EGR v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2020-03-16

Introduction

By an Application filed in the Tribunal on 22 November 2019, the applicant applied for administrative review of a decision made by the respondent on 9 October 2019 (reviewable decision) to refuse access to government information under the Government Information (Public Access) Act 2009 (GIPA Act).
The reviewable decision refused a request made by the applicant dated 1 October 2019 for access to a document described as an "Event Report", being a statement (statement) made to the NSW Police by the applicant's daughter (complainant) in 2018, in which she made serious allegations of historical sexual abuse against the applicant and a large number of others.
The decision under review was made on the assumption and without admission that the statement sought by the applicant did in fact exist.
The refusal to allow access was made on the grounds that the public interest considerations against disclosure under clauses 1 (d) and 3 (b) of the Table to section 14 of the GIPA Act outweighed the public interests in favour of disclosure.

Applicant's Submissions

The applicant did not tender any evidence but instead read a prepared statement in which the applicant set out the background to the matters and reasons relating to the request. The applicant submitted that the document was not sought for "revenge, retribution, harassment or any other negative motive which would be against the public interest". It was submitted that it was sought for reasons which the applicant described as "positive outcomes which are in the interests of my own family and friends, the interests of ... [others] and their family and friends, and possibly many others".
Another reason advanced for seeking the statement was to allow the applicant to use it to obtain an expert medical professional opinion on "repressed memory" and "false memory" theories.
The applicant submitted that for those reasons, disclosure was in the "public interest."
The applicant also offered to provide undertakings to limit the way in which the statement would be used if access was to be provided.

Confidential Evidence and Submissions

Without objection, I received into evidence under section 107(3) of the GIPA Act, certain confidential material tendered by the respondent which I reviewed outside the hearing room in the absence of both parties. For the purpose of determining this application and having reviewed the confidential material, I was satisfied that it was not necessary for me to conduct any part of the hearing in the absence of the public or the review applicant.
The confidential statement of the complainant (Confidential Exhibit 1), provided me with some background and understanding of the nature of the allegations raised by the complainant but I have not had the need to make any findings about those matters for the purpose of determining this application. It was common ground between the parties that the allegations made by the complainant against the applicant and many others were of the most serious kind, involving a history of allegedly serious criminal sexual assaults.
I also received into evidence a confidential affidavit of Detective Sergeant Jason Ferns (DS Ferns) dated 31 January 2020 (Confidential Exhibit 2). The confidential parts of Exhibit 2 were marked in red (and redacted in the open version of the affidavit).
Having read the confidential affidavit, I decided that the evidence contained in the open version of DS Ferns' affidavit dated 31 January 2020 was sufficient for me to deal with the application for review.
I also received a confidential version of the respondent's written submissions. The confidential parts were marked in red (and were redacted in the open version).
The confidential aspects of the material in Confidential Exhibit 2 and the confidential parts of the respondent's written submissions concerned very discrete matters. I have not relied upon or had regard to any of those confidential matters in making this determination.
I have approached my decision-making only on the basis of the open material before the applicant and me.

"Open" Evidence and Submissions

The respondent submitted: 1. Firstly, that the complainant's statement is information that is subject to a conclusive overriding public interest against disclosure of government information described in Schedule 1 of the GIPA Act; and 2. Secondly and alternatively, the respondent submitted that "the public interest test" establishes an overing public interest against disclosure.
The respondent relied upon an open version of the affidavit of DS Ferns. 1. DS Ferns has extensive experience in the investigation of allegations of sexual assault and is currently the Team Leader of the Child Abuse and Sex Crimes Squad. In his affidavit, he deposed to the following based on his inquiries and experience: 2. the investigators involved with this matter have not released or disclosed any of the information or evidence in relation to the investigation; 3. the applicant may have some general awareness that there are other persons of interest the subject of the investigation but not the identity of those persons; 4. a brief of evidence has been served on the Director of Public Prosecutions (DPP) for the purpose of obtaining advice as to whether there is sufficient information to commence a prosecution. The brief contained the complainant's statement. 5. there are various complexities and sensitivities associated with investigations of sexual assault and dealing with complainants making such allegations. In particular, DS Ferns explained the need to manage and mitigate the often painful and uncomfortable feelings expressed by complainants. A complainant is told that his or her statement and contact details will not be released and "the information they provide will not be openly discussed with people outside the investigative team, except to the extent necessary to progress the investigation"; 6. a complainant is told that "unless the matter proceeds to a trial, which gives rise to a legal requirement to produce the complainant's statement to the defendant, the statement will be treated confidentially by Police. The complainant is also made to understand that, if an investigation never proceeds to trial, Police will continue to keep the complainant's statement confidential." 7. the adverse effect of releasing statements made by complainants, included: 1. (i) a likely prejudice in the ability to obtain the supply of similar information from complainants in the future; 2. (ii) a loss of trust in the relationship between the complainant and the Police to gain the cooperation and overcome barriers with complainants who fear reprisals or the breakdown of relations between family or community group; 3. (iii) a loss of faith in the Police generally which would be likely to operate as a powerful disincentive in reporting alleged offences of this type; 1. statements of complainants are "critical" in these matters, and particularly in cases involving allegations of historical sexual abuse because of the limited physical evidence which might otherwise be available; 2. unless a complainant expressly consents to the release of a statement, it "will never be released during the course of an investigation;" 1. where there are numerous persons of interest, as in the present case, the release of a complainant's statement increases the risk of collusion between alleged offenders and the possibility of pressure being placed on family members who are likely to be potential witnesses in any prosecution; and 2. the release of the statement will prejudice the effectiveness of any ongoing investigation.
Exhibit A tendered by the respondent is an email from the DPP to the respondent which confirms that the DPP is presently preparing an advice on a possible prosecution and does not consent to the disclosure of the complainant's statement.

Consideration

In addition to the considerations against disclosure relied upon in the reviewable decision, the respondent advanced additional considerations against disclosure.

Conclusive Overriding Public Interest

The respondent's primary submission was that the complainant's statement is "excluded information" and subject to a conclusive overriding public interest against disclosure.
The respondent relied upon Section 14 (1) of the GIPA Act which provides: "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"
Clause 6 (1) of Schedule 1 of the GIPA Act states: "It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of".
The definition of "excluded information of an agency" specified in Schedule 2 means "information that relates to any function specified in that Schedule in relation to the agency."
Clause 1 of Schedule 4 of the GIPA Act states: "excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency."
Schedule 2 is headed "Judicial and Prosecutorial Functions" and describes the functions of the DPP as including "prosecuting functions" (see clause 1). Section 7 of the Director of Public Prosecutions Act 1986 (DPP Act) similarly describes the principal functions of the DPP as (including) the institution and conduct of prosecutions.
This Tribunal held in Betzis v Commissioner of Police [2020] NSWCATAD 71: "The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information" citing Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41].
However, while the considerations of a conclusive overriding public interest against disclosure apply to the statement when in the possession of DPP for the purpose of the DPP providing advice to the respondent in relation to a prosecution, it is only "excluded formation" insofar as it relates to and comes within the prosecuting functions of the DPP: Miller v Director of Public Prosecutions [2012] NSWADT 38 at [30]-[32]. Schedule 1 does not extend those protections to any of the functions of the respondent.
The agency in this case is the DPP and not the respondent. The "prosecuting functions" under the Schedule 1 exemption are being performed by the DPP and not by the respondent.

Overriding Public Interest

In its reviewable decision, the respondent relied upon the "overriding public interest against disclosure".
Section 5 of the GIPA Act provides: "There is a presumption in favour of the disclosure of vernment information unless there is an overriding publicinterest against disclosure."
Section 12 of the GIPA Act further also provides that there "is a general public interest in favour of the disclosure of government information".
Section 13 of the GIPA Act sets out the "public interest test" which requires a determination of whether, "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations in favour of disclosure.
The Table to section 14 of the GIPA Act sets out the matters which may be taken into account as public interest considerations against disclosure: section 14(2).
Section 55 (3) provides that personal factors against providing access may also be taken into account if they are relevant to the considerations in clauses 2-5 of the Table to section 14.

Clauses 1 (d) and 3 (b) of the Section 14 Table

Clauses 1 (d) and 3 (b) in the Table to section 14 were the only grounds relied upon in the reviewable decision to refuse disclosure. Relevantly, these provide that there is a public interest against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: 1. Clause 1 (d): "prejudice the supplier to an agency of confidential information that facilitates the effective exercise of that agency's functions". 2. Clause 3 (b): "contravenes an information protection principle under the Privacy and Personal Information Protection Act 1998…" (PPIP Act).
It is only necessary that each of the considerations in the Table to section 14 "could reasonably be expected" to have the effect identified. 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 (NSW) [2011] NSWADT 286 at [41].
The respondent submitted that all three elements or limbs of clause 1 (d) were satisfied in that: 1. the information was obtained in confidence; 2. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future; and 3. the information facilitates the effective exercise of the agency's functions.
For the reasons which follow, I find that the respondent has satisfied each of the three elements of clause 1 (d).
As to the first limb of "confidentiality", the information was confidential on the basis of the test set out in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [65]: "... 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."
The respondent submitted and I accept, that as DS Ferns explained in his affidavit, the time or point at which the complainant's information was received was when it was recorded in writing and signed and witnessed by the officer in charge. This occurred only after the complainant had been assured that the statement will be treated confidentially and not be released unless the matter proceeds to trial.
The Tribunal has consistently affirmed the confidentiality of statements made by complainants to the Police for the purpose of clauses 1 (d) (and also cl 1 (f)) in the Table to section 14: Smith v NSW Police Force [2015] NSWCATAD 32; Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 10; DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114; DYD v Commissioner of Police [2019] NSWCATAD 265: also Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19.
As to the second limb concerning the effect on the future supply of information, I also accept the respondent's submission that this is concerned with "broader operational" considerations.
As I set out above, one of the matters relied on by DS Ferns was the need to build a level of trust with complainants. Disclosure would be seen as a breach of trust and breach of the promise of confidentiality. The validity of these grounds being relied upon to oppose disclosure has been recognised by this Tribunal and the NSW Supreme Court: Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 10 at [25]-[26]; Transport for NSW v Searle [2018] NSWCATAP 93 at [64]-[65]; Simring v Commissioner of Police [2009] NSWSC 270 per Smart AJ at [69].
As to the third limb of "prejudice", I accept the respondent's submission that it could reasonably be expected that disclosure could prejudice the supply of confidential information to the Police. Also, this in turn would prejudice the effective exercise of Police investigative and law enforcement functions and that factor should be afforded substantial weight: Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 10 at [17] and [31].
In relation to clause 3 (b), which was the second ground relied upon against disclosure in the reviewable decision, the respondent submitted and I accept, that disclosure of personal information contained within the complainant's statement, particularly given its highly sensitive nature, would contravene s 18 (1) of the PPIP Act and that none of the exceptions in s18 (1) (a) - (c) are engaged. In Cheney v Mid North Coast Local Health District [2014] NSWCATAD 220, the Tribunal held that personal information involving allegations of child sexual assault were of "an extremely serious and sensitive nature" and should be afforded significant protection.
Given my findings above, I have not found it necessary to make separate and further findings in respect of the other grounds raised by the respondent in relation to clauses 1 (g), 1 (f), 2 (b), 3 (a) and 3 (e) of the Table to section 14.

Weighing the Public Interest Considerations

Section 55 (1) of the GIPA Act requires me to determine, as to where the balance lies, certain personal factors raised by the applicant and to which I have had regard. These include: 1. the applicant's personal relationship with any other person; 2. the applicant's motives for making the access application; and 3. any other factors "particular" to the applicant.
I am entitled to rely upon the personal factors of the applicant as factors in favour of providing access: section 55 (2).
However, I am only entitled by section 55 (3) to have regard to personal factors for the purpose of the matters under consideration and relied upon by the respondent in clauses 2 (b) and 3 (a), and (e); but not matters relied upon under clauses 1 (d), (f) and (g) of the Table to section 14.
This balancing exercise has been described as "a question of fact and degree, requiring the weighing of competing factors": Hurst v Wagga City Council [2011] NSWADT 307 at [70].
The applicant's interest in knowing the contents of the statement which raises serious allegations against the applicant (and others), while a legitimate personal factor to be taken into account in the public interest test, in this particular case also weighs against disclosure given the relationship between the applicant and the complainant. Further, the very nature of the allegations concerning the applicant arise from that relationship: Commissioner of Police v Danis [2017] NSWCATAP 7 at [48].
The "objectives" for obtaining the statement described by the applicant and mentioned above included a desire to obtain the name of the treating psychologist; obtain a type of "second opinion" by providing the statement to a medical expert specialising in "repressed memory and false memory" theories; and to be able to dispute and refute the allegations by a better understanding of the details of the allegations.
The applicant also submitted that it was "surely in the public interest" for access to be allowed to enable the information to be used for "positive outcomes and objectives" and "not for revenge, retribution [or] harassment". This Tribunal has held that a private and personal interest in obtaining information does not necessarily amount to a public interest: JY v Commissioner of Police [2008] NSWADT 306; APD v Commissioner of Police, NSW Police Force [2012] NSWADT 42.
In relation to the applicant's offer to be provided access "on terms", section 73 (1) of the GIPA Act prevents the Tribunal imposing any terms or conditions on the way in which accessed information may be used. Disclosure is to "the world at large": Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 10.
In considering the "public interest test" for determining whether there is an overriding public interest against disclosure, I am not satisfied that any of the legitimate personal interests advanced by the applicant in knowing the contents of the complainant's statement are sufficient to outweigh public interest considerations against disclosure. As found by the Tribunal in Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 10 at [31]: "It is strongly in the public interest that those who wish to make complaints of sexual assault can do so and, as I have already found, release of the withheld document and documents like it would prejudice future supply of the confidential information which those complaints comprise. It is not enough that the allegations relate to the applicant. In the circumstances set out above, the balance is very clearly against disclosure."
In Smith v NSW Police Force [2015] NSWCATAD 32 at [39], the Tribunal described the public interest in maintaining the flow of information to Police to assist them in the exercise of their functions as a "compelling" consideration.
In that case, as here, the statement concerned "sensitive and serious allegations" which if disclosed to the public "would cause concern for persons providing and reporting that information".

Summary

For the reasons set out above, the unchallenged evidence of DS Ferns in his affidavit has established to my satisfaction that the respondent's decision to refuse access to the requested information was the correct and preferable decision.
I therefore affirm the decision under review.

Orders 1. Order under section 64 (4) of the Civil and Administrative Tribunal Act 2013 and section 107 of the Government Information (Public Access) Act 2009 that: 1. the names of the complainant and applicant not be disclosed or published in these Reasons for Decision or in the record of the proceedings; 2. disclosure of the names of the applicant and the complainant or any information that may identify the applicant or the complainant is prohibited; 3. the evidence, submissions and record of that part of the proceeding conducted in private on 16 March 2020 is not to be released to either the applicant or the public. 1. The decision under review made by the respondent on 9 October 2019 is affirmed.

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: 02 April 2020

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