FLF v Children's Guardian - [2022] NSWCATAD 380 - NSWCATAD 2022 case summary — Zoe

NSWNSWCATAD

FLF v Children's Guardian

[2022] NSWCATAD 380

NCAT Administrative and Equal Opportunity|2022-06-08

View original source

At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2022-06-08

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

Publication restriction: (1) The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. (2) The applicant is to be known by the pseudonym "FLF". (3) The disclosure of the documents contained in the agency's confidential bundle filed 26 April 2022 is prohibited pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013

[2]

Introduction

This is an application by FLF (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review of an internal review decision made by the delegate of the Children's Guardian (the agency) on 30 August 2021 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act, the Act) in relation to his access application dated 26 May 2021. By that decision the agency refused to provide the applicant with access to certain information on the basis that there is an overriding public interest against its disclosure. The information in issue are reports made to the NSW Police Force (Police) and the NSW Department of Communities and Justice (DCJ) of an allegation of child sexual assault, and in the case of DJC, related documents. This application was made on 24 February 2022 (the application).
For reasons set out following, the Tribunal has concluded that the correct and preferrable decision in the circumstances is to refuse the applicant access to the information sought. The applicant's access to the DCJ material must be refused because, pursuant to s 14(1) and clause 10 of Schedule 1 of the Act, there is a conclusive presumption that there is an overriding public interest against its disclosure. It is information to which s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (CYP(CP) Act) applies. His access to the Police material must be refused because pursuant to s 14(2) and clauses 1(d) and 1(f) of the Table to s 14 of the Act there is an overriding public interest against disclosure of this information which outweighs the statutory considerations in favour of its disclosure, and the personal aspects of the application. The Tribunal has therefore affirmed the reviewable decision.

[8]

Background

The agency is a person holding the public office of Children's Guardian appointed by the Governor pursuant to s 115 of the Children's Guardian Act 2019 (NSW) (CG Act). The principal functions of the Children's Guardian are set out in s 128 of that Act. These functions relevantly include "to exercise functions relating to persons engaged in child-related work, including working with children check clearances, under the Child Protection (Working with Children) Act 2012 (NSW) (CP(WWC) Act). Section 127 of the CG Act provides that persons may be employed in the Public Service to enable the Children's Guardian to exercise the Children's Guardian's functions. These are staff of the 'Office of the Children's Guardian' (OCG).
Part 2 of the CP(WWC) Act imposes restrictions in relation to persons who may be employed in "child-related" work as that term is defined in ss 6 and 7 of that Act. Part 3 of that Act sets out the framework for obtaining a WWC Clearance including the classes of clearance (Division 1), the application process (Division 2), risk assessment of applicants and holders (Division 3), determination of applications for clearances (Division 4), duration and termination of clearances (Division 5) and the establishment of the Working with Children Register (Division 6).
In July 2016, the Royal Commission into Institutional Responses to Child Sexual Abuse conducted an inquiry into responses of disability service providers to allegations of child sexual assault. This inquiry was known by the name "Case Study 41". The applicant was referred to in the case study materials published by the Royal Commission as a person involved in the sexual assault of a young person with Autism in 2012. Case Study 41 attracted media attention which reported the applicant's name in connection with the alleged sexual assault.
On 21 January 2019, the applicant applied to the agency for a WWC Clearance.
The agency held records of news articles reporting Case Study 41 which included the allegations made against the applicant and the way in which those allegations had been dealt with. Prompted by this information, in preparation for its risk assessment in relation to the applicant's application for a WWC Clearance, the agency exercised the power contained in s 31 of the CP(WWC) Act to obtain information from other agencies about the matter. This included Police and DCJ.
In this respect, s 31 of the CG Act relevantly provides: 31 Powers of Children's Guardian to require production of information (1) The Children's Guardian may, by notice in writing (an assessment notice), require any person to provide the Children's Guardian with a statement or information relevant to an assessment of whether a person poses a risk to the safety of children. (2) A requirement may be made for the purposes of - … (b) determining an application for a working with children check clearance or an assessment of an applicant or the holder of a clearance, or … (3) A person to whom an assessment notice is given is authorised and required to comply with the notice. (4) An assessment notice may specify a day on or before which the notice is to be complied with. (5) If a person fails to comply with an assessment notice, the Children's Guardian may, by further notice in writing served on the person (an enforcement notice), direct the person to comply with the assessment notice within a reasonable period specified in the notice (of not less than 28 days). (6) The enforcement notice must warn the person that a failure to comply with the notice is an offence. … (8) A person who fails, without reasonable excuse, to comply with an enforcement notice in force under this section is guilty of an offence. Maximum penalty - 5 penalty units … (10) If documents are given to the Children's Guardian under this section, the Children's Guardian - (a) may take possession of, and make copies of or extracts from, the documents, and (b) may keep possession of the documents for such period as is necessary for the purposes of preparing the submission or considering the application, and (c) during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Children's Guardian. (11) In this section - information includes documents person includes a government agency
After receiving information in response to its s 31 Notices the agency commenced a risk assessment under s 15(3) of the CP(WWC) Act. Section 15 relevantly provides: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. … (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. …
As part of its risk assessment process, the agency requested by Notice in writing to the applicant under s 16 of the CP(WWC) Act that he provide further information about the incident. The applicant did not respond to that Notice.
Subsection 16(2) provides that the Children's Guardian may terminate an application for a Clearance if the applicant, fails, without reasonable excuse, to provide further information within 3 months of the request being made. The agency terminated the applicant's application on this ground on 30 September 2019.
On 3 October 2019, the applicant again applied for a WWC Clearance. On 29 May 2020 the agency notified the applicant that his application had been referred for risk assessment under s 15(3) of the CP(WWC) Act due to the presence of workplace records related to allegations of child sexual assault.
On 20 April 2021 the agency issued the applicant with a Notice of Proposed Refusal of his WWCC application pursuant to s 19(1) of the CP(WWC) Act (Notice of Proposed Refusal). That Notice notified the applicant that at that stage of the application process the information the agency had considered indicated that he may pose a risk to the safety of children if he were to engage in child-related work. Pursuant to s 19(2) of the CP(WWC) Act, the agency provided the applicant with an opportunity to make any submission he wished to make in relation to the Proposed Refusal by 11 May 2021.
The Notice of Proposed Refusal sets out the list of records that the agency considered relevant in its risk assessment and the date each record was obtained. It also sets out in detail the reasons for the Proposal Refusal and the matters that informed it.
On 29 April 2021, the applicant made an application to the agency under the GIPA Act, requesting All documents, statements, videos, reports and other literature that has been cited as evidence against my WWCCC application please.
The agency received the payment of the application fee on 26 May 2021 and considered that the application was validly made on that date.
In response to the access request, the agency identified eight categories of documents within the scope of the access application. Those categories were as follows: 1. Newspaper articles regarding the Royal Commission into Institutional Responses to Child Sexual Abuse's investigation of the applicant's alleged conduct, 2. Case Study 41 from the Royal Commission into Institutional Responses to Child Sexual Abuse which relates to sexual abuse of children with disability, 3. Information provided to the agency by the NSW Police Force (NSWPF) Child Abuse and Sex Crimes Squad, pursuant to notices issued by the agency under s 31 of the CP(WWC) Act (the NSWPF material), 4. Information provided by the Department of Communities and Justice (DJC) pursuant to notices issued by the agency under s 31 of the CP(WWC) Act (the DCJ material), 5. Information provided by the South Coast Police District, pursuant to notices issued by the agency under s 31 of the CP(WWC) Act, 6. Information provided by the Disability Trust (a non-government disability service provider), pursuant to notices issued by the agency under s 31 of the CP(WWC) Act, 7. Information provided by the NSW Ombudsman Reportable Conduct Scheme pursuant to notices issued by the agency under s 31 of the CP(WWC) Act, and, 8. Records of telephone calls between the agency and the applicant.
On 5 July 2021, the agency notified the applicant of its decision in relation to the access application. In summary, the agency decided: 1. Pursuant to s 58(1)(a) of the GIPA Act, to provide access to some information (categories (d) in part, (e) and (h)), 2. Pursuant to s 58(1)(d) of the GIPA Act, to refuse access to some information (categories (c) and (d) in part) on the basis that there was an overriding public interest against its disclosure, and 3. Pursuant to s 58(1)(c) of the GIPA Act, that some information (categories (a) and (b)) was already available to the applicant on the basis that it was publicly available on a website (s 59(1)(a) of the GIPA Act).
The agency also determined that certain information (category (f) and (g) was excluded information within the meaning of clause 2 of Schedule 2 to the GIPA Act and, to the extent that the access application sought access to the excluded information, the access application was not valid by operation of s 43(2) of the GIPA Act.

[9]

The reviewable decision

On 20 July 2021 (application fee paid 13 August 2021), the applicant applied to the agency for an internal review of its decision of 5 July 2021 pursuant to s 82 of the GIPA Act. The request for review was confined to three pieces of information the subject of the original decision: 1. The NSWPF material, 2. Parts of the DCJ material (that is, the information that was redacted from what was provided to the applicant on 5 July 2021), 3. The information provided by the South Coast Police District (that is, the information that was provided to the applicant on 5 July 2021.
On 30 August 2021, the respondent notified the applicant of its decision in relation to the internal review. In short, the agency decided: 1. Pursuant to s 58(1)(d) of the GIPA Act, to refuse to provide access to the NSWPF material and the redacted DCJ material on the basis that there was an overriding public interest against its disclosure, and 2. Pursuant to s 58(1)(c) of the GIPA Act, that the information provided by the South Coast Police District was already available to the applicant (on the basis that it was already provided to him: s 59(1)(d)).
In the internal review decision, the agency also noted the following: Additional information I can provide you with I acknowledge that these decisions may not provide you with the information you are seeking. In your request for internal review, you noted that you seek this information so you may respond to the proposal to refuse your application for a Working with Children Check (WWCC) clearance. You ask to "be made fully aware of the of the accusation against [you]". While the decisions available to me in response to your GIPA application are limited by the provisions of the GIPA Act, I am of the view that the principles of good administrative decision-making mean that as far as possible, you should be made aware of the information relied upon in your WWCC risk assessment. In the interests of making a fair and transparent decision on your WWCC application, I can tell you that the proposed refusal is based on information pertaining to allegations of sexual conduct towards a sole complainant. There are no other allegations detailed in the information that I have decided not to provide you with in response to your GIPA application.
I adopt the description of the NSWPF and DJC material set out in paragraphs 46 to 47 of the agency's submissions dated 26 April 2022, which is set out following: 46. The NSWPF material comprises a covering letter from the NSWPF in response to the s 31 notice, dated 16 September 2020, and copies of two records from the NSWPF Computerised Operational Policing System (COPS) database (Event reference [no redacted]. The records relate to the complaint made to the NSWPF against the applicant in 2012 by a member of the public. 47. The respondent obtained the DCJ material under s 31 of the WWC Act in two stages, on 7 May 2019 and 13 October 2019. The DCJ material comprises a s 31 covering letter dated 7 May 2019, Risk of Serious Harm (ROSH) reports, interviews with the affect child (sic), including Joint Investigative Response Team (JIRT) interviews, and assessments undertaken by DCJ workers.

[11]

The evidence relied upon by the agency

In her Affidavit dated 26 April 2022, Detective Sergeant Byrne-Hickman states: … 1 I am a Detective Sergeant of the NSW Police Force ("NSWPF"). I am currently the Team Leader of the Child Abuse Squad Illawarra. My duties include the overall supervision of 11 Detectives within the squad and the overall supervision of all investigations. I have investigated over 600 cases of child abuse. These cases predominantly involved child sexual abuse. … 3 The evidence I give is based on my extensive experience in the investigation of matters involving allegations of sexual assault, including against children. Where stated, it is also based on my review of the NSWPF's files … 7 In my experience, complainants in sexual assault matters and, in particular, victims who are children, face complex emotional obstacles when deciding to come forward and participate in an investigation. Participation in an investigation is often traumatic, as it forces the victim to recall the assault in minute detail. It is often painful and uncomfortable for victims to talk about the assault with Police officers. Victims often express feelings of embarrassment, shame, guilt and vulnerability. 8 In order to manage and mitigate these feelings and concerns, the victim is made to understand that their statement and contact details will not be released and the information they provide will not be openly discussed with people outside the investigative team, except to the extent necessary to progress the investigation. 9 When the victim is a child, this process can be particularly complex because the child may not understand the concept of confidentiality. In these circumstances, Police will seek to explain concepts such as confidentiality to the victim using terminology that the child can understand. This process is even more complex in circumstances where the victim is a child with disability. Depending on the extent of the disability, the child may be unable to understand the concept of confidentiality and may be unable to consent to release of their personal information. A child victim with disability is particularly vulnerable and the challenges described above will be more acute. 10 Additionally, parents of a child victim, particularly a child victim with disability, are likely to have real concerns about the confidentiality of the child's statement, contact details and responses to interview questions and how this information may be used. In order to manage and mitigate the parent's feelings and concerns, the parents will also be made to understand that the child's statement, contact details and responses to interview questions will not be released and the information they provide will not be openly discussed with people outside the investigation team, except to the extent necessary to progress the investigation. 11 Access restrictions are applied to case files dealing with allegations of sexual assault in the Computerised Operational Policing System ("COPS"). Where information is gathered from complainants, whether by way of statement or recorded interview, and is uploaded to COPS in a sexual offence matter, it will be tagged as a "sensitive" case file. This further restricts access to the case file, and access will not be granted unless a person has a "Reason for Access". Effect of releasing statements Impact of future supply of information 12 The material provided to the OCG by the Child Abuse & Sex Crimes Squad in response to the s. 31 notice, and the information contained in the JIRT interviews, is information about an alleged sexual assault. This information contains personal information and details of the alleged victim of the assault, who is a child. It is my view that if the OCG was to provide access to information of this nature, in response to applications under the GIPA Act, this would prejudice the supply of similar information to the NSWPF in the future. 13 I have personally experienced that it can be difficult to obtain the cooperation and trust of complainants, victims and witnesses in sexual assault matters… I have dealt with victims who were reluctant to speak to Police because of feelings of shame and embarrassment at sharing such intimate and personal details with a stranger. I have also dealt with victims who feared reprisals from, or the breakdown of relations between, a family or community groups … 14 In relation to allegations involving child complainants or child victims, and particularly in relation to allegations involving victims with disability, building a relationship of trust between Police and the child is of vital importance. This is because children are the most vulnerable group in our community and often (as here) the persons against whom complaints are made are known to the child. Children with disabilities are even more vulnerable. … In my view, part of the child victim's safety and wellbeing is that child's anonymity. I have experienced circumstances where a breakdown of trust between the Police and a victim has been detrimental to the investigation and the wellbeing of the victim. 15 As part of building this relationship with a complainant or victim, the Police need to be able to assure the complainant or victim that any information they provide will be kept confidential in order the gain their trust and cooperation. The release of information obtained from a complainant, other than in the context of criminal proceedings (in which case, statutory protections are engaged), would be a breach of the confidentiality promised to the complainant or victim. 16 If Police could not assure complainants or victims that information provided by them will be kept confidential, it is my view that may complainants and victims would be reluctant to speak with Police. In light of the complex emotional obstacles which already face victims, and in particular child victims, of sexual offences, any concern that Police will not respect their confidentiality would be likely to operate as a powerful disincentive in reporting the offence. This would significantly undermine Police's ability to investigate sexual offences. 17 Police also need to consider the feelings of the child victim's parents. If Police were to release personal information of a child to others within the community without the consent of their parent, this would erode trust in the Police… 18 Any reduction in the number of complaints made to Police, or in the willingness of complainants or victims to cooperate with an investigation, would negatively impact the ability of Police to exercise their investigative and law enforcement functions. Reprisals and harassment 19 Records of interview with complainants and victims usually contain a significant amount of personal information about the complainant, the alleged offender, and potential witnesses or other persons of interest. 20 On the basis of my significant experience in investigating sexual offences, I am also concerned that release of information of the nature requested by the applicant would significantly increase the risk of harm to persons so identified. For example, complainants, victims or potential witnesses may be harassed or assaulted, which may affect their willingness to cooperate with Police. 21 All of the above facts need to be considered when releasing information to members of the public. Once information has been released into the public arena, it cannot be controlled. If sensitive Police information, such as statements and records of JIRT interviews, was provided to alleged perpetrators for reasons other than the need to give evidence in criminal proceedings, complainants would feel the trust they placed in Police had been breached. This would have adverse consequences for the continued cooperation of existing and future complainants with Police.
In her Affidavit dated 2 June 2022, Detective Sergeant Byrne-Hickman states: … Clarification of statement dated 26 April 2022 6 Throughout my statement dated 26 April 2022, I used the word "victim" as a generic term to refer to a person, including a child, who has allegedly been the subject of sexual abuse. .. 9 By my use of the word "victim" in my statement stated 26 April 2022, I did not intend to limit my evidence to only those circumstances in which allegations of sexual abuse have been proven. Rather I had intended to use the word "victim" to describe a person who is now more commonly described by members of the NSWPF as a "complainant" in the investigation of matters involving allegations of sexual assault.
In his Affidavit dated 26 April 2022 Mr Mills states the following: … 1 I am the Manager, Assessment and Review, of the Working with Children Check Operations Directorate within the Office of the Children's Guardian ("OCG"). I have held this position since 2018. I have been employed at the OCG since June 2012, when the Working with Children Check ("WWCC") was first implemented … … OCG procedures regarding information 9 Section 31 of the Act empowers the Children's Guardian, by notice in writing to require any person to provide her with a statement or information relevant to an assessment of whether a person poses a risk to the safety of children ("s 31 notice"). A s 31 notice may be given for several reasons, including for the purposes of determining an application for a WWCC clearance or undertaking an assessment of an applicant or holder of a clearance. … 11 The OCG has developed standard templates for s 31 notices. In my experience, I have seen that many agencies also have standard templates as part of their response and will provide the information to the OCG under a covering letter indicating that the information is sensitive and confidential. 12 Once received, the information obtained pursuant to a s 31 notice is securely stored on the OCG's WWCC system. Only certain persons who have undergone security clearance and with the endorsement of the WWCC Director can access that system. The information is treated as confidential and is not disclosed to any third party. It is generally not released to the person who has applied for the WWCC. 13 However, in order to uphold procedural fairness obligations, during the risk assessment process RAOs will engage in a verbal conversation with the applicant to discuss the material being relied on in the risk assessment, to afford them the opportunity to respond. Moreover, if a matter is to proceed to a proposed refusal (dealt with in s 19 of the Act) and then refusal/cancellation (dealt with in ss 20/23), the information is put to the applicant in written from, in a manner which summarises the reasons why the application is to be refused. This statement of reasons will refer to the documents acquired under s 31 and information contained therein. In doing this, RAOs observe sensitivities around confidentiality and privacy and will restrict the release of information to that which the applicant needs to know in order to provide a response, or be made aware of the reasons for the decision. The statements of reasons are subject to review by a Team Leader and reviewed and signed by the Director. The statements may also be reviewed by myself and members of the OCG General Counsel Directorate. 14 As a matter of practice, the confidentiality of information supplied by members of the public to agencies and then provided to the OCG under a s. 31 notice is maintained, so far as possible. If an applicant for a WWCC seeks to access the actual documentation received under s 31, they are requested to make an application for this information under the Government Information (Public Access) Act 2009 either via the OCG General Counsel Directorate or directly from the agency who provided the information to OCG. 15 I would be concerned if these measures were not observed and sensitive information obtained pursuant to a s 31 notice was released to an applicant for a WWCC. I have particular concerns in relation to the release of information provided to the OCG by the NSW Police Force ("NSWPF") and the Department of Communities and Justice ("DCJ") under s 31 of the Act. … 17 In [FLF's] case, and in risk assessments generally, material provided by the NSWPF and DCJ under s. 31 is provided to the OCG under a covering letter indicating that the information is sensitive and should be treated confidentially. … 18 Information provided by NSWPF usually contains a statement that the information is classified as "Sensitive", should be handled and stored in accordance with this classification and should not be released except as required by law. In my experience, the information provided by NSWPF is generally very sensitive material. It often relates to police intelligence or investigations that have not been finalised and which could be re-opened at any time. 19 Information provided by DJC includes a request that the information be treated in strict confidence, and any request for the information by a third party should be emailed to a specified DCJ Information Exchange email address. There is also a notation that the records may contain child at risk of harm reports that have not been screened for reporter's details in accordance with s 29(1)(e) of the Children and Young Persons (Care and Protection) Act 1998. DCJ have very strict policies about the disclosure of their information. Some of these policies are in place because of the statutory non-disclosure provision in s 29 of the Children and Young Persons (Care and Protection) Act 1998. My understanding of the purpose of the measures taken by DCJ is to encourage members of the community to report concerns or allegations regarding children with the assurance that they can do so confidentially. 20 The OCG relies on information provided by frontline agencies such as the NSWPF and DCJ to conduct risk assessments. If measures to protect this information were not upheld, and if this in turn affected members of the community's willingness to report information due to fears of privacy breaches or breaches of confidentiality, this would ultimately negatively impact the type of information frontline agencies are willing or able to disclose to the OCG. This in turn could have a detrimental impact on the quality of the risk assessments conducted by the WWCC, the purpose of which is to protect children. The functioning of the WWCC relies on the sensitive handling of the information received from other agencies. …

[14]

The GIPA legislative scheme

The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in s 3 which states: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive release of government information by agencies, and (b) by 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.
This object is amplified with a statutory command, contained in section 3(2), which provides: (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 possible cost, access to government information.
Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information: 5 Presumption in favour of disclosure of Government Information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1): 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4(Access applications) unless there is an overriding public interest against disclosure of the information. …
Part 2, Division 2, of the GIPA Act concerns the public interest considerations that are associated with access to government information. Section 12 in that Division provides: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: The following are examples of public interest considerations in favour of disclosure of information - (a) 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. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. … (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. …
Section 13 contains the "public interest test" for determining if there is an overriding public interest against disclosure. It provides: 13 Public interest test 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 in favour of disclosure.
Section 14 contains public interest considerations against disclosure. It provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information.
The Table 14(2) considerations that the agency considers are relevant in these proceedings are: 1 Responsible and effective government: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, (g) result in the disclosure of information provided to an agency in confidence, … … 3 Individual rights, judicial processes and natural justice: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 …,
Section 15 sets out the principles that apply to the determination of the public interest. It provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their 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 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.
In Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [24]-[25], the Appeal Panel explained the approach to determining whether there is an overriding public interest against disclosure as a two-step process. The agency case for refusal must rely on one or more of the s 14 considerations. In so as the considerations in the Table to s 14 are engaged, the Tribunal's task is then to weigh that case against the factors favouring disclosure mindful of the injunctions that appear in both ss 12 and 15.
Part 4, Division 3 of the Act sets out the process according to which an agency is to deal with an access application. Section 55 in that Division provides that in determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take personal factors related to the application into account. It provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses -2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) The applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. … (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides: 58. How applications are decided (1) An agency decides an access application for government information by: … (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, …
Section 105(1) of the GIPA Act provides that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.
Section 107 prescribes the procedure according to which the Tribunal is to deal with public interest considerations. It relevantly provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overrising public interest against disclosure. …

[17]

The DCJ material

Clause 10 of Schedule 1 to the GIPA Act provides: 10 Care and protection of children It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection Act) 1998 applies.
Section 29 of the CYP(CP) Act relevantly provides: 29 Protection of persons who make reports or provide certain information (1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons - … (d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings) - (i) care proceedings in the Children's Court, (ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth, (iii) proceedings in relation to a child or young person before the Supreme Court of the Civil and Administrative Tribunal, (iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims' Rights and Support Act 2013, (v) proceedings under the Coroners Act 2009, and (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with - (i) the consent of the person who made the report, or (ii) the leave of a court or other body before which proceedings relating to the report are conducted, and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person. (1A) A certificate purporting to be signed by the Secretary that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report. … (3A) The protections given by this section to a person who makes a report apply to - (a) any person who provided information on the basis of which the report was made, in good faith, to the person, and (b) any person who otherwise was in good faith concerned in making such a report or causing such a report to be made, in the same way as they apply in respect of the person who actually made the report. … (6) In this section - Report includes a report under sections 24, 25, 27, 120, 121, and 122.
In this matter it is section 24 of the CYP(CP) Act that is relevant. It provides: 24 Report concerning child or young person at risk of significant harm A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Secretary.
The agency has filed a Certificate pursuant to section 29(1A), Children and Young Persons (Care and Protection) Act 1998 (NSW) issued by the delegate of the Secretary of the NSW Department of Communities and Justice on 29 April 2022 which includes the following statement: [the delegate] has reviewed the following documents in the un-redacted format and with redactions, for the purposes of proceedings in the matter of [FLF] v Office of the Children's Guardian …

Child protection records originally downloaded from DCJ's child protection records database (KiDS), which were the subject of consultation from the Office of the Children's Guardian in accordance with s 54 of the Government Information (Public Access) Act 2009. This is to certify that the following pages were partially redacted from the above-named documents, as they relate to reports to which s 29 of the Children and Young Persons (Care and Protection) Act 1998 applies
Pages 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 32, 38, 47, 49, 51, 53, 55 and 57

I note that the page numbering in the redacted and non-redacted version of the DCJ materials is different. I will refer use the non-redacted page numbers and where necessary indicate which pages these are in the redacted version.
The agency submits that the s 29(1A) certificate is sufficient proof of the fact that the DCJ material is subject to the conclusive presumption in clause 10 of Schedule 1 of the Act. Two observations must be made in relation to this submission.
First, it will only be so if there is no evidence to the contrary. In my view this requires me to examine the non-redacted documents to satisfy myself that they are documents to which s 29 applies: Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13 at [41]. The Tribunal bears such an onus because the applicant is obviously inhibited from doing so because he has received a redacted version of these documents. However, this is a relatively abstract analysis that only requires the Tribunal to be satisfied that the documents have the characteristics of a report to which s 29 applies: Dewhirst at [38] applying Camilleri at [29] by analogy.
Second, the Certificate can only apply to those pages of the DCJ material to which it refers. It thus does not apply to pages 7, 8, 20, 22-30, 33-37, 39, 41, 43, 45, 46, 48, 50, 54, 56, 58, 60, 62, and 64.
My examination of the DJC documents referred to in the s 29(1A) Certificate satisfies me that they have the characteristics of a report within the meaning of s 24 of the CYP(CP) Act. There is no evidence or submission to the contrary, save perhaps that it may be an implication of the applicant's submissions that the report(s) were not made in good faith, which is necessary to attract the operation of s 29. However, in conducting an administrative review of a decision made under the GIPA Act, the Tribunal is not in the position to determine in any primary way if a report was made in good faith. It could only have regard to such a determination made by a Court or other authority with competent jurisdiction: Dewhirst at 41.
In arriving at this conclusion, I am satisfied that the term "report" should be given a wide meaning consistent with her Honour, Fullerton J's reasoning in Director General, Department of Family and Community Services v FEW [2013] NSWSC 1448 at [at 13-14] and 17-19]. It includes not only the original risk of harm report(s), but also to records produced during and following investigation and assessment of the report(s) which refer to or repeat the terms of the primary report of harm.
Turning to those pages not included in the s 29(1A) Certificate, pages 7 and 8 (pages 14 and 15 in the redacted version) are a "Person Summary" for FLF which redacts the name of a person who provided a s 24 report. I am satisfied that this document is derivative of the risk of harm report and attracts the operation of s 29. Page 20 (page 27 of the redacted version) is the second page of an Assessment Record, the first page of which is incorporated into the s 29(1A) Certificate. It is therefore not apparent to me why the second page was not. In any event, it is an assessment record which refers to the primary report of harm and therefore attracts the operation of s 29. Pages 22-24 (pages 29 to 31 in the redacted version) is a File Note Record of an interview conducted as part of the investigation of the s 24 report. It refers to and repeats the s 24 report. It therefore attracts the operation of s 29. Page 25 to 30 (pages 32 to 37 in the redacted version) is also a File Note Record of an interview untaken in the investigation of the s 24 report. It therefore attracts the operation of s 19. Page 31 (page 38 in the redacted version) is a File Note Record of information obtained in the investigation of the s 24 report, to which it refers. It therefore attracts the operation of s 19.

[19]

Public interest considerations in favour of disclosure

The GIPA legislative scheme establishes that there is general, public interest in favour of the disclosure of government information unless there is an overriding public interest against its' disclosure: s 3(1)(b) and (c) and 12(1). In the circumstances of this case, it is apposite to note that it is an object of the act to maintain and advance a system of government that is open, accountable, fair, and effective. The Tribunal has an obligation pursuant to the statutory command contained in s 3(2) to interpret and apply the provisions of the Act to give effect to that object. The public interest in the disclosure of government information is reinforced by the s 5 presumption in favour of the disclosure of government information unless there is an overriding public interest against its disclosure. It is also reinforced by the legally enforceable right of an access applicant contained in s 9(1) to be provided with government information unless there is an overriding public interest against such disclosure. It is axiomatic in the GIPA legislative scheme it is a relevant consideration of great weight that a person has a right to access government information unless there is an overriding public interest against its disclosure.
Having regard to the s 12(2) examples of considerations in favour of the disclosure of information, in the circumstances of this case disclosure of the NSWPF material has the potential to enhance government accountability for administrative action that has a serious impact on the reputation and livelihood of individuals (being the WWCC) and inform the public about the operations of the agency and its policies and practices in that regard. As contended for by the applicant, it also has the potential to reveal if the agency has engaged in negligent or improper conduct in its risk assessment of his WWCC application.
In this case the information sought by the applicant concerns him personally for the purposes of the examples in s 12(2) and there are compelling personal factors of the application for the purposes of s 55 of the Act. In this respect the applicant's motive in seeking access to the NSWPF material is to enable him to respond to the s 19 Notice of Proposed Refusal of a WWCC. It must be accepted that such a refusal has serious consequences for the applicant's career, livelihood, and reputation.
These considerations in favour of disclosure of the NSWPF information are to be given significant weight.

[20]

Public interest considerations against disclosure

With respect to the Table to s 14 considerations the Tribunal must be satisfied that the disclosure "could be reasonably expected to" have a particular effect.
The term "could reasonably be expected to" was considered by the Full Court in a broadly equivalent statutory scheme in Re Attorney-General's Department and Australian Iron and Steel Pty Limited v Peter Cockcroft G260 of 1985 Administrative Law [1986] FCA 35. At [29] Bowen CJ and Beaumont J said: 29. The words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s.43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal concluded at [25] after reviewing the relevant authorities that the test for whether disclosure "could reasonably be expected to prejudice the future disclosure of information" is an objective one: 25. …The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC
The Tribunal must ask itself if the disclosure of the information could reasonably be expected to have the relevant effect. This is ultimately a question of fact to be established to the relevant standard of proof on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42].
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254, after reviewing the relevant authorities, an Appeal Panel of the Tribunal considered the quality of evidence required to establish that disclosure of the information could reasonably be expected to have the relevant effect. It held at [59]: 59. Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

[22]

Is the NSWPF material confidential information?

In Camilleri, the Appeal Panel held at [33]-[34] that the question as to whether information is "confidential information" for the purposes of clause 1(d) is to be "examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received" and "should focus on the point of receipt and the administrative standards and community understanding which surrounded it".
The NSWPF information was produced to the Children's Guardian pursuant to a s 31 Notice which required the production of this information. Even so, it was provided to the Children's Guardian with redaction of the names of the persons referred to in it other than the name of the applicant. The letter under cover of which the NSW Police Force produced the material to the agency is marked "Sensitive - Law Enforcement" and the letter contains the following statement "[t]he information is classed "Sensitive - Law Enforcement". It should be handled and stored in accordance with this classification and should not be released except required by relevant law." I am satisfied that these are indicia of information received in confidence.
Mr Mills gives evidence, including in paragraphs [11], [12], [14], [15] [17] and [18] of his Affidavit, that material sought to be produced to the agency under s 31 is requested and produced under the expectation that it will be treated as confidential information. He also gives evidence of the agency's administrative practices upon receipt of this information to ensure that it is kept confidential. This witness evidence in consistent with the objective facts I have set out above. The circumstances of receipt of the information to which Mr Mill's deposes has the indicia of confidential information.
The NSW Police Force's covering letter recognises in the phase "should not be released except as required by law" that there may be circumstances in which the agency would be compelled by law to release that information. However, this does not mean that this information was not provided to the agency on a confidential basis. Rather, the fact that the release should only occur as required by a relevant law (emphasis added) emphasizes that fact. The GIPA Act is potentially a relevant law which might compel disclosure of this information, but for the purposes of clause 1(g) of the Table to s 14, this does not mean that it is information not obtained by the agency from NSW Police in confidence, or that it is not confidential information.
Section 31(10)(c) of the CP(WWC) Act provides that if documents are provided to the agency under s 31, it must permit them to be inspected at all reasonable times by a person who would be entitled to inspect them if they were not in the possession of the agency. This subsection also contemplates that there would be some circumstances where other persons may have access to information provided to the agency pursuant to a s 31 Notice. However, the restriction imposed by the subsection, which is to those persons "entitled to inspect them if they were not in the possession of the agency" underlines the confidential nature of the documents. In this respect, the evidence does not establish that the applicant is a person who would be entitled to inspect a report of an allegation of a sexual assault of a young person on the NSW Police Force's COPS database.
Having regard to the foregoing analysis, I am satisfied that the NSWPF information was obtained by the agency in confidence and that it is confidential information.
For reasons that are set out following, it is also necessary to consider if the NSWPF information was obtained in confidence by Police from the person(s) providing that information. The information is a report of alleged child sexual assault.
In her Affidavit dated 26 April 2022 at paragraphs [7] to [10] and [15] and [16], Sergeant Byrne-Hickman has given evidence about the complex emotional difficulties faced complainants in sexual assault matters, particularly where they are children. She has also given evidence as to the assurances that are given to complainants and their associates upon the making of a report of sexual assault. This includes assurances in relation to the sensitivity of this information and the confidentiality with which it will be treated. Administratively, such information is subject to controls which prevent its disclosure within Police other than to persons who have a direct need to know because of their role in its investigation (at paragraph [11]). Of course, it must also be accepted that this information, or some of it, may ultimately become evidence in criminal proceedings conducted in open court. However, in my view, this does not render a report of sexual assault not confidential at the time it is reported and is being investigated.
The applicant expresses concern about false reports of sexual assault and the risk that such reports are uncritically examined. He appears to suggest that the potential for public release of such reports would discourage the making of false reports or at least enable such false reports to be exposed.
It may be accepted that there is the potential for a false report of sexual assault to be made to the Police, just as there is the potential for false reports in any other area of law enforcement. However, I cannot see that this would render receipt of such a report non confidential at the time of its receipt. Whether such a report has substance or not, it appears to me that there are compelling reasons why complainants, their associates, and persons of interest ought to be able to rely upon the information being treated as confidential while it is investigated. Disclosure of the information has the potential to seriously impact on reputation, relationships, livelihood, and well-being of the persons affected by the complaint.
In this case, the NSWPF material is now 10 years old, and it has not given rise to criminal proceedings. However, I am satisfied that it nevertheless remains confidential information because that is the condition under which it was received by Police at the material time.
For the foregoing reasons I conclude that the NSWPF material is confidential information for the purposes of clause 1(d) of the Table to s 14.

[24]

Could disclosure of such information reasonably be expected to prejudice the supply of such information to an agency in future

At the outset of this analysis, I note that that clause 1(d) refers to "an agency" not "the agency". That is, in context, it encompasses any public sector agency, including Police, not just the Children's Guardian.
In Ansoul v City of Sydney [2017] NSWCATAD 65 the Tribunal summarised the principles to be applied in considering clause 1(d) as follows: 33 "Prejudice" under the GIPA Act has been held to have the same meaning as under the repealed Freedom of Information Act 1989, which is its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. 34 In Commissioner of Police, New South Wales Police Force v Camilleri [2013] NSWADT 80 the Appeal Panel stated that the question of whether information is "confidential information" is to 'be examined, primarily at least, by the relevance to the agency's evidence as to the conditions under which it conducts a service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it". 35 In Macquarie University v Howell (No 2) [2009] NSWADTAP19 at [10] the Appeal Panel said: "In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which information of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees as to confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information. 36 In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].
Although the agency appears to contend that the disclosure of the NSWPF material may lead to Police being less responsive to a Notice issued to it under s 31 of the CP(WWC) Act (paragraph [20] of Mr Mills' Affidavit) I am not satisfied that there is any real possibility of that occurring. Section 31 is a compulsory power to which the NSW Police Force must yield. Given that, I cannot see how Children's Guardian's ability to obtain information from Police that is relevant to its functions in relation to a WWCC could be compromised if the NSWPF information were to be disclosed.
In this regard I respectfully disagree with what was said by the Tribunal in Walker v SafeWork NSW [2022] NSWCATAD 94 at [38]. The NSW Police Force has a statutory duty to comply with the s 31 Notice. It is not free to be "less frank and comprehensive" or "more guarded" in response to such a Notice on the basis that the information it produces pursuant to the Notice might be disclosed. There is no statutory foundation for the discretion imputed to the recipient of a compulsory notice to produce in Walker. It ought not to be a factor weighing against disclosure of the relevant government information.
What is really in issue for the purposes of this consideration is whether disclosure of the NSWPF information would reasonably be expected to have the effect of impairing Police's law enforcement functions in relation to sexual assault, and child sexual particularly. If it were to do so, it may also indirectly impair the Children's Guardian's ability to obtain from the NSW Police Force under s 31 of the CP(WWC) Act information relevant to its functions under that Act because the NSW Police Force would be less likely to hold relevant information.
In her Affidavit dated 26 April 2022, Detective Sergeant Byrne-Hickman gives evidence as to the difficulties Police encounter in obtaining the cooperation and trust of complainants, their associates, and other witnesses in sexual assault matters. This is because of the shame and embarrassment that such persons typically experience in disclosing relevant, intimate, personal information to Police, which is necessary for investigation (paragraph [13]). She gives evidence that this is particularly the case involving child complainants, and complainants with disability, because of their aggravated disadvantage and dependence and because persons of interest in such investigations are often known to the complainant (paragraph [14]).
Detective Sergeant Byrne-Hickman gives evidence that these circumstances require Police to build trust and cooperation by providing complainants, close associates, and witnesses, with assurances in relation to the confidentiality with which the information they provide will be treated (paragraph [15]). She expresses the opinion that many complainants and close associates would be reluctant to speak with Police if assurances of confidentiality could not be given, or if confidential information was made public contrary to those assurances (paragraphs [16] and [17]). She expresses the view that the potential for confidential reports of sexual assault, including child sexual assault, to be released in response to an access request made under the GIPA Act would create a disincentive to the making of such reports to the NSW Police Force, negatively impacting on its law enforcement functions in the areas of sexual assault and child sexual assault (paragraph [18]).
In his oral and written submissions, the applicant contended that there is no objective foundation for the opinions expressed by Sergeant Byrne-Hickman outlined above. That is, that there is no evidence that the release of information of the character of the NSWPF material would result in complainants and others being less likely to trust and cooperate with Police. However, given her specific role and years of experience, Detective Sergeant Byrne-Hickman's evidence is expert evidence. The applicant has not filed equivalent expert evidence that impugns the opinions given by Detective Sergeant Byrne-Hickman. It may be accepted the applicant has some personal experience of a sexual assault investigation, but with respect, as a lay person, he has no systemic insight into the operational issues that Police confront in attempting to respond effectively to sexual assault within the community.
In Simring v Commissioner of Police [2009] NSWSC 270 at [69], Smart AJ observed: 69 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.
In McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164 at [25], the Tribunal said: 25 In respect of determining whether disclosure of the information would "prejudice" the future supply of such information to the agency, it is well established that the test is not whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in future [citations omitted]. See also: Martin v Commissioner of Police [2005] NSWADT 23 at [45].
This requires the Tribunal to engage in the relatively abstract analysis described in Director-General, Department of Education and Training v Mullett [2002] NSWADTAP 13 at [58]: 58 … [it requires] the Tribunal to engage in a relatively abstract analysis. It must ask whether the material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion: to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary …
Having regard to Detective Sergeant Byrne-Hickman's evidence and the relevant principles distilled in Simring, McMahon and Mullet, I am satisfied that, at a systemic level, the disclosure of the NSWPF material could reasonably be expected to have the effect of impairing the NSW Police Force's law enforcement functions with respect to sexual assault including child sexual assault. It could reasonably give rise to an apprehension by complainants, associates, and other witness that the information they provide to Police may be made public. I am satisfied that this has a real and substantial potential to deter such persons from making complaints of sexual assault and from cooperating with Police investigations of sexual assault. That is particularly the case because of the personal and intimate nature of such complaints and the shame, embarrassment, humiliation, and distress potential complainants typically experience.
Also having regard to Detective Sergeant Byrne-Hickman's evidence, I am satisfied that the release of reports of sexual assault to Police under the GIPA Act would also act as a powerful disincentive to complainants and others making such reports because of a fear of exposure to reprisal from the person of interest and their associates. Again, I am satisfied that this is a reasonably based concern, and a real and substantial risk.
In the circumstances of this case, it is important to emphasise that it is a systemic level of analysis that must be engaged in.
In this respect the applicant submits, and it must reasonably be accepted, that disclosure of the NSWPF information could not reasonably be likely to discourage the complainant and his associates from making a complaint of sexual assault in the future, because they have disclosed extensive information in relation to the alleged sexual assault in Case Study 41. However, the question is not whether this complainant and his associates would be discouraged to make a further complaint of sexual assault if a complaint to NSW Police of this character was disclosed. It is whether complainants of sexual assault and their close associates in general are likely to be discouraged. As stated above, I am persuaded that this is the case.
The applicant also submits, and I accept, that disclosure of the NSWPF information would not lead to any reprisal against the complainant or his associates in this case. The applicant has been aware of the complaints made to Police for a period exceeding 10 years and he has never attempted to contact the complainant. However, the question is not whether the complainant and his associates would be discouraged from making such a report to Police in future, but whether complainants and their associates might be discouraged by the fear of reprisal. I am satisfied that this is a real and substantial risk.
Sexual assault and child sexual assault are very serious social and criminal concerns. I consider it fundamentally important no disincentive to the reporting of such allegations to Police be created by the potential release of these confidential reports in response to an access application made under the GIPA Act. Nor ought the provisions of the GIPA Act operate in any way that inhibits the ability of Police to establish trust and cooperation with complainants of sexual assault, their close associates, and victims.
For these reasons I am satisfied that clause 1(d) of the Table to s 14 is a relevant, and overriding, consideration against disclosure of the NSWPF material. I give it great weight.

[31]

Reveal an individual's personal information (clause 3(a) of the Table to s 14)

The agency contends that the disclosure of the NSWPF information would reasonably be expected to have the effect of revealing an individual's personal information. This is an overriding public interest consideration against disclosure pursuant to clause 3(a) of the Table to s 14.
The term "personal information" is defined is clause 4(1) of Schedule 4 of the Act, relevantly, as follows: 4 Personal information (1) In this Act, "personal information" means 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. …
The word "reveal" is defined in clause 1 of Schedule 4 to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."
In relation to the clause 3(a) consideration the agency also relies on the Information Commissioner's: Guideline 4 - Personal Information as a public interest consideration under the GIPA Act. In this respect it submits, pursuant to s 15(b), that agencies must have regard to any relevant guidelines issued by the Information Commissioner when determining whether there is an overriding public interest against disclosure.
At [1.5] to [1.7] of that Guideline it is noted that for the purposes of determining whether a person's "identity is apparent or can reasonably be ascertained", "it is not necessary that the identity of the person be widely known: it will be sufficient to satisfy the definition of personal information if the information is communicated to someone who is able to identify the person".
The NSWPF information contains information about the young person alleged to have been the subject of a sexual assault and three other persons including the applicant. The applicant's name appears in the information. The name of each other person is redacted (to avoid misunderstanding, these names are redacted in the s 31 documents produced by the NSW Police Force to the agency). However, the information includes other personal information and opinions from which the identity of these persons is apparent or could reasonably be ascertained.
I have read the documents, and excerpts of documents, relevant to the applicant in Case Study 41 on the website of the Royal Commission into Institutional Responses to Child Sexual Abuse. It must be accepted that all the personal information contained in the NSWPF information has already been revealed in that context, particularly in Exhibits 41-006 and 41-007. This information is available to the public on an unconditional basis.
Although the names of the young person and certain other persons are deidentified in the Case Study 41 materials there is detailed other information from which their identities would already be apparent to the applicant. Disclosure of the NSWPF information could not reasonably be expected to have the effect of revealing this personal information to him.
Nor could it have the effect of revealing that information to the public at large. That is because the Case Study 41 material is already available on an unconditional basis to the public. There is not a single element of personal information contained in the NSWPF information that is not contained in Case Study 41 material (particularly in Exhibits 41-006 and 41-007).
In this respect, the circumstances in this case are quite different to those that pertained in Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 and Davis v Secretary, Department of Education [2022] NSWCATAD 55 where the applicant's pre-existing knowledge of personal information had to be distinguished from the fact that disclosure of the information under the GIPA Act would potentially reveal it to the public at large on an unconditional basis. In this case the personal information is already available to the public at large on an unconditional basis.
For this reason, I conclude that the clause 3(a) of the Table to s 14 is not a relevant consideration in this case.

[32]

Contravene an Information Protection Principle (clause 3(b) of the Table to s 14)

The agency contends that the disclosure of the NSWPF material would reasonably be expected to have the effect of contravening an Information Protection Principle (IPP) which is an overriding consideration against disclosure pursuant to clause 3(b) of the Table to s 14.
In this respect the agency contends that disclosure of the NSWPF material would constitute a contravention of IPP 11 (section 18 of the Privacy and Personal Information Protection Act 1998 (NSW), which 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 s 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.
I do not accept that IPP 11 (s 18 of the PPIP Act) has any relevance in this case. The NSWPF information was "collected" and "held" for the purposes of the PPIP Act as an incident of that agency's law enforcement function. It was "disclosed" to the Children's Guardian pursuant to a s 31 Notice compelling its production.
Section 25 of the PPIP Act relevantly provides: 25 Exemptions where non-compliance is lawfully authorised or required (1) A public sector agency is not required to comply with section … 18 … if - (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law …
In this case the disclosure of the NSWPF information to the agency was clearly exempt from the operation of s 18 by s 25(1) because the production of that information was required by the Notice issued to the NSW Police Force by the agency under s 31 of the CP(WWC) Act.
Although the agency has not released the documents themselves, it has already disclosed to the applicant the substance of the NSWPF information in its s 19 Notice of Proposed Refusal of a WWC Clearance. It may be inferred that it did not consider that IPP 11 (s 18) presented any barrier in it doing so. It was correct in that respect. Non-compliance with IPP 11 is necessarily implied by the powers and functions reposed in the agency by Parts 2 and 3 of the CP(WWC) Act.
Administrative action pursuant to those Parts affects the rights of an applicant for a WWC Clearance. Because that is so, the agency has a common law duty to accord an applicant procedural fairness: Kioa v West (1985) 159 CLR 550. That usually requires the disclosure to an applicant all evidence being considered and providing the applicant with the opportunity to respond to it. That is what the agency did.
For the foregoing reasons I conclude that clause 3(b) of the Table to s 14 is not a relevant consideration in the circumstances of this case.

[37]

Application the public interest test

In addition to the general statutory imperatives in favour of disclosure of the NSWPF information, there is a compelling personal factor of the application in this case. The applicant wants access to this material because he believes it will better enable him to respond to the s 19 Notice of Proposed Refusal of a Working with Children Clearance. That Clearance may affect the applicant's ability to work in his chosen field, and it may affect his livelihood. It will impact on his personal and professional reputation. These are important considerations that are to be given significant weight.
Against that, there are two overriding public interest considerations against disclosure of this information. They concern the ability of the NSW Police Force to receive complaints of sexual assault, including child sexual assault, in confidence and to build trust and cooperation with complainants, their associates and witnesses through sensitive and confidential communication and information collection. The clause (1)(d) and 1(f) considerations are not additive in this case. They amount to the same consideration viewed through slightly different lenses. But it is a consideration that is to be given great weight for the reasons I have stated above.
In weighing these competing interests in the balance, with respect to the personal factors of the application, I note that while access to the form of the NSWPF information has been refused by the agency, the substance of the allegations contained in that information has been disclosed to the applicant in detail in the section of the s 19 Notice of Proposal Refused of WWCC Application headed "[e]vents relevant to the assessment". It is unnecessary to traverse here the detail of what is set out there.
The applicant has also been notified of the limit to the subject matter of the information to which access has been refused (which includes the NSWPF information) in the internal review outcome under the heading "[a]dditional information I can provide you with". In summary, it is stated there that the proposed refusal pertains to allegations of sexual conduct towards a sole complainant.
The applicant also has available to him, as does any other member of the public, the Case Study 41 materials of the Royal Commission into Institutional Responses to Child Sexual Abuse that are relevant to him.
Having regard to these matters, I am satisfied that the applicant is reasonably able to respond to the s 19 Notice of Proposed Refusal of his application for a WWC Clearance without being granted access to the form of the NSWPF information (that is, the documents themselves). It does not give rise to procedural unfairness to because there is no practical injustice: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2002) 225 CLR 88; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6.
I thus conclude that despite the compelling personal factors of the application, the overriding public interest in NSW Police Force being able to receive complaints of sexual assault, including child sexual assault, on a confidential basis, and build trust and cooperation with complainants, close associates, and witnesses through confidential communications, must prevail to prevent the disclosure of such information in response to a GIPA access application. As I have stated above, this is a conclusion reached on the basis that the release of such information could reasonably be expected to discourage the reporting of sexual assault allegations at the systemic level. It is not a conclusion reached in relation to the complainant or his associates in this case.

FLF v Children's Guardian

At a glance

Court

Decision date

Source

Judgment (39 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (17)

Cited By (2)