals should be afforded significant weight.
In any event, the applicant has not advanced any particular argument about why he should be provided with the personal information of the witnesses and other persons whose identity is discernible in the witness statements, other than to rely on the public interest considerations in favour of disclosure.
As disclosure under the GIPA Act is disclosure to the public in general, the respondent cannot impose conditions on how information is released in response to the applicant's application is used or disseminated. Consequently, significant weight should be given to this public interest consideration against disclosure.
Clause 3(f) of the Table to s 14 of the GIPA Act is relevant to items 1 to 8, 10, 13 and 14 of the Schedule of Documents, which include the names of some staff members, and it is unknown whether their identity or relationship to the witness is known to the applicant. The respondent argued that disclosure of these names could reasonably be expected to expose people to a risk of harm or of serious harassment or serious intimidation.
In Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139, the Tribunal stated (at [49]): The issue for determination is whether release of the redacted names of departmental officers would expose them to a 'risk of harm or of serious harassment or serious intimidation'. It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it…(emphasis added)
The definition of the words "harm", "harassment" and "intimidation" received extensive judicial consideration by the Administrative Decisions Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. In relation to "harm", the Tribunal stated (at [85]): In the context of s 14 of the GIPA Act I am inclined to the view the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. This is so given the juxtaposition of the word "harm" with the concepts of serious harm and intimidation, and the fact that economic and business interests are the subject of public interest consideration against disclosure in part 4 of the section 14 Table. A detrimental effect may be to a person's physical, psychological or emotional wellbeing. (emphasis added)
In relation to "harassment", the Tribunal stated, relevantly (at 87]): ... A consideration of those laws reveals that a common element in most jurisdictions is that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances: see Sex Discrimination Act 1984 (Cth), s 28A(1); Anti-Discrimination Act 1977 (NSW), s 22A; and Equal Opportunity Act 1984 (SA), s 87(9).
The Tribunal concluded (at [89]): All of the definitions of harassment require a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and are concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. In the context of the GIPA Act where the decision maker has to be satisfied that, if the information is disclosed, it could reasonably be expected that the disclosure would expose a person to serious harassment, the assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment. (emphasis added)
The Tribunal considered the definition of "intimidation" to be closely related to that of "harassment" and was "to make timid, inspire with dear; overawe; cow": [90]-[93], and it stated (at [94]): Importantly the intimidation or harassment referred to in point 4(f) is required to be serious intimidation or serious harassment, requiring that the decision maker be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is heavy, weighty or grave, and not trifling or transient. (emphasis added)
The respondent argued that there is a real risk that if the names of third parties and correctional service officers are released, they may be exposed to harm, serious harassment or serious intimidation in light of the environment in which they work.

Balancing the public interest considerations

The respondent stated that there will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. This provides: There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The respondent argued that in this matter, there is an overriding public interest against disclosing the disputed information as the s 12 considerations are strongly outweighed by a number of public interest considerations against disclosure, namely cll 1(d), 1(e), 1(f), 2(a), 2(h), 3(a) and 3(f) of the Table to s 14 of the GIPA Act.

Form of access

Section 72(2) of the GIPA Act provides that the agency must provide access in the way requested by the applicant unless, amongst other things: (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
In Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48, the Tribunal stated, relevantly: 62. …the circumstances set out in para 72(2)(d) of the GIPA Act are only applicable after an agency has identified any public interest consideration against the disclosure of the information in the form sought and where a public interest consideration against disclosure is identified, weighing that public interest consideration against the public interest consideration in favour of disclosure in the form sought (i.e. the s 13 test). In weighing the competing public interests the agency can take into account any relevant factor falling within s 55 and the inability to grant conditional access (see 73(1)). … 64. On the other hand, if the s 13 test is satisfied and there is an overriding public interest against disclosure of the information in the form sought, in my view, para 72(2)(d) makes provision for the agency to consider whether disclosure of the information sought, in a form, other than that requested by the access applicant, would alter the balance between the competing public interests so that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure if access is granted in an alternative form. This approach, in my view, is also consistent with the structured approach to decision making, under the GIPA Act, as noted by the Appeal Panel, in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25].
Mr Smith's evidence is that the Infolink Unit of the NSWPF does not have the necessary software to remove/pixilate the personal information of the individuals identified in the CCTV footage. The Public Affairs Branch has access to pixilation software, but it is involved in the dissemination of news stories involving the Police. This includes filming NSW Police across the state when carrying out their functions without endangering photographers from media outlets. The Unit has two specialist staff member who film incidents, and once an incident is recorded, a review is undertaken by the specialist staff who then pixilate images of suspects or members of the public. Staff from the Public Affairs Unit are generally not available to carry out other functions and any request to pixilate CCTV footage and any such work would involve staff performing overtime outside of their usual working hours. Mr Smith's enquiries with the Public Affairs Unit resulted in an estimate that it would cost over $15,888.45 and may take between one and three months (accounting for at least 25 people to be pixelated).
The respondent stated that if the costs of the pixilation process were to fall upon it, a question would arise as to whether the correct and preferable decision in respect of the request for access would be that it incur that cost in order to make the pixilated footage available to the applicant.
In any event, the GIPA Act does not provide for the respondent to require the applicant to pay the costs of pixilation and while s 64 of the GIPA Act provides for the payment of a processing charge, this is limited to $30 per hour for each hour of processing time.
In Seven Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210, the Tribunal considered the issue as to who should pay the cost of pixilation and Senior Member Robertson stated, relevantly: 109. In Willner v City of Port Phillip (Review and Regulation) [2015] VCAT 1320, the Victorian Civil and Administrative Tribunal refused an application for access to CCTV footage on the basis that "it was not practicable to grant access to the footage with such deletions to render it not an exempt document…given the cost burden on Port Phillip rate payers".
In that matter, the relevant Victorian legislation required a document to be produced with such deletions as would make the document not exempt from disclosure "if it is practicable for an agency or Minister to grant access" to such a document. However, there is no equivalent provision in the GIPA Act.

Conclusion

The respondent concluded that the correct and preferable decision is to affirm its decision: (1) To provide access to part of the information (s 58(1)(a) of the GIPA Act); (2) That information is not held by it (s 58(1)(b) of the GIPA Act); and (3) To refuse access to part of the information because there is an overriding public interest against disclosure (s 58(1)(d) of the GIPA Act).

Applicant's written submissions

The applicant pressed his claim for the release of items 1, 3, 4, 5, 6, 7, 8, 10,11, 13, 14, 16 and 17 of the Schedule of Documents, but he did not press his claim for information in items 2, 9, 12 and 15 of that Schedule.
The applicant argued that the correct and preferable decision is to remit item 16 of the Schedule of Documents to the respondent "so that they can fulfil their obligations under the State Records Act 1998 (NSW) (SRA) at s 11(3) to recover a "held" record that has been found to be damaged. He asserted that the respondent had not addressed its "not held" decision in relation to item 16 of the Schedule of Documents. He referred to Ex 1 and took issue with his statement that the CD was "scratched" as this was not indicated in Ms Svidron's email dated 23 June 2021. He asserted that if the CD has been located and is scratched or faulty, as a "State record" held under the SRA the respondent has an onus to recover it: (SRA s11(3)). Further, s 14 of the SRA provides that a person must not "damage", or "neglect" a State record in a way to cause damage to it. The onus is on the respondent to make efforts to recover the State record and evidence its attempts to do so.
The applicant argued that the correct and preferable decision is that the redacted material in items 1, 3, 4, 5, 6, 7, 8, 10, 11, 13, 14 and 17 of the Schedule of Documents should be released to him, as this information has already been "revealed" as part of the Criminal Justice process to the person of interest in a brief of evidence or in open court resulting in convictions. In the alternative, the redacted material in those items should be released as the overriding public interest considerations against disclosure are not engaged or the overriding public interest in favour of disclosure exists. In any event, the CCTV footage (items 13 and 14 of the Schedule of Documents) should be released to him in a redacted form.
The applicant relied upon the following public interest factors in favour of disclosure: (1) the information is his personal and health information; (2) the information relates to him as a victim of assaults in custody; (3) the information can reasonably be expected to enhance accountability of CSNSW safe management of at risk inmates; and (4) disclosure of the information could reasonably be expected to substantiate that CSNSW and its Correctional Centre contractor has engaged in misconduct and/or negligent conduct. He also stated that the object of the GIPA Act is to "open government information to the public" so as to "maintain and advance a system of responsible and representative democratic government that is open, accountable, fair and effective." Section 3(2) of the GIPA Act requires that the Act be interpreted and applied so as to further than object. Section 5 establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: s 9(1). Section 12 establishes "a general public interest in favour of the disclosure of government information and stipulates that the public's interest considerations in favour of disclosure are not limited. Further, s 55(2) provides that "personal factors… can also be taken into account in favour of providing the applicant with access to the information" and includes "any factors particular to the applicant".
The applicant stated that the respondent's obligations to search for information in response to an access application are set out in ss 53(3) and (4) of the GIPA Act. Section 72 provides various ways that government information may be provided in response to an access application and includes: (a) a reasonably opportunity to inspect a record; (b) …providing a copy; (c) …providing access to a record… to enable the information to be read, viewed or listened to; (d) …providing a transcript.
Under s 100 of the GIPA Act, the Tribunal has jurisdiction to review an agency's decision where a person is aggrieved. The onus and burden of establishing that the agency's decision is justified lies on the agency: s 105 GIPA Act.
"Personal information" is defined in Sch 4 cl 4(3), but subs (b) provides that this does not include "information about an individual, (comprising the individual's name and nonpersonal contact details, including the individual's position title, public function and the Agency in which the individual works). That reveals nothing more than the fact that the person was engaged in the exercise of public function."
In Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138, Wall SM stated: 32. The Tribunal's task on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It is we;; established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179.
The applicant argued that the requested information relates to incidents that were reported to Correctional Officers, following the assault, or required correctional officers to use force to apprehend any further assault of the applicant (as was the case for the incident at the Parklea Correctional Centre). Following the reporting to or intervention from correctional officers of the incident, CSNSW documentation was completed recording the events. This documentation is mandatory under s 244 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) (CAS Regulation) and under s 133 where force was used. CCTV footage evidencing the incident is required to be retained and stored under the SRA.
Further, correctional officers' mandatory reporting obligations further requires all officers involved to provide a statement of the incident using an "Incident/Witness" form. Section 251 of the CAS Regulation requires officers to be honest and truthful and provides that officers "Must not make a statement that the officer knows or reasonably to know is false or misleading in a material particular." Correctional officers have delegated powers of the "Care control and management" of the applicant, must act as informants to refer the matter to NSW Police in the first instance where an offence under the Crimes Act 1900 (NSW) has or is likely to have occurred. Corrective Services documents and CCTV footage was provided to NSW Police by CSNSW.
As evidenced in Annexure B of Ex 1, Mr Smith consulted with CSNSW regarding 32 pages of material provided by CSNSW and asked if they had any concerns with the release of the material. Department of Communities and Justice, Open Government Information and Privacy Unit replied that CSNSW had no concern other than cl 3(a), which was raised by the respondent.
The applicant argued that the respondent's decision that there is an overriding public interest against disclosure because disclosure of custodial officers' names "could reasonably be expected to expose custodial officers to a risk of harm or of serious harassment or serious intimidation" is not supported by the Department of Communities and Justice. The risk asserted by the respondent is not made out and refusal to release their names is not supported by precedence.
The applicant also argued that custodial officers are government agency employees engaged in the exercise of the public function of operating the State's correctional facilities. Therefore, under Sch 4 cl 3(b) of the GIPA Act, their "…names, non-personal details, position title and public function" do not constitute personal information "within government documentation" when engaged in the exercise of this public function. Further, correctional officers, as law enforcement agency personnel, undertake an oath (CAS Regulation s 241) and declare that they will act, "…as a correctional officer without fear or favour. Malice or ill will… and that while I continue to be a correctional officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law."
The applicant refuted the respondent's arguments regarding cll 1(d), 1(f) and 2(a) of the Table to s 14 of the GIPA Act regarding disclosure of the CSNSW's documents and CCTV footage provided to the respondent. He stated that in Seremetis, Senior Member Goodman SC stated: 134. As noted above, on 27 October 2016, Assistant Superintendent Naati and First Class Correctional Officer Gavin each prepared Incident Reports and Assistant Superintendent Naati prepared a document titled "NSW Department of Corrective Services Use of Force". Large parts of these documents have been redacted, in reliance upon cll 1(d) and (f). 135. I infer from these documents that they were prepared for internal use by the Department. There is no evidence before the Tribunal which suggests that they were prepared for the NSW Police (…) As such I am not satisfied that disclosure of the redacted information could reasonably be expected to have the effects in cll 1(d) or (f) with respect to the NSW Police. 135. Nor is there evidence before the Tribunal capable of establishing the operation of cll 1(d) or (f) with respect to the Department. Further, cl 133 of the Crimes (Administration of Services) Regulation 2014 required Correctional Services Officers to provide a report where force had been used. Given that requirement (and notwithstanding the potential operation of the privilege against self-incrimination) it cannot be concluded that disclosure of the redacted information could reasonably be expected to stymie the flow of such information in the future. 137. Thus, I am not satisfied, on the evidence before the Tribunal, that disclosure of the redacted information could reasonably be expected to have the effect of prejudicing the effective exercise of the functions of the Department of NSW Police. Consequently, I am not satisfied that either of cll 1(d) or (f) is engaged and the redacted information should be released to the applicant. (emphasis added).
While the respondent relied on cl 1(h) of the Table to s 14 as a public interest consideration against disclosure, it made no submissions about how this consideration arises. Further, regarding items 13 and 14 of the Schedule of Documents, correctional officers have an obligation to uphold the law and to provide evidence of criminal offences captured on the CCTV footage to be supplied to NSW Police. Disclosure of the footage "by view access" has consistently been held by the agency and Tribunal as an option to be afforded to inmates: see Seremetis and Turner v Corrective Services NSW (No 2) [2013] NSWADT 232 (Turner). However, there is precedent for disclosure of a copy of CCTV footage with redactions made at the Agency's cost.
In Turner, the Administrative Decisions Tribunal stated (at [20]), that a DVD containing CCTV footage had already been provided to the inmate with pixilation of the officers' faces. He also stated that release of NSW Correctional Centre CCTV footage occurs to media outlets for "entertainment" purposes. He stated: 71. It is apparent in consideration of release to the Television series, that s 14 Table cl 3(a) considerations were applied, resulting in the pixilation of inmates within released CCTV footage. Such decision is in line with the Tribunal's decision in 7 Networks Limited v South Eastern Local Health District [2017] NSWCATAD 210 at [113]], where Senior Member Robertson (stated) , …a decision is made at access is to be provided to footage 2 and footage 3 with the faces, heads, necks and any tattoos or other identifying marks of any person appearing in the footage concealed by pixilation. 72. Therefore, the public release by CSNSW to the "Television Series" identifies that s 14 Table cl 2(h) overriding public interest consideration against disclosure as cited at [81] of the respondent's submission can exist as claimed to sought footage in this access application, when the Department of Communities and Justice provide broad and extensive releases of CCTV footage to privately owned "entertainment" media outlets, which is broadcast directly to those inmates currently housed in the those facilities. The application for a double standard by the Department of Communities and Justice and in the turn the respondent to the release of CCTV footage in this application is inconsistent with the objective of the GIPA Act s 3.
The applicant concluded that the CCTV footage should be released, with redaction in the form of pixilation of identifying features of persons depicted in the footage. He argued that the respondent miscalculated the cost and time associated with pixilation, as this was based on the need for at least 25 items to be pixilated, however only himself and the assailant were present in the yard before the Correctional Officer arrived. He argued that the Tribunal should allow him to identify the most-relevant part of the footage and to pay for the redaction and that this is supported by the decision in Seven Network Limited.
In relation to the information that was revealed in criminal justice proceedings, the applicant referred to the decision in Camilleri at [41]: The case law to which we have referred have noted that it is not unusual for the material received confidentially at the initial stage of law enforcement process to loose (sic) that confidentiality as he investigation develops. It may need to be placed before persons of interest for their response. It may need to form a basis of evidence to be given in open court in support of any charges that may be laid.
The Appeal Panel acknowledged that information in the prosecution of an individual will include the disclosure of evidence material to the person of interest, which constitutes the "brief of evidence" served on the person of interest containing witness statements, CSNSW supplied documents and CCTV footage, in so doing "revealing the information". Further, such material is tendered in open court in the course of proceedings, which was observed by Senior Member Moloney in Richards v Commissioner Department of Communities [2011] NSWADT 98 at [37]: As the information was disclosed in open court, certain consequences followed. Because the information has already been publicly revealed, release under the GIPA Act could not be reasonably expected to reveal the complainant's personal information: see the definition of reveal (cl.1, sch 4). As a result, the public interest against disclosure in 3(a) of the Table to s 14 cannot be relied on as a ground for refusing disclosure."
The applicant also argued that items 1, 3, 4, 5, 6, 7, 8, 10, 11, 13, 14 and 17 of the Schedule of Documents were supplied to the "persons of interest" in the "briefs of evidence", as they initially contested the charges, which ultimately culminated in a conviction in open court. Therefore, the information was "revealed at large" and, as Senior Moloney stated in Richards, "Where there is material indicating information has already been publicly disclosed, that burden requires the agency to establish that it was not."

Respondent's submissions in reply

On 24 February 2022, the respondent filed submissions in reply, which particularly responded the applicant's arguments about the application of the SRA. It stated that under s 11(3) of the SRA, it has fulfilled its obligations to make reasonable steps to recover the CCTV footage, being a State Record within the meaning of the SRA. The reasonable steps and consultations that it undertook are set out in the previous submissions (at paras [18]-[25]) and the evidence of Mr Smith. The applicant's assertion that it has not correctly maintained a record in accordance with the SRA is not a relevant consideration in this application.
The respondent also refuted the applicant's assertion that the redacted material in items 1, 3, 4, 5, 6, 7, 8, 10, 11, 13, 14 and 17 of the Schedule of Documents had been "revealed" as part of the criminal justice process to the person of interest in brief of evidence or in open court resulting in convictions. It stated that no briefs of evidence were served and the persons of interest pleaded guilty prior to a contested hearing. Therefore, the redacted information was not disclosed in open court. This is apparent from Mr Smith's evidence (Ex 2). R
Further, the respondent argued that the redacted material in items 1, 3, 4, 5, 6, 7, 8, 10, 11 and 17 of the Schedule of Documents should not be released for the reasons provided in its previous submissions. In particular, the public interest considerations against disclosure are engaged and there is an overriding public interest against disclosure.
In relation to items 13 and 14 of the Schedule of Documents, these should not be released to the applicant in redacted form. Paragraphs [22] to [28] of Ex 1 detail the cost of redacting the CCTV footage and for the reasons provided at paragraphs [111] to [129] of the previous submissions, and as provided in section 72(2) of the GIPA Act, the redaction process would result in the agency incurring unreasonable additional costs.
The respondent replied to the applicant's submissions regarding cll 1(d) and 1(f) of the Table to s 14 of the GIPA Act and his reliance on the decision of Senior Member Goodman in Seremetis. It stated that a consideration of the relevant documents, particularly items 6 and 7 in the Schedule of Documents at Annexure "A" of the previous submissions would satisfy the Tribunal that they were prepared for the NSWPF. Accordingly, the findings of the Tribunal in relation to cll 1(d) and 1(f) in Seremetis should not be accepted.
The respondent replied to the applicant's submissions regarding cll 2(a) and 2(h) of the Table to s 14 of the GIPA Act and his assertions from para [60] onwards that cl 2(a) is not a relevant consideration because there is a "mandatory disclosure" under the Crimes (Administration of Sentences) Regulation 2014 (the CAS Regulation). It stated that a review of the withheld information suggests that any information provided by custodial officers has not been provided for the purposes of cl 133 of that Regulation.
While the respondent agrees that there is an obligation between NSWPF and CSNSW to share information where an incident in being investigated, it does not agree that this requires all information to be provided to the applicant (and therefore the world at large) in circumstances where law enforcement and security might be at risk. Further, the applicant notes at para [63] of his submissions that it makes no submissions about how the public interest consideration under cl 2(h) arises. It refers to paras [79] to [82] of its previous submissions, where cl 2(h) is discussed.
In relation to cll 3(a) and 3(f) of the Table to s 14 of the GIPA Act, the respondent noted that the applicant argued (at paras [48] to [50]) that cl 3(a) is not a relevant consideration because "custodial officer names… does not constitute personal information" under cl 4(3)(b) of sch 4 of the GIPA Act. It stated: 24. The respondent does not agree that release of a custodial officer's name would "reveal nothing more than the fact the person was engaged in the exercise of public functions." Rather, it would reveal that the relevant officer had provided information to the respondent in the capacity of a witness to a possible crime or as an informant, which arguably goes beyond their public functions as custodial officers. 25. In the alternative, if the Tribunal finds that the custodial officer names are personal information, the respondent relies on the public disclosure considerations against disclosure listed in the previous submissions and contends that those considerations should be given significant weight.
In relation to the applicant's comments concerning the release of correctional centre CCTV footage to media outlets for "entertainment" purposes, the respondent stated that it did not know the context or details of how Channel 9 obtained CCTV footage used in the television series "Australia Behind Bars". Therefore, it could not comment on this. However, given the nature of the program, it "assumed" that the information was not provided under the GIPA Act and that it was selectively disclosed to ensure that safety of the correctional facility, its staff and inmates are protected as appropriate. In this matter, the relevant CCTV footage has not been released to any media outlet or broadcast to the public, so the applicant's submissions on this issue and cll 1(f), 2(h) and 3(a) of the Table to s 14 of the GIPA Act should be given limited weight.
While the applicant argued at para [78] of his submissions, that the cost and time associated with pixilation has been wrongly calculated, as only he "and the assailant" were present in the yard at the time of the assault, Mr Smith's evidence refers to two separate items of CCTV footage (being items 13 and 14 of the Schedule of Documents), one of which does include the images of at least 25 people. Accordingly, the applicant's submissions should be rejected.

Applicant's oral submissions

The applicant stated that he relied upon paragraphs 12 to 15 (inclusive) of his written submissions. He argued that the decision in Seven Networks Limited v South Eastern Local Health District" [2017] NSWCATAD 210 (Seven Networks Limited) is authority for the proposition that access can be granted to CCTV footage with faces, heads, necks and any tattoos or other identifying marks of any person appearing in it concealed by pixilation. He pressed for a copy of the CCTV footage and not merely access to view it. Otherwise, he maintained his arguments regarding the application of the SRA to the CCTV footage and that the respondent must take all reasonable steps to recover the lost State record.

Respondent's oral submissions

In response to the applicant's oral submissions, the respondent argued that the power in s 53(4) of the SRA does not compel an agency to recover a record, but to search an electronic back-up system if the source record is damaged or destroyed. Mr Smith searched for the CD because the CCTV footage was not located in an online database and the respondent is only requires to undertake reasonable searches .
In relation to items 13 and 14 of the Schedule of Documents, the respondent originally refused to provide access, but "yesterday", it provided the applicant with "view access" to the CCTV footage pursuant to s 72(1)(c) of the GIPA Act.

Applicant's submissions in reply

In reply, the applicant argued that the Seven Network Limited decision is authority for the proposition that a third party can view files if the format was changed and that the Tribunal could order this to be done.
Otherwise, the applicant complained about the lack of cooperation between the NSWPF and CSNSW and asserted that the lack of efficient surveillance impacts on inmates' safety.

Confidential documents

While the respondent filed copies of documents with the Tribunal on a confidential basis, in accordance with the Tribunal's orders, the documents filed were redacted.
Accordingly, it was not necessary to conduct a confidential hearing or to make a suppression order under s 63(1) of the NCAT Act.

Consideration

Section 105 of the GIPA Act provides that, in administrative review proceedings under that Act, the onus is on the agency (in this case, the respondent) to establish that its decision is justified.
I have considered the parties' extensive submissions (written and oral) and the evidence filed by the respondent, noting that the applicant did not file any evidence in support of his submissions. For the reasons that follow, I have decided, on the material before me, that the correct and preferable decision is that the respondent's decision should be affirmed.

Public Interest Test: s 13 of the GIPA Act

Section 13 of the GIPA Act requires the Tribunal to determine whether, "on balance" there are public interest considerations in favour of disclosure which outweigh the public interest considerations against disclosure.
In Transport for NSW v Searle [2018] NSWCATAP 93 at [104], the Appeal Panel held that the application of the public interest test requires a broad value judgment to be made, having regard to the objects of the GIPA Act, the general presumption in favour of disclosure of government information, and the following principles set out in s 15 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.

Considerations in favour of disclosure

Section 12(1) of the GIPA Act provides that "there is a public interest in favour of the disclosure of government information". Section 12(2) of the GIPA Act provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure.
The respondent contended that the relevant public interest considerations in favour of disclosure, which are raised by the applicant, are: 1. the general public interest in favour of the disclosure of government information, relying on ss 3 and 12(1) of the GIPA Act; 2. the information is personal and health information of the applicant; 3. the information relates to the applicant as a victim of assaults in custody; 4. the information can reasonably be expected to enhance accountability of CSNSW safe management of at risk inmates; and 5. disclosure of the information could reasonably be expected to substantiate that CSNSW and its correctional centre contractor has engaged in misconduct and/or negligent conduct.
The Appeal Panel has found that the weight to be attributed to the first of those considerations will depend on the "functions of the agency to which the access application is directed, and the character of the information": Commissioner of Police, NSW Police Force v Barrett (No 2) NSWCATAP 86 at [52].
Based on the information and evidence before me, I find that the applicant's personal factors in favour of disclosure should be afforded moderate weight.

Considerations against disclosure: s 14(2) and the Table to s 14 of the GIPA Act

The Table to s 14 of the GIPA Act sets out the only considerations against disclosure that may be taken into account by a respondent in applying the public interest test. As set out above, there are seven separate grounds relied upon by the respondent to refuse disclosure that are referrable to consideration listed in the s 14 Table.

Clauses 1(d) and (f)

The first grounds raised are cll 1(d) and (f) of the Table to s 14 of the GIPA Act. For convenience, these are dealt with together because they are closely related. Clause 1(d) deals with circumstances where disclosure may prejudice the supply of confidential information that facilitates the effective exercise of an agency's functions and cl 1(f) is concerned with disclosure that may prejudice the effective exercise of the agency's functions.
The information to which cl 1(d) applies includes items 4, 7, 8 and 10 of the Schedule of Documents.
I note that "function" is defined in cl 1 of Sch 4 of the GIPA Act as including "power, authority and duty" and that the functions of the NSWPF are those set out in s 6 of the Police Act 1990, which provides, relevantly: 6 Mission and functions of the NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions - (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section - police services includes - (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations…
I accept the respondent's evidence that the information contained in items 4, 7, 8 and 20 of the Schedule of Documents was obtained in confidence, that disclosure of it could reasonably be expected to prejudice the supply of such information to the respondent in the future and that the information facilitates the effective exercise of the respondent's functions.
I am therefore satisfied that cl 1(d) to the Table in s 14 of the GIPA Act is a relevant public interest consideration against disclosure of the information and that this should be given significant weight.
I note that cl 1(f) is relevant to items 1, 3 to 8, 10, 11, 13 and 14 of the Schedule of Documents, which include the names and positions of CSNSW's personnel.
I accept the respondent's evidence that if this information was released, it could have a serious impact on the investigative functions of the NSWPF, particularly when offences are being investigated within correctional facilities. Witnesses to offences need to be cooperative with investigating police officers and freely discuss relevant information. If the names and identities of correctional officers who witnessed offences are released in full then the ability of NSW Police to investigate offences within correctional centres would be seriously impaired. In any event, I note that a significant amount of the information regarding the incidents has been released to the applicant, with minor redactions that delete the names of some CSNSW staff who provided the information.
I am satisfied that cl 1(f) is a relevant public interest consideration against disclosure and that it should be given significant weight.

Clause 2(a)

I note that cl 2(a) of the Table to s 14 of the GIPA Act is relevant to the witness reports, police statements, incident forms and evidence books at items 1, 3 to 8, 10 and 11 of the Schedule of information, which contain information that could reveal the identity of an informant.
The respondent argues that the NSWPF uses information obtained by informants to investigate crimes and criminal activity and if the identity of an informant was revealed then people with valuable information may stop coming forward, which could seriously impair the investigation and prosecution of crimes. Informants generally provide information to the respondent with the understanding that it is done on a confidential basis, but the disclosure of the information requested by the applicant would reveal their identities.
I accept the respondent's submission, based on the definition of "informant" that the Appeal Panel of the Administrative Decisions Tribunal considered in NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, that any person who provides information to the respondent in relation to an alleged offence or as part of a criminal investigation would be an "informant" for the purposes of the GIPA Act.
For these reasons, I am satisfied that cl 2(a) to the Table in s 14 of the GIPA Act is a relevant public interest consideration against disclosure and that this should be given significant weight.

Clause 2(h)

I note that cl 2(h) of the Table in s 14 of the GIPA Act relates to information contained in items 1, 13 and 14 of the Schedule of Documents.
The respondent argues that these documents contain information that could prejudice the security, discipline or good order of the correctional facilities that the current request relates to, particularly in relation to the CCTV footage. It argued, consistent with the Tribunal's reasoning in Seremetis, that release of the CCTV footage under the GIPA Act could allow individuals to identify blind spots not observed by the cameras, which could reasonably be expected to result in inmates identifying areas within the centres where they would not be observed, and facilitate the commission of assault or other activities which could compromise safety and security within the centres. The disclosure of blind spots in a secure area where protected inmates are housed would be detrimental to the core security functions of the correctional facilities. Therefore, this public interest consideration should be given significant weight.
The applicant did not make any submissions in relation to this issue.
I am satisfied that cl 2(h) is a relevant public interest against disclosure and that it should be given significant weight.

Clause 3(a)

I note that cl 3(a) to the Table in s 14 of the GIPA Act is relevant to items 1 to 8, 10 to 14 and 17 of the Schedule of Documents, which include names, dates of birth, addresses, medical information, phone numbers, prison identifiers and images of third parties (CCTV footage). I am satisfied that this is "personal information" as defined in cl 4(a) of Sch 4 of the GIPA Act.
The respondent argues that the question is whether disclosure of the information could reasonably be expected to 'reveal' the personal information about the witness or other individuals identified in the documents. It consulted with CSNSW regarding disclosure of this information and CSNSW expressed its concerns based on cl 3(a).
The applicant argued that some of the information had already been disclosed, or revealed, during the course of Criminal Justice processes, namely information relating to the incidents that occurred at Hunter Correctional Centre and Parklea Correctional Centre. He argued that the disclosure occurred by way of the service of briefs of evidence on the persons of interest or that the information was otherwise disclosed in open court.
However, Mr Smith's evidence is to the effect that there was no such disclosure because the persons of interest pleaded guilty and were convicted before any brief of evidence was served upon then and there was no contested hearing before a court. I note that the applicant did not challenge this evidence upon cross-examination of Mr Smith.
For these reasons, I am satisfied that cl 3(a) to the Table in s 14 of the GIPA Act is a relevant public interest against disclosure and that it should be given significant weight.

Clause 3(f)

I note that cl 3(f) to the Table in s 14 of the GIPA Act is relevant to items 1 to 8, 10, 13 and 14 of the Schedule of Documents, which includes the names of some staff members.
The respondent argued that disclosure of this information could reasonably be expected to expose people to a risk of harm or of serious harassment or serious intimidation. It relied upon the Tribunal's decision in Zonnevylle v Department of Education and Communities [2018] NSWCATAD at 49, that the issue for determination is whether the release of the redacted names of departmental officers would expose them to a 'risk of harm or of serious harassment or serious intimidation.' It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it.
The respondent argued that given the nature of the documents and the context in which the current access application has been made, there is a real risk of harm if the names of third parties and CSNSW officers are released, as those people may be exposed to harm, serious harassment or serious intimidation in light of the environment in which they work.
The applicant did not make any submissions in relation to this issue.
I am satisfied that cl 3(f) to the Table in s 14 of the GIPA Act is a relevant public interest consideration against disclosure and that it should be given significant weight.

Balancing the public interest considerations

In applying s 13 of the GIPA Act, I have adopted the approach discussed in decisions including Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, which is discussed previously in this decision.
For the reasons set out above, I am satisfied that there is an overriding public interest against disclosing the disputed information, as the s 12 considerations are strongly outweighed by those identified as relevant in the Table to s 14.

Form of access: ss 72 and 74 of the GIPA Act

Section 72(2) of the GIPA Act provides that the agency must provide access in the way requested by the applicant unless, amongst other things: (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
In Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48, the Appeal Panel stated: [62] …the circumstances set out in s 72(2)(d) of the GIPA Act are only applicable after an agency has identified any public interest consideration against the disclosure of the information in the form sought and where a public interest consideration against disclosure is identified, weighing that public interest consideration against the public interest consideration in favour of disclosure in the form sought (i.e. the s 13 test). In weighing the competing public interests the agency can take into account any relevant factor falling with s 55 and the inability to grant conditional access (see s 73(1))… [64] On the other hand, if the s 13 test is satisfied and there is an overriding public interest against disclosure of the information in the form sought, in my view, para 72(2)(d) makes provision for the agency to consider whether disclosure of the information sought, in a form other than that requested by the access applicant, would alter the balance between the competing public interests so that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure if access is granted in an alternative form. This approach, in my view, is also consistent with the structured approach to decision making under the GIPA Act, as noted by the Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25].
The respondent relied upon the evidence of Mr Smith regarding the respondent's ability and capacity to "redact" the CCTV footage by way of the process of pixilation and the significant estimated costs of doing so (at least $15,888.45) and delay in completing pixilation (between one month and three months).
The applicant argued that the respondent's cost estimation for pixilation was erroneous because it was based on the pixilation of at least 25 items/people and that only he and the assailant were present in the yard at the time that the assault occurred. He also argued that the information could be released because CCTV footage had been released to media outlets for entertainment purposes.
The respondent replied that none of the CCTV footage sought in this access request had been released to media outlets or otherwise broadcast to the public and Mr Smith's evidence is that one of the pieces of CCTV footage contained images of at least 25 people.
The applicant argued that the Tribunal should allow him the opportunity to identify the most-relevant CCTV footage and to pay for the redaction. He argued that this is in line with the Tribunal's decision in Seven Network Limited.
However, the respondent also argued that the GIPA Act makes no provision for an agency to require an applicant to pay the costs of pixilation. Further, in Seven Network Limited, Senior Member Robertson considered the issue of who should pay the costs of pixilation. The Senior Member referred to the decision in Willner v City of Port Phillip (Review and Regulation) [2015] VCAT 1320, in which the Victorian Civil and Administrative Tribunal refused an application for access to CCTV footage on the basis that "it was not practicable to grant access to the footage with such deletions to render it not an exempt document… given the cost burden on Port Phillip rate payers." However, the Freedom of Information Act 1982 (Vic) required a document to be produced with such deletions as would make the document not exempt from disclosure "if it is practicable for the agency or Minister to grant access" to such a document: see s 25. However, there is no equivalent provision in the GIPA Act.
For these reasons, I am satisfied that providing access to the CCTV footage held by the respondent, in the way requested by the applicant, would interfere unreasonably with the operations of the respondent or would result in it the incurring unreasonable additional costs. I am also satisfied that there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Reasonable searches: Item 16 of the Schedule of Documents

In relation to this item, the respondent relies on the evidence from Mr Smith to the effect that the MRRC case manager provided a copy of the CCTV footage to the NSWPF on a CD, but after viewing this was not saved electronically on NSWPF systems. The CD had since been retrieved from the Case File Box and it was found to be scratched and although attempts were made to view it, the CD did not work.
The applicant challenged Mr Smith's evidence on cross-examination. However, Mr Smith confirmed that he made enquiries with Auburn PAC and that he was informed by Ms Svidron that Ms Kolundzic had reported that the CD was faulty and was unable to be downloaded.
The applicant argued that this CD was a "State record" for the purposes of the SRA and that the respondent has an onus to recover it. He stated that the correct and preferable decision is for the Tribunal to remit this item to the respondent to enable it to comply with its obligations to recover this State record with a view to it subsequently being disclosed to him.
However, the respondent argues that it has fulfilled its obligation under s 11(3) of the SRA, which is to take reasonable steps to recover the CCTV footage. Mr Smith's evidence detail the reasonable searches and consultations that he undertook with respect to the CCTV footage. It referred to s 53(4) of the GIPA Act and argued that this power does not compel an agency to recover a State record, but rather requires it to search an electronic backup system if the source record has been destroyed etc. in contravention of the SRA.
Based on the information and evidence before me, I am satisfied that the respondent took reasonable steps to recover the CCTV footage contained in the damaged/scratched CD as required by s 53(4) of the GIPA Act. I am not satisfied that its obligations extend to actual recovery of the State record in the manner asserted by the applicant.

Conclusions

For the reasons set out above I affirm the decision of the respondent dated 11 October 2021.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2022

Government Information (Public Information) Act 2009(NSW)

However, the Freedom of Information Act 1982(Vic)

At a glance

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Judgment (38 paragraphs)

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