Fisher v Commissioner of Police, NSW Police Force

Relevant legislation

1. Section 3 of the GIPA Act sets out its objects: '(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. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.'
2. Section 5 of the GIPA Act provides: "There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
3. Section 13 provides: "There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations against disclosure."
4. Public interest considerations against disclosure are set out in the Table to s14 of the GIPA Act. These are the only considerations (apart from overriding considerations listed in Schedule 1) that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
5. Section 15 sets out principles which apply to determining whether there is an overriding public interest against disclosure. These are: "(a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information."
6. Section 53 provides: "53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources."
7. Section 54 provides: "54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or … Note. The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4. (2A) If the agency considers that information about a person consulted under this section is likely to be included in the agency's disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements: (a) that information concerning the application is likely to be included in the agency's disclosure log and that the person can object to this, (b) that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person's objection. … (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending."
8. In any review of a reviewable decision, s 105 places the burden of justifying the decision on the agency concerned. It provides - "(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review."
9. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law.
10. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It relevantly provides - "(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.'
11. Section 18 of the Privacy and Personal Information Protection Act 1998 provides: "18 Limits on disclosure of personal information (1) 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, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) 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, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
12. Section 63 of the Administrative Decisions Review Act states: "(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

Item 6 - whether the information is outside the scope of the application

1. The respondent says that certain COPS information sought by the applicant is outside the scope of the application because: 1. It was created after the applicant lodged his application for access to information (COPS E133273001); 2. It was not an incident relating to any item within the request as it relates to a report of malicious damage or theft (E65580084); and 3. It did not relate to incidents described in items 6 or 7 of the request (E65739784) as it relates to theft of sheep. This document was originally considered in scope but the respondent submits now that it is not.
2. The applicant became aware of the first two documents through other channels.
3. The respondent submits that the Tribunal does not have jurisdiction to review a decision that the information is not within the scope of the application, in reliance on Miskelly v Roads and Maritime Services [2019] NSWCATAD 133. A decision that information is not included in the scope of the application is not a reviewable decision listed in s 80 of the GIPA Act. It could be argued that the respondent did not actually make a decision in that those documents were out of scope, as it did not refer to them. The respondent submits that the decision was implied, and was made as part of the determination of which documents were within the scope of the application.
4. I am satisfied that this is the case with E133273001 and E65580084. Access to E65739784 was refused on a different ground; however the respondent now submits that it is not within the scope of the application. As no decision was made in this regard, the issue for the Tribunal is to determine the correct and preferable decision with respect to this information. In my view the information does not come within the scope of the information sought by the applicant and therefore falls outside his application.
5. Accordingly it is unnecessary for me to consider whether any public interest consideration against disclosure applies to E65739784.

Item 7 - whether the agency holds the information

1. The applicant says that reports in local and police newsletters regarding activities near the road, including illegal hunting and shooting, and his own knowledge of the area, indicate that there should be other information held particularly about access to Coven Creek Road.
2. He also says that the information searched should not be limited to COPS system records but should extend to police notebooks and other documents. The applicant had suggested that nearby locations such as Lake Bathurst, Tarago, Braidwood Road, Currawang Road and Goulburn be used in searching. He also suggested looking for types of events such as trespass, hunting, vehicular accidents, theft and animal cruelty. Senior Sergeant Reid said that he: 1. searched the COPS system for any entry recording Covan Creek Road Currawong, Collector, Lake Bathurst, Tarago and Goulburn. 2. Contacted the local police at Goulburn and Tarago to find out if they had information at a local level which was not contained in the COPS system and was advised that no local records were held that fell within the application that were not held on COPS.
3. Senior Sergeant Reid's evidence was that the searches he had carried out confirmed that there were no further COPS events or information held on the NSW COPS system relating to the request.
4. Mr Matthew Smith, a Senior Advisory Officer with Infolink - Police Link Command within the respondent, gave evidence at the hearing as Senior Sergeant Reid was not available. His evidence was that he had reviewed the statement of Senior Sergeant Reid and the file regarding the application and had conducted his own searches and was satisfied that the searches conducted by Senior Sergeant Reid were the most likely to capture the information sought by the applicant in respect of item 7.
5. He gave evidence of the limitations on searching in the COPS system. There is no function which allows specific word searches within the narrative of a COPS event. It is not possible to search for words such as "easements", "locks" or "access". It is possible to search for addresses. He contacted police at Tarago and Goulburn twice and asked if they had any information relating to the application which was not on the COPS system. He asked the same question of Senior Constable Handsaker. They told him that no documents were held in addition to those on the COPS system or which were previously provided to the applicant.
6. He said that police notebooks were searched for information relating to events that were identified on COPS first. The did not ask all the officers who had worked in Tarago area to look in their notebooks for any information relating to particular keywords as that would be searching for 'a needle in a haystack'. He also conducted searches on COPS himself and searched the RMS.
7. He was satisfied that all reasonable searches had been carried out in relation to the application using the resources and technology available.
8. Beyond those matters he was concerned that disclosure of the three COPS events could reasonably be expected to reveal the personal information of the informant or complainant and contravene an information protection principle.
9. The respondent submitted that where the Tribunal is reviewing a decision that an agency does not hold information, it should consider: 1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so, 2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of a particular case. (Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18] (concerning the former Freedom of Information Act 1988) and as applied to the GIPA Act in Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5). This submission is correct.
10. As held by the Tribunal in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 at [19]: "All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW)."
11. The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCAT 186 at [33-34]).
12. Newsletters dated August 2009 and April 2016 tendered by the applicant referred to reports of trespassing, hunting and shooting activities in the areas surrounding Coven Creek Road and another dated February 2019 referred to a vehicle which had been involved in an accident which had been seen around Coven Creek Road.
13. The 2009 and 2019 reports are outside the date range of the application. Even if they are taken into account, they do not in my view support a finding that there is more information held regarding access to, from or upon, or locking of the road in question. The request relates to access to or prevention of access to a road, and other criminal activity such as illegal hunting or trespassing do not reasonably lead me to infer that there will be information about that subject matter. The respondent's searches have been thorough, given the inherent limitations of searching the COPS system. In my view there are no apparent reasonable grounds for believing that further relevant information falling within the scope of the application exists which has not been supplied.

COPS Event 63086562 - public interest considerations against disclosure

1. This event is a report made to the police by a member of the public. The responded submitted that if the information was disclosed it could reasonably be expected to: 1. Prejudice the future supply of information from informants, witnesses or complainants (cl 2(a) of s 14) 2. Prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or the enforcement of the law ( cl 2(b) of s 14) 3. Reveal the personal information of the informant or complainant (cl 3(a) of s 14) 4. Contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (cl 3 (b) of s 14).
2. The words "could reasonably be expected" in s 14 mean that there must be a reasonable expectation (not fanciful, imaginary or contrived) that the disclosure could have the prescribed effect. It is an objective test and must be based on real and substantial grounds (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590; Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]). The word "prejudice" in this context should be given its ordinary meaning of "cause detriment or disadvantage" (McLennan v University of New England [2013] NSWADT 113).
3. Detective Sergeant Ferns, who has 14 years' experience as a detective, gave evidence that it was important to keep COPS events confidential so that witnesses and informants knew their identity and information will be protected. He said that witnesses or informants are made to understand that the information they provide will not be revealed unless it proceeds to court and the person is a witness. A relationship of trust and support must be developed for the police to effectively perform their functions. If records of conversations were made public other than in court, he believed that some people may feel that the trust they placed in the Police had been breached and a likely consequence would be that they stopped cooperating and providing information.
4. Senior Sergeant Reid gave evidence that the NSW Police Force was reliant on the information and assistance provided by members of the public and if the supply of information was prejudiced this would affect the detection and prevention of crime. Information provided to police as a report of possible criminal activity was provided on the understanding that it was confidential and would not be disclosed unless necessary for prosecution purposes.
5. "Personal information" is defined in cl 4(1) of Schedule 4 to the GIPA Act to mean " 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."
6. The information contains personal information of individuals in terms of names, phone numbers and addresses as well as facts and opinions about persons.
7. The applicant says that he would consent to the personal information being redacted from the information. I have viewed the information in question. In my view it would not be practical to redact the personal information from the record as the material remaining would be meaningless.
8. [NOT FOR PUBLICATION]
9. The information protection principle which it is said that disclosure would contravene is s 18. As to whether s 18 would be breached by disclosure, the exemptions do not apply because: 1. there is no serious or imminent threat to life or health; 2. the disclosure is not directly related to the purpose for which the information was collected; and 3. the officer is not reasonably likely to have been aware, nor has he been made aware in accordance with section 10, that information of that kind is usually disclosed.
10. Accordingly I am satisfied that disclosure could reasonably be expected to contravene s 18.
11. The respondent referred to the decision of Smart AJ in Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 at [69], a decision concerning the personal affairs exemption under the (now repealed) Freedom of Information Act, where his Honour said: " When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police…On the other hand there is a strong public interest in access to information held by a government agency."
12. This was accepted as applying to the GIPA Act in Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 286.
13. I accept the evidence of the respondent's witnesses concerning the usual circumstances in which information from informants or complainants may result in a COPS event. I am satisfied that disclosure of the information provided by such persons to police could reasonably be expected to prejudice the future supply of information from some informants, witnesses or complainants.
14. In relation to cl 2(b), as stated by Senior Member Montgomery in relation to the similar exemption in cl 4(1)(e) of Schedule 1 to the former Freedom of Information Act 1989 (NSW), this consideration operates: "… to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods". (UC v Commissioner of Police, NSW Police [2005] NSWADT 272).
15. The respondent submits that disclosure would lead to a lack of informants and this would result in prejudice to the prevention, detection or investigation of crime. In my view this consideration would only apply if disclosure of the information could reasonably be expected to disclose some methodology which would have the prohibited effect. The procedures must themselves have some element of secrecy to them: XZ v Commissioner of Police (NSW) [2009] NSWADTAP 2 at [21] and the provision is designed to preserve the integrity of intelligence gathering (McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 66 at [97]).
16. I conclude that the public interest considerations in clauses 2(a), 3(a) and 3(b) are substantiated.

Item 8 - Personal information under cl 3(a) and 3(b) of s 14

1. This item seeks information on the "ranks, plus duration and location of service" of a police officer. The applicant submitted, based on the evidence of Detective Sergeant Ferns, that NSW police are obliged to identify themselves and give their rank and station when performing their duties under the Law Enforcement (Powers and Responsibilities) Act 2002. He commented that the police who have given evidence in these proceedings have provided their rank and experience; and that the officer in question gave some information about his past postings to a local newspaper. Given this, he submitted the officer should not be unwilling to provide the information sought.
2. The officer, when consulted, objected to the information being disclosed because of its personal nature. The respondent relies on two public interest considerations against disclosure: 1. Disclosure could reasonably be expected to reveal an individual's personal information (cl. 3(a) of s 14); and 2. Disclosure could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998, namely s 18 of that Act (cl. 3(b) of s 14).
3. Senior Sergeant Reid and Mr Smith's evidence was that the records of the officer's work history is stored in the SAP system which is a database operated for the purpose of maintaining personnel information and administering NSW Police employees. The respondent submits that the information sought by the applicant as a whole would reveal the officer's career progression or any demotions, and is personal information. It is not limited to his "name and non-personal contact details" which are excluded from the definition of "personal information" in s 4(3) of the GIPA Act.
4. The respondent relies on Webb v Port Stephens Council [2019] NSWCATAD 47 in its submission that revealing personal information or breaching a privacy protection principle are very strong grounds against disclosure.
5. I agree that the officer's career history is personal information within the meaning of the GIPA Act and disclosure of the information could reasonably be expected to reveal his personal information.
6. As to whether s 18 would be breached, I consider this is probable as the exemptions in the section do not apply. This is because: 1. there is no serious or imminent threat to life or health; 2. the disclosure is not directly related to the purpose for which the information was collected; and 3. the officer is not reasonably likely to have been aware, nor has he been made aware in accordance with section 10, that information of that kind is usually disclosed.
7. It is evident that the applicant is aware of the officer's current work location and rank as he has referred to it in his submissions and evidence. The officer's history within the NSW Police is personal information and I am satisfied that disclosure would contravene an information protection principle. Therefore considerations 3(a) and 3(b) are substantiated.

Balancing the public interest considerations for and against disclosure

1. The applicant puts forward the following considerations: 1. The information sought is relevant to the proper policing of public roads and also to his own interests as his property fronts the public road. 2. He has a right to know what accusations have been made against him and what flaws exist in policing procedure that relates to him. 3. It would assist the public to understand policing actions taken by the officer in question and it would promote public confidence in the NSW Police if the career history in item 8 was known.
2. The respondent concedes there is a general public interest in the disclosure of information but submits that information of the identity of persons who had made reports to the Police or police officers' career history would not enhance police accountability.
3. In respect of COPS Event 63086562, I consider that redaction of the information would not address considerations 3(a) and 3(b) in s 14. While there is no evidence as to the third party's view on the potential disclosure, it is clear that a privacy principle would be breached by disclosure. Additionally, disclosure could reasonably be expected to prejudice the future supply of information from informants, witnesses or complainants. Members of the public are a crucial source of information about offences or potential offences and discouraging this source would be against the public interest. On balance I consider that this public interest is more significant than the general public interest in the disclosure of information or a general right to know what police may have been told or how the roads near his property are policed.
4. In respect of Item 8, in my view the general public interest in favour of disclosure and the specific public interest concerning alleged flaws in policing activity in this case carry less weight than the interest in protecting personal information and preventing the breach of a privacy principle.
5. In my view, therefore, the correct and preferable decision is to affirm the decision under review.

Order 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2019