FDY v Commissioner of Police, NSW Police Force - [2022] NSWCATAP 367 - NSWCATAP 2022 case summary — Zoe

NSWNSWCATAP

FDY v Commissioner of Police, NSW Police Force

[2022] NSWCATAP 367

NCAT Appeal Panel|2022-10-14

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Source facts

Court

NCAT Appeal Panel

Decision date

2022-10-14

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

REASONS FOR DECISION

By Notice of Appeal filed on 27 July 2022 the appellant appeals the decision of the Tribunal delivered on 29 September 2021. A previous notice of appeal had been filed but is not relied upon by the appellant, nor is an application for a stay of proceedings and joinder of a third party relied upon.
The appeal arises as a result of the Tribunal's decision relating to the Government Information (Public Access) Act 2009 ("the GIPA Act"). On 21 November 2019 the appellant made an application to the respondent seeking access to records, including footage from a police officer's body -worn video camera ("the video footage"), relating to a visit by police officers to his residence in November 2019. On 5 December 2019, the respondent notified the appellant of its decision under s 58(1)(d) of the GIPA act to refuse to provide access to information the appellant sought.
On or about 17 February 2020, the NSW Information and Privacy Commission issued a report recommending that the respondent make a new decision in respect of the appellant's access by way of internal review. The internal review was conducted. The respondent thereafter decided to provide access to the information sought by the appellant except where there was an overriding public interest against disclosure of the information, which included the video footage. Such notification was provided to the appellant on 25 March 2020.
The appellant then sought review of such decision in the Tribunal. By its decision, (see FDY v Commissioner of Police [2021] NSWCATAD 285) the Tribunal reversed the decision under review, in part, upholding the appellant's claim with respect to access to records, except for the video footage.
The Tribunal found that the release of the video footage was prohibited, by the provisions of the Surveillance Devices Act 2007 (NSW) ("the SDA"); s 39 of which defined the body worn camera footage as any information obtained from the use, in accordance with s 50A of the SDA, of body-worn video by a police officer. As such, section 40(1) of the SDA rendered such information "protected information" and created an offence if that information were disclosed. Accordingly access to such camera footage was refused.

[5]

GIPA Act

The object of the GIPA Act is contained in section 3 and relevantly states: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
Section 14 of the GIPA Act relates to public interest considerations against disclosure and relevantly states: (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. [Note, Schedule 1 does not include a reference to the SDA] (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
A Table follows the above subsections and provides considerations to guide the decision concerning disclosure of information, relevantly as follows: The Table to s 14 GIPA Act ("the Table") 1. Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (a)…(b)…(c)…(d)…(e) [not relevant]; (f) prejudice the effective exercise by an agency of the agency's functions 2. Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. 6 Secrecy provisions (1) there is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) the public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
Section 13 of the GIPA Act provides there can only be an overriding public interest against disclosure of government information for the purposes of the Act when the public interest test in that section is satisfied as follows: "There is an overriding public interest against disclosure of government information for the purposes of this Act (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".
Section 15 of the GIPA Act requires a determination in accordance with certain principles as to whether there is an overriding public interest against disclosure of government information: 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 function so 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.

[9]

Tribunal's findings

Following extensive consideration of the public interest considerations in favour of disclosure, and against disclosure, of the video footage and of other factors relevant to the GIPA act and the SDA, the Tribunal referred, (at [113]) to the balancing exercise which the Tribunal was required to make in respect of the information which the appellant sought. The Tribunal noted the SDA was part of a national legislative scheme; and that in the Tribunal's consideration, the objects of the SDA were to be given precedence in determining the policy underlying the SDA and the provision contained in s 40(1): see paragraphs [215] - [217].
The Tribunal was satisfied that s 40(1) of the SDA comprised a "secrecy provision" for the purposes of cl 6 of the Table, stating: 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 Tribunal then considered the intent of the legislation, namely to limit the impact of surveillance on the privacy of individuals as was recognised in Voitenko t/as Access Party Hire v Zurich Australian Insurance Ltd [2016] NSW SC 324 at [87]; and the strictness of the regime as was recognised in Cheung v Commissioner of Police [2019] NSWCATAD 249 at [55].
The Tribunal also found that none of the permitted exceptions to the offence provisions set out in ss 40(3) - (9) of the SDA and of cl 4 of the SD Regulation applied and stated: The use in relation to disclosure under the GIPA act is not referred to in the SD Regulation.
The appellant relied upon a decision of Morgan v Commissioner of Police [2021] NSWCATAD 173. In that decision Mr Morgan himself was being recorded via the use of body-worn video cameras. The Tribunal distinguished such authority on the basis, inter alia, that Mr Morgan may have had a legitimate interest in reviewing the footage in order to determine whether he might have had any available cause of action.The persons who appeared in the footage provided their consent for the release of the footage.
In the current proceedings at first instance the Tribunal distinguished Morgan on the basis that no individual depicted in the footage had provided their consent to release of the video footage. Further, in Morgan, the respondent was provided view only access when the applicant had requested a copy of the footage. In the current proceedings, the Tribunal member noted that its task was to determine whether the respondent's decision to refuse access was the correct and preferable decision.
In addition, the Tribunal member noted: (5) in Morgan's case, the Tribunal accepted that section 12 (2) (a) [sic, 12 (2)) of the [GIPA] Act applied as a consideration in favour of disclosure in circumstances where the "personal information of third parties could be appropriately anonymized". Privacy concerns could largely be overcome by pixelated 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.
The Tribunal member continued at [156]: [156] I am satisfied that disclosure of the body-worn video footage to FDY would constitute a contravention of s40 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. [157] 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 s14 Table and affirm the respondent's Decision on the video footage.
The Tribunal found: [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 the public interest consideration against disclosure… [57] In conclusion, for the reasons I have given, in weighing the competing public interest, on balance, I am not satisfied that the public interest considerations in favour of disclosure outweigh the strong public interest consideration against disclosure of the information in the form requested. Accordingly, it is my view the respondent's decision to refuse access to a copy of that information is the correct and preferable decision. The decision should therefore be affirmed. [58] Although it is not necessary for me to decide, I note that the strong considerations in favour of access to the information in that the information is the personal information of Ms Cheung can be satisfied by Ms Cheung being granted access, as she has been, to view the footage. Access in that form would change the balance in the considerations in favour of and against disclosure.

[10]

Appellant's Submissions

The appellant submits that the purposes and objectives of the SDA must be considered as set out in s 2A thereof. Included in s 2A of the objects are relevantly: (c) to ensure the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices.
The appellant contends such objecs must be construed in such a way as to provide some flexibility. The appellant refers to the observations of the High Court of Australia in Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531 where the Court, construing the provisions of a compensation statute said, relevantly: [37] Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or remitted words) with the effect of expanding its field of operation… [38] The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgement of matters of degree. That judgement is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that feels "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature". [References omitted]
The appellant acknowledges that the Tribunal correctly identified that the public interest consideration under cl 6 of the table "extends to consideration of the policy that underlies the prohibition against disclosure".
However, the appellant submits that if the person identified in the footage consents to disclosure of such footage, there can be no objection on the ground of the protection of individual rights. During the hearing it was stated that the person shown in the video would provide her consent to disclosure of the video footage. The appellant also contended that if the prohibition on disclosure were literally applied, it would have the consequence that even a person looking at a video obtained by body-worn police officers would be guilty of an offence. Such a result would be absurd.
It must therefore follow that if release of the information is not prohibited to the individual who is the object of the footage, the footage should be released.
The appellant further submitted that the Tribunal's decision under review was inconsistent with the decision in Wojciechowska v Commissioner of Police [2021] NSWCATAD 173. In that decision an application under the GIPA Act to inspect the respondent's Computer Operational Policing System (COPS) had been initially refused but later was made available. However the appellant claimed that the disclosure was inadequate, she alleged that the search for records of COPS was inadequate. The Tribunal found that the respondent's decision to provide the applicant with a view-only access to the body-worn video footage could not be sustained.

[13]

First issue: statutory interpretation

The issue raised concerns statutory interpretation.The Appeal Panel is invited to depart from the words of the SDA, and to substitute a flexible interpretation of such statute.
In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, the High Court of Australia ,Gibbs CJ said at [6]: It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used"….. If the language of a statutory provision is clear and unambiguous, and is consistent and harmious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its grammatical and ordinary meaning, even if it leads to a result that may seem inconenient or unjust.
Stephen J at [9] referred to the principle stated by Lord Reid in Cramas Properties Ltd v Connaught Fur Trimming Ltd (1965) 1 WLR 892,at 898; (1965) 2 All ER 382 at 385: "Of course we must go by the words of the Act and if they are capable of one meaning then we must take that meaning however irrational that result".
Mason and Wilson JJ commented at [20] on the literal construction rule as referred to above stating: The literal construction rule has been expressed in various ways. In earlier times it was expressed more absolutely than it is today, possibly because the courts, anxious to distinguish legislative and judicial functions, were at pains to emphasise that it is no part of the judicial function under the cloak of construction to amend statutes minute to overcome shortcomings in their operation. One of the strongest statements of the literal rule is to be found in the judgment of Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co-Ltd (1920) 28 CLR 129, at pp 161 - 162: "The fundamental rule of interpretation to which all others are subordinate, is that the statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or inpolitic or improbable".
Having considered the potential shortcomings of the literal interpretation and the golden rule principle of interpretation which seeks to ascertain the intent of Parliament, their Honours referred (at [25]) to the circumstances where such test may produce an absurd or irrational result, and said: But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. 26. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

[14]

Application of principles

The Appeal Panel considers that the text of s 40 of the SDA is plain and unambiguous, as is the provisions of the SD Regulation. As was stated in Voitenko t/as Access Party Hire v Zürich Australian Insurance Limited [2016] NSWSC 324 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. The prohibition under s 40 in other words evidences a legislative intent to limit the impact of surveillance upon the right to privacy."
In these circumstances the Appeal Panel finds no occasion to invoke other principles of statutory interpretation, such as Project Blue Sky Inc v Australian Broadcasting Authority [1998) HCA 28 which apply where there are conflicting provisions in statutory instruments. That is, the words in such provisions are to be read as they appear, as they reflect the intention of Parliament to ensure secrecy of information obtained under the SDA. There is no ambiguity or gaps as considered in Taylor's case.
The appellant does not assert that the conduct of the police officer was not in accordance with s 50A of the SDA. It must follow that in the circumstances, the Tribunal was entitled to conclude that the use of the video footage was conducted in accordance with the SDA and that s 39 and s 40 apply.
In respect of the body worn video footage, the Tribunal member addressed the penalties imposed for breaches s40 (1) and of s 40 (2) of the SDA and referred to the observations in Voitenko and at [99] : "..the fact that a breach of s40 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."
The Appeal Panel does not concur with the submissions of the appellant that the provisions of the prohibition contained in section 40 of the SDA should be read down to allow for exceptions. The intent of Parliament as expressed in section 2A of the SDA are plain, namely to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations; to allow for the covert gathering of evidence for the purposes of criminal prosecutions and to ensure the privacy of individuals is not unnecessarily impinged upon. The secrecy provisions contained in cl 6 of the S14 Table to the GIPA Act specifically recognise that despite the provisions of that act allowing disclosure information, where such would lead to the contravention of the provision of any other act or statutory rule, the public interest consideration is against disclosure.
Nor are there any "gaps" in the GIPA act nor the SDA which would justify the Tribunal interpreting the statutes in the manner described in Taylor, has relied upon by the appellant. Further, the submission that the literal interpretation of the SDA would lead to absurd results cannot be sustained in view of the exceptions contained in such act which permits disclosure for use in a range of law enforcement activities.

[16]

Morgan

In Morgan v Commissioner of Police [2021] NSWCATAD 173 the Tribunal permitted the release of a copy of the body-worn video taken of the applicant conditional upon the identity of any third-party who had not provided consent for the disclosure of their private information to be obliterated. The matter involved body-worn video footage taken of the interaction between officers of the respondent and the applicant. The respondent had determined that there was no overriding public interest against disclosure in the way requested by the the applicant, pursuant to s 72(2)(d) of the GIPA Act. However the respondent had offered the applicant view-only access to the footage.
In Morgan the respondent submitted that the body-worn video was "protected information". The Tribunal balanced the public interest test and took into consideration the fact that the applicant was a member of the Aboriginal race and that Aboriginal people had been the subject of a"sad history" concerning their treatment by police.
Morgan came to a different conclusion to that in Cheung. At [79] the Tribunal in Morgan found: I find that Mr Morgan's personal factors weigh in favour of disclosure (s 55 of the GIPA act). He is a proud aboriginal man who seeks to inform the public about matters concerning his arrest in the broader issues of the policing of indigenous Australians. His motives in my view add significant weight for granting the access application as conceded by the Respondent, disclosure of the information sought by Mr Morgan will inform the public about the operation of the police and their policies and practices in dealing with indigenous Australians.
Accordingly the Tribunal granted access conditional upon the identity of third parties being obliterated in the video footage. The distinguishing factor leading the Tribunal in Morgan to grant access was the fact that Morgan, being a member of the Aboriginal race, had a special interest for himself and for his community in gaining access to the video footage. No such consideration existed in Cheung.

FDY v Commissioner of Police, NSW Police Force

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