FDY v Commissioner of Police - [2021] NSWCATAD 285 - NSWCATAD 2021 case summary — Zoe

NSWNSWCATAD

FDY v Commissioner of Police

[2021] NSWCATAD 285

NCAT Administrative and Equal Opportunity|2021-06-30

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Court

NCAT Administrative and Equal Opportunity

Decision date

2021-06-30

Source

Original judgment source is linked above.

Judgment (58 paragraphs)

[1]

Morgan v Commissioner of Police [2021] NSWCATAD 173 NSW Police Force v Cammilleri (GD) [2012] NSWADTAP 19 Page v Commissioner of Police [2020] NSWCATAD 163 Raven v University of Sydney [2015] NSWCATAD 104 Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163 Simring v Commissioner of Police [2009] NSWSC 270 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Transport for NSW v Searle [2018] NSWCATAP 93 Category: Principal judgment Parties: FDY (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Guardian ad Litem, Bill Hoyle (Applicant) Crown Solicitor (Respondent) File Number(s): 2020/00086251 Publication restriction: 1. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of the material filed by the respondent on a confidential basis, the submissions made in private hearing before the Tribunal, the record of that part of the proceedings conducted in private hearing and those paragraphs of these reasons identified as [NOT FOR PUBLICATION] is prohibited and is not to be released to the applicant, his appointed Guardian ad Litem or the public.

[2]

By consent of the parties, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the name of the applicant in these proceedings is prohibited and the name of the applicant will be referred to by pseudonym 'FDY' in the Tribunal's published reasons [2021] NSWCATAD 285.

[3]

Introduction

FDY (the applicant) applied to the Tribunal on 18 March 2020 for administrative review of determination by the Commissioner of Police (the respondent) of an access application made under the Government Information (Public Access) Act 2009 (NSW) (the Act).
FDY's access application of 21 November 2019 was in the name of his mother and sought access to information relating to the attendance of NSWPF at her premises (at which the applicant was also residing) on 12 November 2019 (the Incident).
By agreement between the parties, the scope of the application was refined to a request for a copy of the following documents in relation to a police event report E75378688:

Police event report
Police case report
Note book entries
Police & witness statements
CAD (incident) report
Triple zero call
In-car-video (ICV), audio or CCTV footage
ERISP interviews (recorded or written)
Photographs

On 5 December 2019, the respondent refused access to the information, asserting that there was an overriding public interest against disclosure.
FDY sought review of that determination by the Information Commissioner who provided a report dated 17 February 2020 recommending that the respondent make a new decision about the access application by way of an internal review, pursuant to s 93 of the Act.
Following receipt of the Information Commissioner's report, FDY sought review of the respondent's determination of 5 December 2019.
The respondent acted on the Information Commissioner's recommendation and made a new determination dated 25 March 2020 which is the decision under review in these proceedings (the Decision).
In its Decision, the respondent: 1. provided access in full to 3 Incident (CAD) Reports and 4 audio recordings, one of a triple zero call and 3 callbacks; 2. provided partial access to police notebook entries, and otherwise refused access to information within those notebooks on the grounds that there was an overriding public interest against disclosure (relying upon clauses 1(d), 1(f), 3(a) and 3(b) in the Table in clause 14 of the Act (the s 14 Table)); 3. provided partial access to a police event report referred to as COPS Event Report E75378688 (the COPS Event Report), and otherwise refused access to information within that report on the grounds that there was an overriding public interest against disclosure (relying upon clauses 1(d), 1(f), 3(a) and 3(b) in the s 14 Table); 4. refused access to footage from body-worn video footage on the grounds that there was an overriding public interest against disclosure (relying upon clause 6(a) in the s 14 Table); and 5. refused access to two radio broadcasts on the grounds that there was an overriding public interest against disclosure (relying upon clauses 1(d), 1(f), 3(a) and 3(b) in the s 14 Table).
In these proceedings, FDY sought access to information that had been redacted from the police notebook entries and the COPS Event Report. He also sought access to the body-worn video footage and radio broadcasts that were refused to be released, hoping that the information will enable him to clarify what really led to the Incident on 12 November 2019, whether the Fixated Persons Investigation Unit (FPIU) within the New South Wales Police Force (NSWPF) orchestrated it, and what actually occurred on the day of the Incident when police officers entered the premises where he and his mother resided.

[8]

Confidential material

The respondent also provided to the Tribunal on a confidential basis, unredacted copies of police notebook entries (referenced as pages 9-10 in the Schedule of Documents attached to the Respondent's Decision), an unredacted copy of the COPS Event Report (referenced as pages 11-16 in the Schedule of Documents), body-worn video footage (referenced as IMS ID-7807530-0003 and IMS ID-7807540-0003 in the Schedule of Documents) and two radio broadcasts of 12 November 2019 referred to in the Schedule of Documents. The confidential material was marked for identification as "Exhibit CR1".
The confidential material was read, viewed and listened to by the Tribunal Member and was not provided to the applicant, the Guardian ad Litem appointed for the applicant or the public.
Section 107(1) of the Act (extracted below) requires the Tribunal to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure: "107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure."
To give effect to the prohibition in s 107(1) of the Act, the Tribunal made an order under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) that the confidential material, submissions made in private hearing before the Tribunal, the record of that part of the proceedings conducted in private hearing and those paragraphs of these reasons identified as [NOT FOR PUBLICATION] must not be disclosed to the applicant, the appointed Guardian ad Litem or the public. Section 64(1)(d) is set out below: "64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - … (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings."

[10]

Public hearing

At the commencement of the public hearing, Mr Hoyles stated that he and the applicant held different views as to what the hearing was about. Mr Hoyles said there were two issues to raise: Firstly, the applicant wished to have an in-person hearing. Secondly, the applicant had provided Mr Hoyles with new material that he wished the Tribunal to take into account (Exhibit A1).
With respect to the first issue, Mr Hoyles advised the Tribunal that the applicant sought to have the matter adjourned, reasoning that there was a benefit in having an in-person hearing so that the honesty of the respondent's witness, and the veracity of his evidence, could be tested under cross-examination. In referring to this issue, no submission was put on behalf of the applicant as to the reliability or credibility of the witness.
Ms Mattes, the respondent's legal representative, argued that there was nothing critical in the matter requiring an in-person hearing and that there were no issues of credit to be examined. Ms Mattes advised that Inspector Mansley was available to dial into the proceedings and, in her view, it was appropriate to proceed with the hearing by telephone, as arranged.
Mr Hoyles stated that, speaking as FDY's appointed Guardian ad Litem, he considered it was in FDY's best interests for the hearing to proceed.
As to the second issue, Mr Hoyles advised that, early on the morning of the hearing, he had received from FDY an additional large volume of new material running to hundreds of pages. In Mr Hoyles' view, the material was not able to be used in these proceedings. He went on to submit that the applicant sought to rely upon the additional bundle of documents (Exhibit A1) subject to any objection by the respondent, and he foreshadowed that reference would only be made to one page in that bundle.
A short adjournment took place to allow Mr Hoyles to send Exhibit A1 to the respondent and Ms Mattes (representing the respondent) and to allow Ms Mattes and the respondent time to read the material. Upon resumption of the hearing, Ms Mattes commented that Exhibit A1 appeared to be of no relevance. However, Ms Mattes advised that she was prepared to allow questions to be put to the respondent's witness and that she would assess the relevance of them at that time.
The Tribunal decided to proceed with the hearing as listed, assuring Mr Hoyles for the benefit of the applicant that there would be adequate time for cross-examination of the respondent's witness.

[12]

Background

The GAL Report set out some personal information about the applicant to provide context for his anxiety about the Incident which underpinned the reasons for making his access application and requesting administrative review.
FDY was described as being of the Druse faith, which "rejects major principles of mainstream Islam in favour of an eclectic mix of Islam, Christianity Platonic philosophy, and Gnosticism."
The GAL Report submitted that: 1. FDY is "suspected" of being a "threatening person with violent and extremist views" and a person who hates police. Other descriptors were used, however, in my view it is not necessary to note them all in these reasons; 2. FDY is regarded as a "threat" to Australian society such that he has been referred to the Fixated Persons Investigations Unit of the NSWPF and has been identified as a person of interest (POI) under the Subject Target Management Plan (STMP); 3. the STMP engages in "proactive policing" whereby "the POI is under constant scrutiny, has multiple police encounters and home visits, is charged with offences wherever possible (even if they have to subsequently be withdrawn), and evidence is constantly being sought to prove the theory that the POI will commit a crime in the future and it needs to be prevented".
The Tribunal understands the STMP is a NSWPF initiative designed to reduce crime among high-risk individuals, through proactive policing. According to the GAL Report, while there is apparently no formal legal process or obligation to inform a person being monitored and no basis on which an individual can challenge their place on the STMP, the applicant nonetheless believes that he has been identified and placed on the STMP.
FDY believes that he is the subject of multiple proactive policing incidents in which police have interacted with him, his elderly mother, his children, and others, with a view to preventing him from allegedly engaging in unspecified future criminal acts. FDY's assertions were, in general terms and to a limited extent, supported by written evidence of a barrister provided in a matter unconnected with this administrative review, that one particular police officer appeared to be "zealous" in his approach to FDY.
The overall impact of FDY's interactions with government agencies are referenced in a consultant psychologist's report dated 15 May 2021 annexed to the GAL Report. The report notes the trauma, grief and distress experienced by FDY associated with being arrested and incarcerated (wrongfully) in connection with complaints against him by the Department of Education, and being physically assaulted during incarceration as a result of being labelled a paedophile. The psychologist's report noted that FDY has suffered the stress of having allegations of sexual abuse of his own children made against him, although that allegation has apparently been removed.
Mr Hoyle's supplementary submission noted that the impact of these matters is not confined to FDY. They have had a detrimental effect upon the health of his mother as well as his children.
It is in this context that the applicant suspects that the Incident that occurred on 12 November 2019 was one of the proactive policing practices. In making his access application, FDY sought reassurance that the Incident was not triggered by false accusations having been made against him by the same police informant whom FDY asserts had made multiple other unsubstantiated allegations against him.

[14]

The Incident on 12 November 2019

It is not in dispute between the parties that two officers from Bankstown Police Area Command attended the residence of FDY and his mother on 12 November 2019 for the purpose of conducting a welfare check on FDY's three children who had not attended school for a week prior to the police visit.
Inspector Mansley's affidavit confirms that members of the community provided information to the police for the purpose of conducting the welfare check at the applicant's residence.
According to the GAL Report, in FDY's view, the person who raised concerns with the NSW Police was a person who had access to school attendance records. FDY's account of the children not attending school was that they were absent due to illness (supported by medical certificates) and the children's mother had telephoned the school in the week before the Incident to advise about the absence of the children.
It is also not in dispute that the police entered the premises at a time when FDY's mother was home alone. FDY's mother became alarmed after hearing what she described as a "crashing sound", unaware that it was police undertaking a welfare check on the children, and made a triple zero call.
Inspector Mansley's affidavit states that he reviewed relevant excerpts of two police radio broadcasts at 12:03pm and 4:00pm on the day of the Incident. The excerpts contain the personal information of third parties and other information that Inspector Mansley described as being "sensitive" and "police methodology".
Inspector Mansley also stated that he reviewed the body-worn video footage taken at the applicant's residence during the police welfare check. The first recording, taken at approximately 12:04pm shows two police officers in full uniform entering the applicant's residence for the purpose of conducting a welfare check. The police officers found a female resident in the premises and identified themselves as police officers. The second recording, taken at approximately 12:33pm, shows the same two police officers in uniform at the applicant's residence explaining to the female resident why they had entered her home earlier in the day. The officers identified themselves and spoke with the female occupant who opened the front door and remained standing behind the partially opened door.
For the purpose of these reasons, it is not relevant to refer to the many matters noted in the GAL Report as being disputed by FDY.
Relevant to the context in which the access application was made, is that FDY disputes the motivation behind the visit by police. In FDY's view, the visit was orchestrated by police from the FPIU to put pressure on him and his family using his children's illness and school absence as an "excuse" for the visit.

[32]

Relevant provisions of the Surveillance Devices Act 2007

Section 2A of the Surveillance Devices Act 2007 (NSW) (the SD Act) includes, in a description of the objects of the Act, a provision to ensure the privacy of individuals is not unnecessarily impinged upon in connection with the use of surveillance devices: 2A Objects of Act The objects of this Act are - (a) to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations, and (b) to enable law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions, and (c) to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices.
The term "surveillance device" is defined in s 4 of the SD Act to include an optical surveillance device (such as a body-worn video): surveillance device means - (a) a data surveillance device, a listening device, an optical surveillance device or a tracking device, or (b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a), or (c) a device of a kind prescribed by the regulations.
Section 50A of the SD Act sets out the circumstances in which a police officer uses body-worn video: 50A Police use of body-worn video (1) The use of body-worn video by a police officer is in accordance with this section if - (a) the police officer is acting in the execution of his or her duty, and (b) the use of body-worn video is overt, and (c) if the police officer is recording a private conversation, the police officer is in uniform or has provided evidence that he or she is a police officer to each party to the private conversation. (2) Without limiting the ways in which the use of body-worn video may be overt for the purposes of subsection (1)(b), the use of body-worn video is overt once the police officer informs the person who is to be recorded of the use of body-worn video by the police officer. (3) The use of body-worn video by a police officer is also in accordance with this section if - (a) it is inadvertent or unexpected, or (b) it is incidental to the use of body-worn video by the police officer in the circumstances set out in subsection (1).
Section 39(d) of the SD Act relevantly defines "protected information" as "any information obtained from the use, in accordance with section 50A, of body-worn video by a police officer", and s 40(1) of that Act creates an offence with respect to "protected information": Prohibition on use, communication or publication of protected information (1) A person is guilty of an offence if - (a) the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and (b) the person knows that, or is reckless as to whether, the information is protected information, and (c) the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section. Maximum penalty - Imprisonment for 2 years.
Section 40(2) of the SD Act creates an aggravated form of the offence in s 40(1) for which the maximum penalty is imprisonment for seven years.
Exceptions to the offence provisions appear in ss 40(3)-(9) of the SD Act and relevant regulations in the Surveillance Devices Regulation 2014 (the SD Regulation).

[33]

The applicant's case

The applicant's motivation for seeking access to the withheld information and obtaining 'closure' with respect to the Incident has already been discussed.
Mr Hoyles cross-examined Inspector Mansley who confirmed that the NSW Police received information from an informant about FDY's children and that the identity of the informant was redacted from the information provided to FDY because of concerns about confidentiality.
It was suggested, on behalf of FDY, that a false and malicious allegation by an informant had triggered the welfare check. Inspector Mansley's evidence was that he was not aware whether the informant in connection with the request to NSW Police to undertake a welfare check had made any previous allegations against FDY.
Mr Hoyles, referring to page 7 of Exhibit A1 (responding to FDY's FOI application to the Australian Federal Police (AFP)), asked Inspector Mansley whether he was aware whether an AFP alert around the date of 14 November 2019 and an AFP internal email dated 13 November 2019 arose out of the welfare check on his children. Inspector Mansley responded that he had "no idea".
With respect to the body-worn video footage, it was submitted for the applicant that s 40(4A)(c) of the SD Act and Reg 4(1)(c) and Reg 4(1)(d) of the SD Regulation operate as exclusions under the "protected information" provisions of the SD Act and thus permit disclosure of such footage. Section 40(4A)(c) of the SD Act provides: (4A) Information obtained from the use, in accordance with section 50A, of body-worn video by a police officer may also be used, published or communicated - (a) … (b) … (c) for any purpose prescribed by the regulations.
Regulations 4(1)(c) and 4(1)(d) provide: 4 Use, communication or publication of police body-worn video (1) For the purposes of section 40(4A)(c) of the Act, the information obtained from the use, in accordance with section 50A, of body-worn video equipment by a police officer may be used for the purposes of any one or more of the following - … (c) any proceedings of a court or tribunal in which the NSW Police Force or the State is a party or in which a member of the NSW Police Force is called as a witness, (d) the investigation of a complaint against, or the conduct of, a member of the NSW Police Force, …
Mr Hoyles' supplementary submission argued that the decision in Morgan's case should be applied in FDY's case. In Morgan's case, a copy of body-worn video footage was released, with the images of third parties pixelated. The case concerned the controversial treatment of Aboriginal people by NSW Police. Mr Hoyles argued that the controversy over how the STMP is being implemented and how it treats individuals who are suspected of being likely to commit offences in the future as being guilty until proven innocent, is analogous to the circumstances in Morgan's case and that it is in the public interest to disclose the body-worn footage.

[50]

Clauses 1(d) and 1(f) of the s 14 Table - prejudice the supply of confidential information that facilitates the effective exercise of an agency's functions; prejudice the effective exercise by an agency of the agency's functions

Inspector Mansley's affidavit evidence was that both the notebook entries and the COPS Event Report contain information provided by members of the community to police officers for the purpose of having a welfare check on the applicant's children undertaken at the address of the applicant and his mother.
I accept that it is essential for members of the community to feel comfortable in providing full and frank information to police officers and support staff regarding incidents (which would include welfare checks on families and children) and suspected crimes. I also accept that witnesses and informants are more likely to feel comfortable in providing information to police in the knowledge that the information they provide will remain confidential and not expose the individuals to reprisal action within the community or legal action.
Whilst, as a general comment, the community at large will not have knowledge of Regulation 76 of the Police Regulation 2015, the NSWPF's Customer Service Charter is available online and it is likely that members of the community who have visited the police website will have an expectation that information provided to police officers will be kept confidential.
On the material before me, I find that the individuals who supplied the NSWPF with the information in the notebook entries (and reflected in the COPS Event Report) did so on the understanding that the information would remain confidential.
In broad summary, Inspector Mansley's evidence was that: 1. the NSWPF relies to a significant extent on reports from community members or informants as to incidents and crimes underway or suspected (often through emergency triple zero calls or calls to a local police station), in order to carry out its core functions effectively and efficiently; 2. information received from the community can have a significant impact upon the speed and effectiveness of the police response and its ability to prevent criminal conduct or harm to members of the community; 3. disclosure of information in response to GIPA applications would adversely affect the willingness of members of the community to cooperate with the police, and would likely undermine public confidence in the police generally.
I accept his evidence as being reliant upon his knowledge and experience of more than 30 years of service with the NSWPF.
Emergency triple zero calls to police have been considered by the Tribunal in relation to cl 1(d) and 1(f) of the s 14 Table. In Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80 (Camilleri) at [40] and [45]-[46], the Tribunal observed that the expectation of confidentiality in relation to triple zero calls was well established and that "it is of little, and perhaps no, consequence that the caller does not care whether confidentiality is afforded to their communication".
The test in relation to cl 1(d) is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in future, but whether the agency will be able to obtain such information in future if trust and confidence in the NSWPF has been eroded: Camilleri at [38].
The respondent contended that the NSWPF would be unable to obtain the type of information it received from the informant or similar sources in the future if such information was disclosed. The question as to prejudice to future supply is not to be determined by reference to the particulars of each particular situation but at a "broader operational level". It is not necessary to show that it could reasonably be expected to occur on every occasion: NSW Police Force v Cammilleri (GD) [2012] NSWADTAP 19 at [21], [22] and [26]."
I accept that the community's trust and confidence in the NSWPF and the continued receipt of confidential information is essential to the effective performance of the NSWPF functions.
If that type of information was not provided to NSWPF in the future, it was argued that this would prejudice the respondent's ability to effectively exercise its functions which include "the protection of persons from injury or death": s 6(3) of the Police Act 1990 (NSW). It was argued this would encompass the respondent's ability to conduct welfare checks, similar to the Incident.
Relying upon the decision in Simring v Commissioner of Police [2009] NSWSC 270 at [69], it is reasonable to expect that if the community trust in the police maintaining the confidentiality of information provided to it, is breached, the flow of information to police could dissipate. I also accept that, if that were to occur, it would severely impact the respondent's effective exercise of its functions, including carrying out welfare checks.
In balancing the personal factors of the application and the considerations in favour of disclosure, I find that the balance weighs against disclosure, to ensure the community continues to feel comfortable in providing information to police and remains confident that such information will remain confidential.
I am therefore satisfied there is an overriding public interest consideration against disclosure of the information redacted from the COPS event report and the notebook entries under cl 1(d) of the s 14 Table. I give this consideration a substantial amount of weight.

[52]

Clause 3(a) and clause 3(b) of the s 14 Table

Clause 3(a) in the s 14 Table provides that there is a public interest against disclosure of information if disclosure of the information could be reasonably be expected to reveal the personal information of individuals.
The term "reveal" is defined in schedule 4, clause 1 (Definitions) of the Act to mean "disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."
The personal information of an informant (name, address, contact numbers and email address) is contained in the COPS Event Report. The personal information of an informant (name and contact number) is also contained in the notebook entries. This personal information clearly renders the identity of those informants apparent.
Disclosure of the information that has been redacted from the COPS Event Report and the notebook would "reveal" the personal information of the informants. There is no evidence before the Tribunal that the personal information of the informants has been publicly disclosed. I am satisfied that the information was given in confidence to police for the purpose of having a welfare check undertaken.
I am satisfied that the respondent has justified that cl 3(a) is a relevant public interest consideration against disclosure of the information. In my view, when balanced against the personal factors and considerations in favour of disclosure, the consideration in cl 3(a) should be given significant weight against disclosure.
Likewise, I am satisfied that the respondent has justified that cl 3(b) is a relevant public interest consideration against disclosure of the information that has been redacted from COPS Event Report and the notebook. Agencies, including the NSWPF, are expected to comply with the statutory obligations under the PPIP Act and disclosure of the information would contravene s 18 of that Act.
The exemptions that apply under s 18 of the PPIP Act do not apply to the circumstances in this case. The disclosure of information is not directly related to the purpose for which the information was collected (refer to s 18(1)(a)), and the informants involved were not aware that their personal information would be disclosed (refer to s 18(1)(b)) to FDY. Disclosure would therefore be a clear contravention of s 18 of the PPIP Act (IPP 11).
Accordingly, I am satisfied that cl 3(b) of the s 14 Table applies as a consideration against disclosure. I give the consideration significant weight and find that it outweighs any personal factors and any considerations in favour of disclosure.
I affirm the respondent's Decision with respect to the COPS Event Report and the police notebook entries.

[53]

Issue 2: Body-worn video footage

I am satisfied that the footage requested by FDY is "protected information" and therefore subject to the prohibition against disclosure under the SD Act.
I am satisfied that s 40(1) of the SD Act is a "secrecy provision" for the purposes of cl 6 of the s 14 Table. It is clear from the language used, structure and context of the SD Act that this legislation creates a very strict and limited regime through which information obtained through the use of surveillance devices (such as body-worn video equipment) can be disclosed.
The intent of the legislation to limit the impact of surveillance on the privacy of individuals was recognised in Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324 (Voitenko) at [87]: "The provisions of the SD Act … establish important prohibitions upon the use of recordings or the product produced by the use of surveillance devices, in particular upon the use of 'protected information' as defined. These, inter alia, seek to limit the use of such information to the sphere of law enforcement investigations and for use in criminal proceedings in the event of a criminal prosecution(s). The prohibition under s 40 in other words evidences a legislative intent to limit the impact of surveillance upon the right to privacy."
The strictness of the regime was recognised in Cheung v Commissioner of Police [2019] NSWCATAD 249 (Cheung) at [55]: "The use of surveillance devices, including body-worn video, is an essential and integral part of the detection and investigation of criminal offences in New South Wales. The legislation governing the use of such devices is also designed to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices. As a result, the Surveillance Devices Act and Regulation establish a strict regime for the collection, use and disclosure of information gathered through the use of the surveillance device, including body-video footage. In my view, for these reasons considerable weight should be given to this public interest consideration against disclosure."
The strictness of the regime is reflected in the serious penalties available for breaches of s 40(1) and s 40(2) of the SD Act, as noted in the Voitenko decision at [99]: "the fact that a breach of s 40 … is punishable by a term of imprisonment with the above maximum penalties underscores the legislature's intention to secure protected information by the imposition of a substantial punishment in the event of a transgression."
It is noteworthy that the public interest consideration under cl 6 of the s 14 Table "extends to consideration of the policy that underlies the prohibition against disclosure." In this regard, the respondent's submissions noted that one of the objects of the SD Act to restrict the use, public and communication of information obtained through the use of surveillance devices was identified in p.1 of the Explanatory Note to the Surveillance Devices Bill 2007. Further, the second reading speech to the Surveillance Devices Amendment (Police Body-Worn Video) Bill 2014 reinforces privacy considerations, the restrictive prohibitions on the use, communication and publication of information and the limited nature of any permitted exceptions: "Appropriate safeguards in the bill maintain an individual's right to privacy by regulating the use, communication and publication of information obtained from body-worn video devices. The restrictions that currently apply to information obtained from other types of surveillance devices will generally apply to information obtained using body-worn video devices. The restrictions will prohibit the use, communication and publication of information unless necessary for a specified purpose such as the investigation of a complaint against a police officer." (Parliamentary Debates, Legislative Assembly, 22 October 2014, 1639)
Additionally, as pointed out in the respondent's submissions, the exceptions to the prohibition on use, communication and publication are limited to three classes in ss 40(3)-(9) of the SD Act. In essence, there are exceptions for the purposes of law enforcement activities; exceptions to protect the safety of persons or property; and exceptions in relation to the conduct of public officers.
None of the permitted exceptions to the offence provisions as set out in ss 40(3)-(9) of the SD Act and cl 4 of the SD Regulation apply in these proceedings. The use in relation to disclosure under the GIPA Act is not referred to in the SD Regulation.
I consider that the case before me should be distinguished from Morgan's case for a number of reasons: 1. Morgan's case involved what was described as a long history of over-policing of Aboriginal people in Australia and the issue of Aboriginal deaths in custody. This is an issue that, in my view, satisfies the example of a public interest consideration in favour of disclosure in s 12(2)(a) of the Act. FDY's belief that he has been the subject of over-policing are not insignificant and have had a profound effect upon him and no doubt his family. However, the history concerning the treatment of Aboriginal people by police is a much larger and more prevalent issue, coming within the meaning of s 12(2)(a) of the Act. It has been the subject of public inquiries and 'Black Lives Matter' protests, driving public opinion and community support with "great strength of feeling": Commissioner of Police v Bassi [2020] NSWSC 710 at [18]-[19]; 2. the circumstances in Morgan's case involved Mr Morgan himself being recorded via the use of body-worn video cameras. It was therefore accepted that Mr Morgan may have had a legitimate interest in reviewing the footage in order to assess whether he might have any available cause of action; 3. two of the persons who appeared in the footage in Morgan's case provided their consent for the release of their identity (notwithstanding Senior Member Mulvey found that cl 3(a) of the s 14 Table was a relevant public interest consideration against disclosure). In the case before me, no individual depicted in the footage has provided their consent; 4. Morgan's case involved a decision to provide access in a form other than that requested by the applicant. The respondent had provided view-only access in circumstances where the applicant had requested a copy of the footage. However, in the proceedings before me, the Tribunal's task is to decide whether the respondent's Decision to refuse access to the footage is the correct and preferable decision; 5. in Morgan's case, the Tribunal accepted that s 12(2)(a) of the Act applied as a consideration in favour of disclosure in circumstances where the "personal information of third parties could be appropriately anonymised." Privacy concerns could largely be overcome by pixelating the footage so as to remove the personal information of bystanders who were incidentally depicted in the footage. However, in these proceedings before me, having viewed the footage, I am satisfied that pixelation of the footage would not overcome the privacy concerns and therefore would not overcome the public interest considerations against disclosure.
Drawing from the reasoning in Hurst's case, balancing competing interests is a question of fact and degree, and is not one of mathematical calculation. In carefully considering the balancing test, the personal factors favouring disclosure are persuasive. It is understandable, as a result of his prior experiences with the police and having suffered incarceration (apparently without cause), that FDY would suffer anxiety associated with the Incident, and suspect involvement of the FPIU and the informant in relation to previous unsubstantiated charges.
I have already distinguished the circumstances of Morgan's case from FDY's circumstances. On balance, I do not consider that s 12(2)(a) of the Act operates as a consideration favouring disclosure in FDY's case alongside the personal factors of the application, to outweigh the consideration in cl 6 of the s 14 Table.
I have also turned my mind to clause 12(2)(b) of the Act and am of the view that the benefit of informing the public about police practices for dealing with members of the public does not necessarily extend to knowledge of police methodology when undertaking welfare checks and the safety and wellbeing of children may be at risk.
I am satisfied that disclosure of the body-worn video footage to FDY would constitute a contravention of s 40 of the SD Act since the legislation creates a very strict and limited regime through which information obtained through the use of surveillance devices can be disclosed, and none of the exceptions are engaged in this case.
Consistent with the reasoning in Cheung, recognising the strictness of the SD Act, I attach considerable weight to the public interest consideration against disclosure in cl 6 of the s 14 Table and affirm the respondent's Decision on the video footage.

FDY v Commissioner of Police

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Judgment (58 paragraphs)

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