Privacy and Personal Information Protection Act 1998.
Cases Cited: AEZ v Commissioner of Police, New South Wales Police Force [2013] NSWADT 90
AIN v Medical Council of New South Wales [2013] NSWADT 112
Source
Original judgment source is linked above.
Catchwords
Government Information (Public Access) Act 2009Health Records and Information Privacy Act 2002Privacy and Personal Information Protection Act 1998.
Cases Cited: AEZ v Commissioner of Police, New South Wales Police Force [2013] NSWADT 90AIN v Medical Council of New South Wales [2013] NSWADT 112Attorney-General v Cockcroft (1986) 10 FCR 180Australian Broadcasting Corporation v O"Neill (2006) 227 CLR 57Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344Coleman v Power [2004] HCA 39, (2004) 220 CLR 1Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19Cousins v Ambulance Service of New South Wales [2012] NSWCATAD 48Donnellan v Kuringai Council [2013] NSWADT 115Department of Education and Training v Mullett [2002] NSWADTAP 13Glik v Cunliffe 655 F2d 78, 84Hosking v Runting [2004] NZCA 34KT v Sydney Area Health Network [2011] NSWADT 292Hurst v Wagga Wagga City Council [2011] NSWADT 307Levy v Victoria (1997) 189 CLR 579McKinnon v Blacktown City Council [2012] NSWADT 44
Office of Finance and Services v APV [2014] NSWCATAP 88
Richards v Commissioner, Department of Corrective Services (New South Wales) [2011] NSWADT 98
Roberts v Bass (2002) 212 CLR 1
Rogers v R (1994) 181 CLR 251
R v Kane [1965] 1 All ER 705
Warren v New South Wales Trustee and Guardian [2013] NSWADT 178
Judgment (13 paragraphs)
[1]
Reasons for decision
The applicant Fiona Field applied on 24 February 2015 for review by this tribunal of a decision of the respondent to refuse the applicant access to some closed-circuit television (CCTV) footage taken by security cameras at Centro shopping centre, Seven Hills Plaza, Seven Hills, on 1 October 2014. The respondent had offered the applicant access for viewing the material pursuant to s 72(1)(c), but had declined her request for copies of the disks, which she required for the purposes of certain civil proceedings she was planning to institute.
The disks recorded an incident at the shopping mall in which the applicant had assaulted the Hon. Nathan Rees MLA, a former premier of New South Wales and police minister, who had been in an intimate relationship with the applicant between November 2012 and May 2013. Mr Rees had stepped down as opposition police spokesman in 2013 after details of the association were reported in the media. At the time of the assault he was an opposition member of the legislative assembly holding no shadow portfolio. In March 2014 he announced that he would not be seeking re-election at the 2015 state elections.
On 30 December 2014 the applicant made an access application under the Government Information (Public Access) Act 2009 (the GIPA Act) seeking the CCTV footage that had come into police possession pursuant to their investigation of the incident, as well as other information relating to the matter. The respondent's decision dated 27 January 2015 released certain documents in whole or in part, withheld a witness statement and granted access to the CCTV footage for viewing only and declined to supply copies of the disks to the applicant. In refusing access as requested, the respondent relied on s 14, Table cl 1(d), stating that release of the material would prejudice the supply of confidential information facilitating the effective exercise of the agency's functions, and cl 3(a), that it would reveal an individual's personal information.
As a result of the incident, the applicant was fined $600 at Blacktown Local Court on 5 November 2014 for domestic violence-related assault occasioning actual bodily harm. On appeal, Parramatta District Court on 9 December 2014 quashed the fine and instead, without proceeding to conviction, made an order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and required the applicant to enter into an 18 months bond subject to obtaining treatment from a registered psychologist.
[2]
Applicable legislation
The objects of the GIPA Act as set out in s 3(1) are to advance the system of responsible and representative democratic government by authorizing and encouraging the public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes in s 4(1)(c) a "public authority". The New South Wales Police Force is expressly included as a "public authority" under schedule 4, cl 2(1)(c) and is therefore an agency to which the legislation applies.
The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss 11 and 14.
With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s 12. The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.
There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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".
In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
[3]
Respondent's evidence
The respondent called Acting Inspector Andrew James, who explained that the police office of general counsel has no capacity to "pixelate", or blur, CCTV recordings. The police media unit would be able to undertake such a task, which would take approximately 3 hours. It does not normally do so, as such a request is not usual.
Mr Lau on behalf of the respondent then outlined the contents of the police fact sheet dated 12 January 2015 relating to the shopping mall incident (part exhibit R1). It stated that Mr Rees was involved in an intimate relationship with Miss Field between November 2012 and May 2013. Since the relationship ended, the accused (Miss Field) had sent numerous messages to Mr Rees, who had never initiated any contact. Since August 2013 the accused had begun sending abusive text messages to the victim. Those messages were sent sporadically until recently, with the victim not responding to any of them.
On 1 October 2014, the applicant was walking within the Centro Shopping Centre, Seven Hills, in an easterly direction while Mr Rees was walking west. Shortly after both parties passed each other, the applicant approached Mr Rees and pushed him with both hands, causing him to lose his balance. The applicant then continued to walk east. A few seconds later, she turned back and approached Mr Rees and struck him with a closed fist eight or nine times. He attempted to protect himself by ducking down and walking away, but the applicant pulled him back towards her several times.
Mr Rees was able to break free and began walking east, away from the applicant, but she followed him and struck him in the face with her closed fist. She then struck him several more times to the face and the back of the head. He attempted to walk away, but she kept pulling him towards her. This continued for about 10 seconds until several bystanders (including a man in a security guard uniform) became involved and separated the two parties. Once the parties were separated, the applicant walked away west, while Mr Rees attended the centre management office, where police were contacted. After a short interview they asked him to attend at the police station so that a statement could be obtained. Before leaving the shopping centre, police viewed and collected the CCTV footage of the incident. As a result of the incident, police applied for an urgent apprehended violence order (AVO).
[4]
Applicant's evidence
In her oral evidence the applicant adopted her statement (exhibit A1) and drew attention to the main features of it. She said false media reports had been circulating about her since the association became public in 2012. She had been accused of having "sex romps" with Mr Rees by one newspaper columnist, and others had exploited the situation with no regard for the truth and without even speaking to her. This had caused harm to her and her family. There had been no avenues available to her to address Mr Rees's actions. "I contacted government on legal advice but I was ignored and my paperwork returned. I asked another politician for advice and she told me to keep quiet about it".
She had originally approached Mr Rees for assistance with a housing matter in 2012 and also in connection with a police matter in which her son had been violently assaulted but police had not charged his assailant. Mr Rees had taken it upon himself to look up her details after meeting her in September 2012 and began text messaging her, placing her in a difficult situation.
At the time she had been suffering from major depression and anxiety, was on medication and receiving a disability support pension. She said that Mr Rees had accessed confidential information held by his office and used it to call upon her for sexual favours. He followed her around Lalor Park and would stand close behind her in shops, forcing her to leave. He would appear where she went and sent her text messages constantly. He said it was "hot" and he would tell her to keep quiet and to delete his messages, saying he would destroy anyone who went against him. He would say that he was looking for her in Lalor Park and he missed her, but did not regret a thing as they had not killed the Pope. He had told her to take a "lude" and relax, and there was no need to shut up shop. At no time did he end the involvement as he had told police, as he was still calling her to his office in May 2013 and she did not go, as was clear from her text messages (exhibit A3). She was trying to end the liaison on friendly terms because of his position and her difficulties with police. But each time he would call and mollify her.
Her state of mind deteriorated after her involvement with him and because of false media reports. She was not able to obtain the psychological treatment she needed, and when she saw him at the shopping centre on 1 October 2014 she "lost it" and attacked him, after a year of torment and anguish following his treatment of her. Following the incident she was further harassed by media who sat outside her home, harassed her friends and neighbours and continued to report false accounts of the situation, describing her as his "lover" and "mistress". She was unable to obtain the CCTV footage, but in contrast was able to obtain a copy of the CCTV footage in relation to the assault on her son, there being no police concerns about the privacy of others in that recording. The police seemed to be desperately trying to prevent the footage from getting out, which she did not understand as it involved her also and did not show her in a good light, which was why she required it for personal reasons only, to clear her name and to show her mental state at the time as a result of the conduct of Mr Rees.
[5]
Respondent's submissions
In his detailed and thorough written submissions, the respondent argued that giving the applicant a copy of the DVD could reasonably be expected to "reveal an individual's personal information" within the meaning of cl 3(a) of the Table to s 14 of the GIPA Act because it contained images of the applicant, Mr Rees, employees of shops in the Plaza and other persons who were in Seven Hills Plaza at the time of the incident, as well as information as to their actions during the incident. Cl 4(1) of schedule 4 to the Act defines "personal information" broadly, and it includes information from which the person's identity would be apparent or reasonably ascertainable, whether on its own or in conjunction with other sources of information. The media reports made it possible for anyone reading them to ascertain Mr Rees's identity and actions from the images.
For other persons, apart from the applicant, whose faces could be seen in the footage, whether the police had been unable to identify them or not is irrelevant to whether it contains their personal information. Some members of the public would have had access to publicly available information about the identities of those other persons, for example through social media, and consequently the footage contained personal information about them. Further, supplying a copy of the video recording would "reveal" the personal information of those shown within the meaning of schedule 4 cl 1, as those images had not yet been publicly disclosed as part of the media reports or otherwise. Although the incident occurred in a public place, what the relevant persons were doing could not be said to have been publicly disclosed.
Consequently, giving the applicant a copy of the CCTV footage would reveal personal information, specifically, images of Mr Rees, and images and information about the actions of persons other than Mr Rees whose faces can be seen in the recording.
Further, giving the applicant a copy of the footage could reasonably be expected to "contravene an information protection principle under the [PPIP Act] or a Health Privacy Principle under the [HRIP Act]". It would contravene the information protection principle in s 18(1) of the PPIP Act, which provides that a public sector agency that "holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency". As the definition of personal information in s 4(1) of the PPIP Act is identical with that in the GIPA Act, the CCTV recording contains personal information of the persons in the footage whose faces can be seen.
[6]
Consideration
The GIPA Act legislative scheme has been outlined above. In this case it is clear, and it is not disputed, that the CCTV recording is "government information" within the meaning of the legislation as it contains "information" that is held by an "agency", namely the New South Wales Police Force: s 4(1). The information which it contains consists of the images of persons, namely the applicant, Mr Rees and the bystanders visible in the recording, together with information as to their actions during the incident. Nor is it disputed that the victim of the assault shown in the recording is Mr Rees and his assailant is the applicant, Miss Field, and that the incident was widely reported in the media.
The decision under review is not a refusal to supply information as such, but the respondent's refusal to provide access to the information in the way requested by the applicant, on the ground that there is an overriding public interest against disclosure of the information in the manner sought by the applicant: s 72(2)(d). The only matter in dispute is indeed whether there is an overriding public interest against disclosure of the recording in the form of giving her a copy of the footage, as opposed to providing access to enable her to view it.
The respondent bears the onus of satisfying the tribunal that a refusal of access in the form requested is the correct and preferable decision: s 105(2) and Administrative Decisions Review Act 1997 s 63(1).
The tribunal's task in this case is to determine whether there is an overriding public interest against disclosure of the information in the recording in the manner sought in accordance with the Act, having due regard to the principles in s 15: Warren v New South Wales Trustee and Guardian [2013] NSWADT 178, [59]. That requires that the public interest considerations both in favour of, and against, disclosure in that way can be identified, so that the question of whether, on balance, the public interest considerations against disclosure in that manner outweigh those in favour of disclosure can be determined. Unless there is an overriding public interest against disclosure in the manner sought, the presumption in favour of disclosure applies: s 5. As the Appeal Panel declared in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19, [25], it is important that the tribunal proceed in the structured way reflected by ss 12 to 15.
[7]
Public interest considerations favouring disclosure: the s 12 stage
As was noted above, s 12 restates in ss (1) the general presumption in favour of disclosure of government information and in ss (2) lists examples of public interest considerations that favour disclosure, in this case disclosure in the manner sought by the applicant. That list is not exhaustive.
The respondent concedes that s 12(1) applies, as well as s 12(2)(d), that "The information is personal information of the person to whom it is to be disclosed".
As an unrepresented applicant, Miss Field did not structure her case in terms of the formulation in s 12. She relied on her evidence and on her description of certain events which she submits amounted to abuse of power by a minister of state and which she believes should be exposed for the public good and to help restore her good name. Her unchallenged evidence was that the Centro Shopping Centre incident represented a closing stage in two-year saga that began when she approached Mr Rees, then opposition police spokesman, as a constituent seeking to have representations made on her behalf in relation to a public housing matter and in relation to what she believed was the wrongful failure by the police to investigate a violent assault on her son. After meeting her in September 2012, Mr Rees looked up her details and began texting her, which placed her in a difficult situation because of his position. She was also suffering from major depression at that time, was on medication and receiving a disability support pension.
The applicant testified that Mr Rees pursued her constantly and at no stage sought to break off the relationship. She believes he used his position of advantage to call on her for sexual favours, including calling her to his electorate office for that purpose.
She felt let down by government when he remained as their MLA for another year, which made it difficult for her as she had no means of moving away from the area.
That evidence was not challenged or contradicted by the respondent. It plainly raises an issue under s 12(2)(a), namely whether "Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance".
[8]
Public interest considerations against disclosure: the s 14 stage
Apart from the kinds of information described in schedule 1, which are conclusively presumed to be the subject of an overriding public interest against disclosure, the only other public interest considerations that may be taken into account against disclosure, or in this case disclosure in the manner sought by the applicant, are those listed in the Table to s 14. As the Appeal Panel declared in Camilleri, the questions arising under the Table are to be "examined at a broader operational level". "It would not be usual, as we see it," the panel continued, "to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the s 13 stage, it would be proper to have regard to specific aspects of the instant case": at [24] - [26]. The Appeal Panel endorsed the approach to a corresponding provision of the earlier legislation adopted by it in Department of Education and Training v Mullett [2002] NSWADTAP 13, [58], that the tribunal should "engage in a relatively abstract analysis" and "ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to the government in the future": at [29].
The panel also explained that "it was not relevant to the Tribunal's task at the s 14 stage to take account of events subsequent to the circumstances that gave rise to the document or information the subject of the refusal", as "the s 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged": at [37].
The personal factors referred to in s 55 may be taken into account in connection with the considerations for and against providing access, but from the decided cases it is not altogether clear whether they are to come into play at the s 14 stage or at the s 13 weighing stage: Camilleri, [2013] NSWADT 80 at [43]; AIN v Medical Council (New South Wales) [2013] NSWADT 112, [105]. But it would seem to follow from the reasoning in Camilleri that consideration of the personal factors should be deferred to the s 13 stage.
[9]
Clause 3(a)
The first public interest consideration against disclosure on which the respondent relies is cl 3(a) of the Table, that "disclosure of the information could reasonably be expected" to have the effect of "(a) reveal[ing] an individual's personal information". The phrase "personal information" is defined very broadly in schedule 4, cl 4(1) as "information or an opinion (including information or an opinion forming part of a database and 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". A number of examples of personal information are given and certain exceptions provided, none of which is relevant for present purposes.
A person's identity may either be apparent or reasonably ascertainable from the information, in conjunction with other information that may be consulted: Office of Finance and Services v APV [2014] NSWCATAP 88 at [4]. From the extensive media reports of the incident, the identity of Mr Rees and the applicant could be ascertained and a person viewing the footage would be able to ascertain their images and information concerning their actions during the incident. Those images and that information therefore constitute "personal information". It is also possible that some of the bystanders whose faces are visible could be identified, although that is not highly likely as the recording is taken from above and at some distance from the persons involved, so that their faces are not sharply discernible. The fact that the police have been able to identify only those persons shown to be working in the nearby shops supports that view. Nevertheless, it will be assumed for present purposes that one or more of the bystanders could be identified and that the footage therefore contains "personal information" consisting of images and information about their actions during the incident.
The respondent then submits that giving the applicant a copy of the recording would "reveal" the personal information of Mr Rees and the other identifiable persons. To "reveal" information is defined in schedule 4, cl 1 as "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)". While conceding that the personal information regarding the actions of Mr Rees during the incident has already been publicly disclosed in the media reports, the respondent argues that this images captured by the CCTV during the incident have not been publicly disclosed.
[10]
Clause 3(b)
The respondent also relies on cl 3(b) of the Table in s 14, contending that giving the applicant a copy of the CCTV footage could reasonably be expected to "contravene an information protection principle under the [PPIP Act] or a Health Privacy Principle under the [HRIP Act]", both an information protection principle and a health privacy principle being infringed.
Clause 3(b) incorporates the information protection principles in ss 8 to 19 of the PPIP Act, but not the exemptions in Division 3 of Part 2, such as the exemption in s 27: Flack at [44] - [45]. Therefore, although s 27 exempts the police from complying with the information protection principles except "in connection with the exercise of their administrative and educative functions", that is not relevant to whether cl 3(b) applies. Even if it were relevant, the determination of a GIPA Act application qualifies as an "administrative function" to which the information protection principles would apply.
The information protection principle applying in this case is s 18(1), which provides that "A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency…." The section contains a number of exceptions, the only relevant one being s 18(1)(b), that "the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body…."
The respondent submitted that there is no basis for concluding that CCTV footage is usually disclosed to a person for the purpose of being given to the media or for use in civil proceedings. In my view, however, the exception is even narrower than that. It refers to awareness that the information is "usually disclosed to that other person or body" (my emphasis), in this case the applicant, not to a class of person in the position of the applicant, such as persons who might be contemplating civil proceedings. Although persons entering the shopping centre would probably be aware of the prominent sign at the entrance stating that the premises are under twenty-four-hour video surveillance (exhibit A6), they would not be likely to be aware (and of course it was not the case) that the resulting recordings were "usually disclosed" to Miss Field.
[11]
Clause 3(f)
The third consideration against disclosure on which the respondent relies is cl 3(f), that disclosure "could reasonably be expected to…(f) expose a person to a risk of harm or of serious harassment or serious intimidation". In AEZ v Commissioner of Police, New South Wales Police Force [2013] NSWADT 90, [86] - [89] the tribunal understood that phrase to mean that the person harassed would be offended, humiliated or intimidated by the conduct in the circumstances. The usual meaning of "harass", the tribunal said, is to "trouble by repeated attacks, harry; to worry or unnerve (an enemy) by continuous small attacks; to disturb, worry, torment, distress with annoying labour, care or misfortune". 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. Clause 3(f) also mentions "serious intimidation", which the tribunal considered to be clearly related to the concept of harassment, but as also causing the person to fear for his or her safety. As the intimidation or harassment is required to be "serious", the decisionmaker must 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": at [94].
Assessment of that consideration in the present case must start from the obvious fact that the applicant assaulted Mr Rees, causing actual bodily harm, and on being found guilty was placed on a bond and made subject to an AVO. That could give rise to reasonable concerns for his safety. The respondent submitted that Mr Rees could be seriously harassed by the media, as there had already been extensive media interest in the incident. That is perhaps less likely now that Mr Rees has departed the political stage, but it is equally possible that now that he is much less of a public figure, he and his family would feel the effects of any intrusive media interest more keenly. The applicant says she has no intention of taking her story to the media, as she does not trust them and wants nothing to do with them. That may be so, but she could change her mind. Similarly, she admits having sent numbers of text messages to Mr Rees after August 2013, but says she ceased doing so after the mall incident; but again, she could change her mind about that as well. The Act directs that "it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information: s 15(e). In my view cl 3(f) may properly be treated as a consideration against disclosure.
[12]
Weight of the considerations for and against disclosure: the ss 13 and 15 stage
The general public interest in favour of the disclosure of government information (s 12(1)) must always be a key consideration, in view of the overall thrust of the legislation. Similarly, the considerations in s 12(2)(a) must also be viewed as substantial, as they are directly related to the Act's primary objective of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective…." (s 3(1)). This stage of the process also involves applying ss 13 and 15, as the process of weighing necessarily implies the prior ascription of weightings, which in turn invokes the direction in s 15(a) to promote the object of the Act.
In addition to s 12, disclosure would be an exemplification of the constitutionally protected freedom of political communication as discussed above, as well as the principle of openness as regards observing and reporting significant events that occur in public places.
Freedom of political communication is not merely an aid to the open discussion of public affairs or the uncovering of misconduct; it is a key feature of liberal democratic society. Entick v Carrington (1765) 19 St Tr 1029, which has been described as the central case in English constitutional law, and Wilkes v Wood (1763) 19 St Tr 1153, one of the other key cases in the development of parliamentary government and the rule of law, both concerned freedom of political communication, though in each case the narrow issue on the pleadings was trespass to land and goods. This consideration thus merits substantial weight.
Also important in this case is the consideration in s 12(2)(d), that the information is "personal information of the person to whom it is to be disclosed". The nature of the personal information is relevant to the weight placed on it in the balancing test. In McKinnon v Blacktown City Council [2012] NSWADT 44, [95], the tribunal placed considerable weight on the fact that the personal information in question related to the individuals' private and family affairs. The CCTV footage in this case depicts an incident that has proved very important in the applicant's life and has had far-reaching repercussions for her. Of course, she was the wrongdoer in that incident, but she believes she has been the victim of an injustice, not only as regards Mr Rees's treatment of her, but also in the media storm that followed it, which she says was one-sided, as she was never asked to comment on any of the reports. She also believes it will help to establish a civil cause of action. That consideration calls for substantial weight.
[13]
Determining where the public interest balance lies: the ss 13, 15 and 55 stage
Determining where the balance lies between competing interests is "a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70]. The Act provides no set formula for calculating the weight of considerations or for determining whether one set of considerations outweighs the other. Any reasonable approach that follows s 15 principles seems to be acceptable. For while s 13 is expressed in terms of outweighing, any concept of weighing in this context can only be a metaphor, one that gives the process a greater aura of scientific measurement than it actually possesses. It is really a matter of placing identified considerations in order of priority or importance.
At the weighing stage the tribunal is entitled by reason of s 55 to take into account the personal factors of the application, namely
1. the applicant's identity and relationship with any other person,
2. the applicant's motives for making the access application,
3. any other factors particular to the applicant.
Under s 55(6), the tribunal is under no obligation to inquire into, or verify claims made by an applicant or any other person about the personal factors, but is entitled to have regard to evidence or information provided by them.
The respondent argues that the evidence discloses two motives of the applicant for obtaining the CCTV footage. "[M]otive must… be established on reliable evidence and not by mere assertion": Donnellan, [60]. The applicant's first motive, the respondent contended, was her expressed intention to commence civil proceedings. He pointed out that she could not mount a collateral attack in civil proceedings on an earlier decision in a criminal trial: Rogers v R (1994) 181 CLR 251, 274. She claimed that the CCTV recording would help to establish her state of mind at the time of the incident, but her state of mind would not be relevant to a civil claim, such as a claim for "psychological injury" under the Civil Liability Act 2002.
It is no part of this tribunal's function to determine whether an applicant has or has not a possible cause of action against any other person or organization, or to estimate the chances of such an action being successful. The motive therefore cannot, contrarily to the respondent's submission, be regarded as otiose.
Parties
Applicant/Plaintiff:
Field
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the GIPA Act. The respondent relied initially on two items in the Table: that disclosure could reasonably be expected to have the effect of "reveal[ing] an individual's personal information" (cl 3(a)), and "contravene[ing] an information protection principle under the Privacy and Personal Information Protection Act 1998 [PPIPA Act] or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 [HRIPA Act] (cl 3(b)). In oral submissions the respondent broadened his case to include reliance on cl 3(f), "expos[ing] a person to a risk of harm or of serious harassment or serious intimidation".
In response to Miss (her preferred title) Field's application, the respondent decided to give her access to facilities to view the CCTV footage under s 72(1)(c) of the GIPA Act. It decided on that form of access on the ground that under s 72(2)(d), there was an overriding public interest against disclosure of the recording by giving a copy to Miss Field. That was a "reviewable decision" under s 80(i) because it is "a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)". The main matter in dispute is whether there is an overriding public interest against disclosure of the CCTV recording to the applicant by giving her a copy of the recording, as opposed to disclosure by providing access to her to facilities by which she could view the footage.
The issue in the present application is thus whether the correct and preferable decision is that there is an overriding public interest against disclosure of the CCTV recording by giving the applicant a copy of it by reason of the considerations in cll 3(a),(b) and (f).
Police arrested Miss Field on 2 October 2014 and took her to Blacktown Police Station, where she declined to participate in a recorded interview. The conditions of the AVO were then explained to her. She was charged on that day with assault occasioning actual bodily harm (domestic violence) and on 5 November 2014, having pleaded guilty, she was fined $600 and placed on a bond. The sentence was reduced on appeal to a s 10 discharge and an 18 months' bond conditionally on obtaining treatment from a registered psychologist.
The respondent tendered an affidavit dated 11 May 2015 by Senior Sergeant Nargis Fam, coordinator of the police Access and Subpoena Unit. The respondent applied for, and was granted, an order under s 107 of the Civil and Administrative Tribunal Act 2013 for the non-disclosure of the confidential version of that affidavit. The open version is exhibit R3. Part of Mr Lau's submissions was made in closed session.
S/Sgt Fam deposed that there were a number of media reports describing the assault by Miss Field on Mr Rees and attached copies of those reports. He also attached correspondence from the applicant and a number of other documents. He stated that he had consulted with four persons or organizations shown in the CCTV recording who he considered would need to be consulted if, under s 54 of the GIPA Act, access to the CCTV footage was given to the applicant. Two of those persons or organizations objected to its release to her. The deponent was not required for cross-examination.
[Not for publication]
[Not for publication
[Not for publication]
Mr Rees had degraded her and humiliated her sexually. It was not a love affair gone wrong as had been portrayed in the media and by police. "Nathan Rees is a bully who took advantage of my confidential information about my mental state and prior abuse. I was not well enough to stand up to him at the time. He would put his hands up my skirt and down my top despite my protests" (then followed a description of some degrading sexual acts). The statement then detailed what she believed were false and misleading media reports, including one in the London Daily Mail, to which she was never given the opportunity to respond. It was never mentioned that Mr Rees had sent her thousands of text messages.
She was considering legal action against Mr Rees regardless of what was contained in the footage, on the basis that he had abused his position and misused her confidential information. The CCTV recording would help to show her distressed state of mind at the time and would, she believed, show that the incident was a chance meeting and not as the media had reported it. She had recently seen in the news CCTV footage of a woman and her daughter attacking a bus driver, a one-punch attack, Irish brothers fighting and one brother being knocked down by a "king hit", a man entering a store and attacking people with an axe, and of man being chased before apparently being murdered, as well as a brawl at a 4-year-olds' party. There were no concerns for the privacy of others in any of that footage.
Her conviction had been overturned on appeal to the District Court on 9 November 2014, when Judge Armitage had said she was a person of good character, but the media had never reported that fact. She was not innocent of any wrongdoing but only sought a chance to set the record straight.
In cross-examination the applicant said she thought the police had embellished the story and withheld relevant information. There had been no mention of her mental health condition, although she had told the police about it. She did not recall the details of the assault as they had been given but she had not watched the footage. She had been overwhelmed by publicity and media coverage. She had been told that the police had "orders from on high", although Mr Rees was no longer police minister at the time but was an opposition back-bencher.
The exceptions to the principle in s 18(1) contained in paras (a) and (c) are clearly not relevant. The exception in s 18(1)(b) is that "the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body". There is no basis for concluding that information in CCTV footage is usually disclosed to a person for the purpose of being given to the media or for use in civil proceedings. It is therefore impossible to conclude that Mr Rees and all the other persons whose faces are shown, other than the applicant, were reasonably likely to be aware, or were made aware, that their personal information is "usually disclosed" to persons in the position of the applicant.
The CCTV footage also contains "health information" of Mr Rees under the HRIP Act, as that is defined in s 6(a)(i) to include "personal information that is information or an opinion about...the physical or mental health or a disability (at any time) of an individual". That definition is broad enough to extend to information contained in photographs that "document the extent of [a person's] physical health and the injuries he had suffered": KT v Sydney Local Health Network [2011] NSWADT 292, [64]. Therefore, although the media reports give some detail of Mr Rees's medical condition after the assault, the CCTV recording contains health information going beyond that, namely documentation of the precise manner in which, and the places on his body, on which he was assaulted.
Schedule 1 of the HRIP Act sets out the health privacy principles, the relevant one being cl 11(1), which provides that an organization that "holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected". Mr Rees's health information was collected for the purposes of a criminal investigation. Disclosing it to the applicant in any form would be for a secondary purpose, namely, to fulfil possible obligations under the GIPA Act.
As regards the public interest considerations in favour of disclosure, there is a general public interest in favour of disclosure of government information: s 12(1), but the interest in favour of disclosure must be constrained by s 13, read in light of the purposes of the GIPA Act: s 3(2)(a). Those purposes include an overarching objective of "maintain[ing] and advance[ing] a system of responsible and representative democratic government that is open, accountable, fair and effective": s 3(1).
Of the non-exhaustive list of public interest considerations in s 12(2), the only one that is relevant is (d), "[t]he information is personal information of the person to whom it is to be disclosed". The respondent accepts that the footage contains the applicant's personal information.
As regards the balancing exercise, the considerations in favour of disclosure are not strong. On the general public interest in favour of disclosure, the only consideration supporting disclosure in the form the applicant requested is that it contains personal information of her. But in considering the weight that should be given to that consideration, it is permissible to take into account the applicant's motives for making the application: s 55(1)(b). The applicant has stated that she requires the information in relation to civil proceedings, but it is unlikely that the footage would be relevant for that purpose. In a civil action the applicant cannot challenge the underlying facts that led to her conviction.
On the other hand, considerable weight can be given to the considerations against disclosure in cll 3(a) and (b), because her other motive for seeking the information is to disclose it to the media. That is clear from her assertion that she wishes to clear her name after false media reports. Again, she states that she is "seeking to have the facts surrounding this matter come out". If the respondent were to give the applicant a copy of the footage, it would not be entitled to impose conditions on her use or disclosure of that information: s 73(1). That inability to impose conditions is relevant to determining an access application: s 15(e). Given the publicity already given to the incident, if the footage were disclosed to media outlets, they could be expected to disclose it to the wider public. That is especially significant in light of the fact that a number of persons whose personal information is contained in the recording could not be contacted. Consequently, while the tribunal could properly take into account the lack of objections from persons or organizations who could be contacted, that could not be decisive. It is also relevant that the personal and health information of Mr Rees in the CCTV recording is highly sensitive.
In written submissions in reply the respondent added that the considerations in favour of disclosure contained in s 12(2)(a) and (e) are not applicable. The footage could not plausibly promote open discussion of public affairs or reveal misconduct by an agency. The applicant has provided no evidence in support of her claim that she was unfairly treated by police, and fails even to particularize it. Her motive of disclosing the recording to the Ombudsman would be futile, as a complaint cannot be made under the Ombudsman Act 1974 in relation to the conduct of a minister. And while she denies any intention of giving the footage to the media, no conditions could be imposed on disclosure. In any event, it is open to the tribunal to conclude that the applicant does have the motive of disclosing the recording to the media, as she states that she is seeking to have the facts set surrounding the matter come out and wishes to clear her name following untrue reports about her in the media. Further, even if the applicant were to use the recording only for the purpose of civil proceedings, any such proceedings would lead to renewed media interest in the incident. That increases the weight that should be given to the considerations against disclosure in cll 3(a) and (b) of the Table to s 14.
The applicant's reference to the possibility of pixelating the faces of persons shown in the recording, which would be permitted under s 74, would still leave Mr Rees's personal and health information in the CCTV footage, even if his face were pixelated. That is because a person viewing the footage who had read the media reports would still be able to ascertain Mr Rees's identity. Further, in view of the sensitivity of the personal and health information, the likelihood that the media would eventually receive a copy of the footage, and the weak considerations in favour of disclosure, the fact that the CCTV footage would still contain Mr Rees's personal and health information would be enough by itself to create an overriding public interest against disclosure.
In oral submissions Mr Lau pointed out that s 72(2)(d) requires the same kind of balancing process as refusal of access, except that the public interest considerations for and against must relate to disclosure in the form requested by the applicant: Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48, [62]. Then the normal four-stage evaluation and balancing process is followed: Williams v Department of Industry and Investment [2012] NSWADT 192, [22].
Pixelating the images would not be an option because Mr Rees's identity could still be ascertained and consequently his personal information would still be accessible in the CCTV footage. The task would be of marginal utility and would also effect an unreasonable interference with police operations as the office of general counsel was not equipped for it, while the media unit seldom did so and the process would occupy its staff for three hours simply to pixelate six minutes of recording. The fact that the recording was made in a public place was not relevant in the case of digital information. Other persons who were in the mall at the time would have been aware of the scene, but the images had still not been publicly disclosed.
The applicant's motives for making the access application are relevant under s 55(1)(b) to determining whether there is an overriding public interest against disclosure. Motive must be established on reliable evidence and not by mere assertion: Donnellan v Kuringai Council [2013] NSWADT 115, [60]. The applicant's motives in this case are to bring civil proceedings (which is admitted), to give the recording to the media and to disclose it on social media.
As regards cl 3(b) of the Table, the respondent relied on s 18(1) of the PIPPA Act. The exception in s 18(1)(c) could not apply, nor could (a), as the purpose of collecting the information was law enforcement, and GIPA Act disclosure was not directly related to that purpose. In relation to s 18(1)(b), while Mr Rees and the other persons present might have been aware that the area was under video surveillance, that was far from an awareness that the information recorded could be used for GIPA purposes, because personal information is protected by cl 3(a).
The only relevant exception under the HRIPA Act was cl 11(1)(b) of schedule 1, but here again the primary purpose was law enforcement and disclosure under the GIPA act would be a secondary purpose that was not directly related to the primary purpose.
There was a real risk of serious harassment under cl 3(f) of the Table. In AEZ v Commissioner of Police, New South Wales Police Force [2013] NSWADT 90, [88] - [89] the tribunal defined it to include conduct that causes a person to feel worried, tormented, distressed or harassed. Mr Rees could be seriously harassed by the media. There had already been extensive media interest in the matter and the applicant intended to give the recording to the media and social media. Under s 15(e) of the GIPA Act, it was relevant to consider that disclosure could not be made subject to any condition on the use or disclosure of information. The coverage of any legal proceedings that the applicant instituted would also draw media attention to Mr Rees.
The only public interest considerations favouring disclosure were the general public interest in s 12(1) and the fact that the information is personal information of the applicant: s 12(2)(d). They merit little weight because of the applicant's motive, including her intention to commence legal proceedings. For that purpose the footage would either be irrelevant, or its use would constitute an abuse of process within the principle in Rogers v R (1994) 181 CLR 251. Despite receiving a s 10 discharge, the applicant was still deemed guilty and could therefore not re-ventilate the substratum of the assault. On the other hand, the considerations against disclosure were strong. The recording contained sensitive information because it showed an assault on Mr Rees, as well as containing information about what the other persons present were doing at the time. The media publicity exacerbated those factors, as would the applicant's motives.
[Not for publication]
A number of tribunal cases, including Williams v Department of Industry and Investment [2012] NSWADT 192, [21] - [22], have elaborated the steps that must be followed in applying those provisions. In the context of the present case they are as follows:
1. identifying the relevant public interest considerations favouring disclosure in the manner sought; this is the s 12 stage;
2. identifying the relevant public interest considerations against disclosure in the manner sought; this is the s 14 stage;
3. attributing weight to each consideration for and against disclosure in the manner sought; this is the ss 13 and 15 stage; and
4. determining whether the balance of the public interest lies in favour of or against disclosure of the government information in the way sought by the applicant; this stage also involves ss 13 and 15.
The CCTV recording depicts only an assault and battery in a shopping mall; it does not show any governmental or parliamentary activities or use of government property, and Mr Rees was no longer a minister at that time, but an opposition back-bencher. The video does not show Mr Rees engaging in any form of misconduct, and indeed he is shown in a favourable light, in that he took some pains to avoid further inflaming an already difficult situation. Apart from seeking to evade the blows and pull away from Miss Field, he made no attempt to defend himself, although legally he was entitled to; Miss Field appears to be as tall as him and, having worked in security roles, was able to give a fair account of herself, at least against an opponent who did not defend himself.
The applicant's unchallenged evidence, however, is that the incident was a chapter in a long-running series of episodes that did involve parliament and government functions. The words "could reasonably be expected" in s 12, as in s 14, should be given their ordinary meaning, such that a "reasonable" expectation is "distinct from something that is irrational, absurd or ridiculous": Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190. The word "reveal", as in s 12(2)(e), is defined in schedule 4, cl 1, as meaning "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)". The applicant's evidence concerning the background and significance the incident, including her mental state at the time (for which there is documentary corroboration in exhibit A2), does not appear to have been publicly disclosed.
It is not "irrational, absurd or ridiculous" to posit that an intimate association between a shadow minister and a constituent such as that described in the applicant's evidence could be appropriate subject matter for discussion in the context of public affairs, government accountability or issues of public importance. Apart from several aspects of the functioning of parliament, it could have a broader significance as well. Plutarch tells us in the Lives that the Romans considered a man's private life a better guide to his character in office than his public persona, which was often a factitious construct. There have been many instances in more recent times of such associations having wider public policy implications.
[Not for publication]
[Not for publication]
The point is simply that the private activities of senior members of the Legislature can have public policy implications and are thus not entirely private. They may therefore be a proper subject for public debate over matters of government. Under s 12 there is consequently a public interest in the disclosure of information relating to them. The CCTV images, the applicant submits, show the disturbed state of mind to which she had succumbed as a result of the former minister's conduct when he was still a member of the legislative assembly and opposition spokesman on police matters. Given her unchallenged evidence about the nature of the association and her mental condition, it is not irrational, absurd or ridiculous to suppose that release of the CCTV recording could help to advance the interests in s 12(2)(a).
Those interests also have a wider import. They represent an application and illustration of the constitutionally protected liberty of political communication. That doctrine applies to State as well as federal legislation: Roberts v Bass (2002) 212 CLR 1; Coleman v Power [2004] HCA 39, (2004) 220 CLR 1; Levy v Victoria (1997) 189 CLR 579. Its effect is that legislation should be interpreted so as not to infringe the constitutional liberty, which is a distinguishing feature of liberal democracy. That consideration may be an aspect of s 12(2)(a) or, as the list of public interest considerations favouring disclosure in s 12(2) is not exhaustive, it may constitute a separate consideration in itself.
The tribunal has held that information that had been disclosed in open court had been "publicly disclosed" for the purposes of the definition and could therefore not be subsequently revealed. The issue was not whether a particular document had been publicly disclosed, but whether the information it contained had: Richards v Commissioner, Department of Corrective Services (New South Wales) [2011] NSWADT 98, [37). In the present case details of the incident had been publicly disclosed in open hearings in the Local Court and District Court. The prosecution had tendered the police fact sheet (part exhibit R1), which (contrarily to the applicant's perhaps disturbed recollection) accurately describes the incident as captured in the CCTV recording. The media description of the event closely followed the particulars in the police fact sheet.
Although the CCTV images themselves do not appear to have been tendered in court, it is significant that they were recorded in a public place. A public place has been defined as "a place to which the public can and do have access… whether they come at the invitation of the occupier or merely with his permission, or whether some payment or the performance of some formality is required before access can be had": R v Kane [1965] 1 All ER 705. The Crimes Act 1900 uses a similar definition, which includes a vessel, vehicle, room or ordinarily private place if it was "at the time used for a public purpose, or as a place of common resort, or was open to the public on payment of money or otherwise": s 8. A shopping centre of its very nature is a place that has been designed and built for the purpose of being open to the public and attracting persons to the retail establishments within it.
The officially published police media policy points out that members of the public have a right to photograph or video-record things and events observable from a public space, including police operations. The police have no right to delete or confiscate footage or to prevent the media from making video recordings at crime scenes, provided that they remain out of the delineated crime scene area and obey all other laws: New South Wales Police Force, Media Policy (2013), paras 9.2.1, 9.2.2, 9.4. While the police media policy does not directly affect the application of the GIPA Act, it does constitute official recognition of the principle that an event in a public place is an event in the public domain. In the United States, that principle, specifically in the context of videorecording police arrests in a public place, is treated as an aspect of the constitutional right of free speech: Glik v Cunliffe 655 F 2d 78, 84 (1st Cir 2011).
In Hosking v Runting [2004] NZCA 34, the New Zealand Court of Appeal declined to prevent publication of photographs of the wife of a well-known television personality and their twin daughters, then aged 14 months, while they were out shopping. Their Honours pointed out that the photographs showed nothing more than might have been observed by any member of the public present at the time they were taken, and consequently did not disclose any information.
Although Hosking was a common law privacy case, not a government information case, it embodies the concept that, in general, actions and incidents that occur in a public place may be taken to have been publicly disclosed, regardless of the number of persons who actually witnessed the event at the time. If anything, the fact that Hosking concerned privacy makes its reasoning apply a fortiori in a GIPA Act context. It would follow that disclosure of the CCTV recording would not "reveal" any personal information. I therefore find that cl 3(a) does not apply. That interpretation also gives effect to the statutory direction in s 3(2) that "It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act…"
It is significant that neither cl 3(b) nor s 18(1) of the PPIP Act uses the concept of "reveal[ing]" information. Whether the information has previously been publicly disclosed or, for example, was created by acts in a public place, which is relevant under cl 3(a), does not arise here, as cl 3(b) refers only to disclosures that "contravene" a relevant privacy principle. Consequently, I find that the privacy principle in s 18(1) would be contravened.
As regards health privacy principles, the respondent contends that the footage also contains "health information" of Mr Rees under the HRIP Act. The definition of "health information" in s 6(a)(i) of that Act includes "personal information that is information or an opinion about… the physical or mental health or a disability (at any time) of an individual". That definition is broad enough to include photographs (KT v Sydney Local Health Network [2011] NSWADT 292, [64]) and presumably video recordings. The respondent submitted that, while the media reports gave some detail of Mr Rees's medical condition after the assault, "the CCTV footage contains health information going beyond this, namely, documentation of the precise manner in which and the places on his body on which he was assaulted".
In my view that interpretation strains the meaning of "health information" too far. The footage depicts an assault in a shopping mall. It does not show the scratch to Mr Rees's ear, or whether he sustained any injuries at all. After the assault he is shown speaking normally to a nearby shop assistant before walking out of the picture with a normal gait, without holding his ear or head, and carrying his shopping bags. On the respondent's own evidence (exhibit R3 attachments), it is clear that Mr Rees required no medical attention. There is no basis for applying the HRIP Act to the facts of this case and I so find.
As against that, disclosure in the manner requested could contravene an information protection principle under the PPIP Act, namely s 18. Those principles are in certain respects contrary to the policy of the GIPA Act and they reflect a serious concern on the part of the Legislature to protect the individual's private domain. In this case, however, that consideration carries somewhat reduced weight as the incident portrayed in the CCTV footage occurred in a public place and was observed by members of the public at the time, as well as being the subject of extensive media publicity.
As regards cl 3(f), the starting point must be that the applicant assaulted Mr Rees and as a result was placed on a bond and made the subject of an AVO, a serious matter that could reasonably give rise to apprehensions in relation to his safety and well-being. In addition, there is confidential evidence in relation to this consideration. On the other hand, the possibility of one civil suit could not in itself constitute serious harassment, should it eventuate.
[Not for publication]
[Not for publication]
[Not for publication]
Her other motive, the respondent submitted, was to give the recording to the media and disclose it on social media. That weighed strongly against disclosure in the form requested, as the information in the recording was sensitive, showing the assault and containing information about others, namely the bystanders. The media publicity would exacerbate those negative consequences. The applicant denies any intention of dealing with the media, saying she wants nothing to do with them, and she closed her social media account after removing the picture of Mr Rees's ear injury, which she posted only in order to contrast it with the severe injuries her son suffered in a violent attack that was never the subject of prosecution. She could, of course, change her mind, and her motive of seeking to clear her name would appear to imply some element of publicity. That may, however, be inseparable from her having her day in court, should she eventually do so.
Withholding a copy of the CCTV footage in order to forestall or inhibit media coverage and debate would also cut across the common law's long-standing aversion to prior restraint on publication. Blackstone wrote in 1769 that "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints on publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity": Vol 4 Bl Com 151, 152.
The law's antipathy to prior restraint on publication underlies the courts' great reluctance to grant interim injunctions in defamation cases: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 71 - 73, Gleeson CJ, Crennan J. No interim injunction will therefore be issued to restrain discussion in the press of matters of public interest or concern: Church of Scientology of California, Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344, 349 - 350. That withholding the CCTV footage in order to prevent media discussion would partake of the nature of a prior restraint is therefore a consideration in favour of disclosure, not against it.
The s 55 personal factors also include the applicant's identity and relationship with any other person, and any other factors particular to her. In this case her relationship with Mr Rees would appear to be a reason in favour of providing her with access, as it was the background to her offence, her mental state (see exhibit A2) and her possible endeavours at vindicating her position. Overall the personal factors against and for access appear to cancel one another out and do not greatly advance the weighing process.
Police were able to contact only two of the bystanders shown in the recording, and neither objected to disclosure of the footage in the form requested. Two other parties objected, but neither was a bystander. That somewhat reduces the significance of the privacy principle contravention under s 3(b).
Harassment and intimidation under cl 3(f) potentially weigh heavily in the scales. It is significant, however, that the police records before the tribunal contain no reports of breaches of the good behaviour bond or the AVO conditions. There is little cogent evidence to the contrary. The applicant no longer texts the applicant and says she has no desire to have any contact with him. She has removed the photograph of Mr Rees's injury from social media and she closed her account after she discovered that the media had hacked it. The evidence gives little cause for believing that there is a serious risk of harm, serious harassment or serious intimidation, and I so find.
In light of all the evidence, and bearing in mind the injunctions in ss 3(2) and 15(a), I conclude that the public interest considerations favouring giving the applicant access in the manner requested, by supplying her with a copy of the CCTV recording, outweigh the considerations against providing access in that manner.
The decision under review is set aside.
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: 21 July 2015