FRM v Commissioner of Police, NSW Police Force

Material before the Tribunal

1. For the Applicant, the following material was provided: 1. the Applicant's administrative review application dated 7 September 2022, 2. submissions (AS) filed on 23 November 2022, 3. affidavit of Rebecca Dunlop dated 22 November 2022, 4. report by Sarah Elas psychologist dated 23 May 2022, 5. letter to NSW Police GIPA Unit from Rebecca Dunlop Legal dated 19 July 2022, 6. 4-page email trail between Rebecca Dunlop and NSW Police GIPA Unit between 19 July and 2 August 2022, 7. Authorities for Release of Information signed by the Applicant's parents on 14 November 2022
2. For the Respondent, the following material was provided: 1. Submissions (RS) filed 9 November 2022, 2. A USB drive marked "confidential" filed 9 November 2022, 3. submissions in reply (RRS) filed 5 December 2022.

Oral evidence

1. No oral evidence was given at the Tribunal hearing which was conducted on 13 December 2022.

Oral submissions

1. Closing oral submissions were made by the Respondent during the hearing. However, before they could be completed, Ms Dunlop representing the Applicant, had to urgently leave the hearing to attend to another matter in court. She was content on rely on her written material. The Respondent's counsel, properly in my view, terminated his closing submissions which he said were almost complete, and the parties agreed that the Tribunal would proceed to a decision on the basis of the material before it at that point in time.

Confidential material

1. The Respondent provided to the Tribunal on a confidential basis, a USB drive containing the two body worn videos (BWV)
2. The confidential material was viewed and listened to by the Tribunal Member and was not provided to the Applicant, or to the public.
3. Section 107(1) of the GIPA Act (extracted below) requires the Tribunal to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure: 107 Procedure for dealing with public interest considerations 1. In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure."
4. To give effect to the prohibition in s 107(1) of the Act, the Tribunal made an order under s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 NSW that the confidential material, must not be disclosed to the Applicant, or the public. Section 64(1)(d) is set out below: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - … (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings."

Issue

1. The Applicant's written submissions, at paragraph 2, state "The main issue for determination relates to the decision made by the Commissioner to provide "view only" access to the BWV of the Applicant's arrest rather than providing "copy access"".
2. The Respondents written submissions, at paragraph 2, state "the dispute between the parties relates to part of the Respondent's decision only, being a decision to provide view only access to certain body worn videos."
3. Accordingly, there is one issue for determination: 1. Whether there is an overriding public interest against providing "copy access" to the body-worn video rather than "view only access".

Relevant Legislation

1. Section 3 of the GIPA Act states that the object of the Act is to open government information to the public and: … (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 9 of the GIPA Act confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
4. Section 12 of the GIPA Act provides for public interest considerations in favour of disclosure: 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. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (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. Sections 13 and 14 of the GIPA Act, relevantly provide: 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. 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 purpose of determining whether there is an overriding public interest against disclosure of government information. … Table … 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 or a health privacy principle under the Health Records and Information Privacy Act 2002, … 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. …
5. Section 15 of the GIPA Act, provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information: A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their 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 55 of the GIPA Act 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) An 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. (5) An agency may, as a precondition to providing access to information to an Applicant, require the Applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the Applicant to take reasonable steps to provide proof of his or her identity. (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. Note : An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
7. Section 72(1) of the GIPA Act, provides that access to information may be provided in a number of ways, including by providing an opportunity to inspect a record containing information (section 72(1)(a)); providing a copy of the information (section 72(1)(b)) and providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned) (section 72(1)(c)). Section 72(2) provides that access to information must be provided in the form requested by an application, except in certain prescribed circumstances, including where: '(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the Applicant.'
8. Section 73 of the GIPA Act, provides that access to information provided under the GIPA Act is unconditional. In particular, s73(1) provides that: An agency is not entitled to impose any condition on the use or disclosure of information when the agency provides access to the information in response to an access application.
9. Section 80 of the GIPA Act sets out those decisions which are 'reviewable decisions' under Part 5. Relevantly, 'a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the Applicant)' is a reviewable decision pursuant to section 80(i).
10. A person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for review of that decision (section 100 GIPA Act). The onus on the agency is to establish that its decision is justified (section 105(1) of the GIPA Act).
11. Section 63 of the Administrative Decisions Review Act 1997 provides: 63 Determination of administrative review by Tribunal (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.
12. Section 2A of the Surveillance Devices Act 2007 (NSW) (the SD Act) includes, in a description of the objects of the Act, a provision to ensure the privacy of individuals is not unnecessarily impinged upon in connection with the use of surveillance devices: 2A Objects of Act The objects of this Act are - (a) to provide law enforcement agencies with a comprehensive framework for the use of surveillance devices in criminal investigations, and (b) to enable law enforcement agencies to covertly gather evidence for the purposes of criminal prosecutions, and (c) to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices.
13. The term "surveillance device" is defined in s 4 of the SD Act to include an optical surveillance device (such as a body-worn video): surveillance device means - (a) a data surveillance device, a listening device, an optical surveillance device or a tracking device, or (b) a device that is a combination of any 2 or more of the devices referred to in paragraph (a), or (c) a device of a kind prescribed by the regulations.
14. Section 50A of the SD Act sets out the circumstances in which a police officer uses body-worn video: 50A Police use of body-worn video (1) The use of body-worn video by a police officer is in accordance with this section if - (a) the police officer is acting in the execution of his or her duty, and (b) the use of body-worn video is overt, and (c) if the police officer is recording a private conversation, the police officer is in uniform or has provided evidence that he or she is a police officer to each party to the private conversation. (2) Without limiting the ways in which the use of body-worn video may be overt for the purposes of subsection (1)(b), the use of body-worn video is overt once the police officer informs the person who is to be recorded of the use of body-worn video by the police officer. (3) The use of body-worn video by a police officer is also in accordance with this section if - (a) it is inadvertent or unexpected, or (b) it is incidental to the use of body-worn video by the police officer in the circumstances set out in subsection (1).
15. Section 39(d) of the SD Act relevantly defines "protected information" as "any information obtained from the use, in accordance with section 50A, of body-worn video by a police officer", and s 40(1) of that Act creates an offence with respect to "protected information": Prohibition on use, communication or publication of protected information (1) A person is guilty of an offence if - (a) the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and (b) the person knows that, or is reckless as to whether, the information is protected information, and (c) the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section. Maximum penalty - Imprisonment for 2 years.
16. Section 40(2) of the SD Act creates an aggravated form of the offence in s 40(1) for which the maximum penalty is imprisonment for seven years.
17. Exceptions to the offence provisions appear in ss 40(3)-(9) of the SD Act and relevant regulations in the Surveillance Devices Regulation 2014 (the SD Regulation). The Applicant expressly relies upon s 40(4)(d): (4) Protected information may be used, published or communicated if it is necessary to do so for any of the following purposes - … (d) an investigation of a complaint against, or the conduct of, a public officer within the meaning of this Act or a public officer within the meaning of a corresponding law and the oversight of such an investigation.
18. And also the SD Regulation: 5 Police officers' use of body-worn video - additional purposes for using information obtained - the Act, s 40 (1) For the Act, section 40(4A)(c), the information obtained from the use of body-worn video by a police officer may also be used for the following purposes - … (c) proceedings of a court or Tribunal in which the NSW Police Force or the State is a party or in which a member of the NSW Police Force is called as a witness, (d) investigations of a complaint against, or the conduct of, a member of the NSW Police Force

Applicant's submissions

1. The Applicant relies on the affidavit of his solicitor, Rebecca Dunlop, which states, in part, "I received a referral from a solicitor at the Children's Legal Service, Legal Aid NSW, in respect of a potential claim for an unlawful arrest of [JR]. I made an application for access to all body worn video... At the time of making the application I selected "civil litigation" as the purpose of the application and requested a copy of each document sought…I was permitted to attend Narellan police station to view the footage...I sent an email to the Information Review officer within the NSW police GIPA unit explaining the practical difficulties I would have in attending Narellan police station...I made arrangements to attend Surry Hills police station to view the video. My client expressed significant concerns about accompanying me to the police station for the viewing of the footage. I formed the view that given his age, his significant vulnerabilities that it would be an unnecessarily stressful situation, particularly given the nature of his claim is that he may have been unlawfully detained by police. It is also, in my experience, not possible to watch police body worn video at a police station with any privacy or in a manner that would allow privileged instructions to be taken...
2. "I arrived at Surry Hills police station at about 1:00 PM…I was then taken to a small interview room at the front of the police station for the purpose of the viewing…After further delays associated with the officer finding the body worn video file on the police system, I was permitted to watch one video file on a desktop computer... The police officer sat next to me, in close proximity and viewed and commented on the footage as it was playing. I was unable to make notes of the footage. If my client did attend he would have been required to watch the footage in the room with me and the police officer. The police officer made me feel rushed and I felt as though I was inconveniencing him. I did not feel I could review the entire clip. I did not feel like I could take my time making notes or that I could rewind portions of the footage that I would have liked to see again. It was clear to me given the number of other police officers in attendance at my client's home, that more than one body worn video clip existed. I made an application for internal review although I was once again denied copy access to the body worn video, it was revealed that there was at least one other clip that I had not been shown.
3. "It is apparent that NSW police are not complying with their obligations under the GIPA legislation and appear to be making it deliberately difficult for legal representatives investigating police misconduct to properly access body worn video capturing the arrests and interactions between police and their clients."
4. The Applicant submits, at paragraph 8, "despite his age, police approached JR in his bedroom and questioned him in the absence of a support person and in contravention of section 13 of Children (Criminal Proceedings) Act 1987. The Applicant submits [at 15], "The arrest of JR at the Campbelltown hospital and subsequent detention of him at a police station was prime facie unlawful. Not only was the arrest in breach of section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 and Section 8 Children (Criminal Proceedings) Act 1987, the arrest was also in breach of decades of well-established case law that the arrest of a juvenile is a measure of last resort. The arrest was also in breach of the High Court decision in New South Wales v Robinson [2019] HCA 46 which makes clear that an arrest must be for the purpose of commencing criminal proceedings (i.e., the laying of a criminal charge) and not for investigation".
5. The Applicant submits [at 25] "The Applicant is investigating a complaint against the conduct of police in respect of his unlawful arrest. The Applicant relies on the exception in section 40(4)(d)" [of the Surveillance Devices Act 2007]…while it is accepted by the Applicant that the secrecy provisions apply, the operation of reliance on these provisions is only one factor in the balancing exercise... In the absence of a conclusive presumption to an overriding public interest against disclosure, it is submitted that the weight to be given to section 40(1) of the SD Act should not be significant…The Applicant submits that there is no requirement to establish a "special" interest… While section 40 of the SD Act is a relevant consideration, it is important to note that the use of the footage can be limited by the Tribunal in any final order and including that it is not to be disclosed except for the purposes of legal advice and subsequent proceedings. This provides a power to consider and give effect to the purpose of section 40 of the SD Act while maintaining disclosure of the body worn video."
6. The Applicant has provided signed statements by his parents that they consent to the disclosure of their personal information as contained in the videos. The Applicant submits the disclosure of the information sought is likely to enhance police accountability and transparency and inform the community about the way police act toward vulnerable members of the community. The Applicant submits he was never charged with a criminal offence and that there is evidence before the Tribunal that disclosure of the body worn video could reasonably be expected to reveal that the NSW police have engaged in misconduct by improperly or unlawfully arresting a vulnerable child."
7. The AS at paragraph 24 accepts "the BWV was obtained in accordance with s 50A of the SDA, the BWV is "protected information" within the meaning of s 39 of the SDA, s 40 provides a prohibition on the use, communication or publication of the BWV, punishable by imprisonment for a period of 2 years or 7 years imprisonment with respect to an aggravated offence, sections 40(1) and 40(2) are secrecy provisions for the purposes of cl 6 of the Table.
8. The AS at 25 and 26 state, in part, "The Applicant is investigating a complaint against the conduct of police in respect of his unlawful arrest. The Applicant relies on the exception in s 40(4)(d)…the relevant officers within the NSW police force maybe an intended party to civil litigation in this matter in the future, and subject to a complaint to the Law Enforcement Conduct Commission. The Applicant relies on clause 5(1)(c)-(d) of the Surveillance Devices Regulation 2022."

Respondent' submissions

1. The Respondent submits, [RRS at 3.a.] "Section 13 of Children (Criminal Proceedings) Act 1987 makes certain statements given by children inadmissible unless a support person is present, subject to exceptions. It is not possible to contravene section 13, since it does not proscribe any conduct".
2. The Respondent submits [RRS 3.b.] "to the extent that the Applicant suggests any impropriety on the part of the officers involved, it is not supported by the body worn video, which makes clear that the primary purpose of the interview with the Applicant was to establish a rapport with him in order to ask about his mental wellbeing. The discussion of the Applicant's offending was a brief part of his interactions with the officers. There was nothing untoward about taking the Applicant for a mental health assessment after he had made disclosures of self-harming behaviour and suicidal thoughts. That was a properly cautious exercise of the officers' powers."
3. The Respondent submits [3.d.], "s 99(1)(b)(ix) of the Law Enforcement (Powers and Responsibilities) Act 2002 on which the officers relied, permits arrest without warrant "because of the nature and seriousness of the offence". The Applicant was charged with common assault, an offence for which the maximum penalty prescribed by Parliament is 2 years imprisonment. It is able to be prosecuted on indictment. It is a serious offence, albeit that in the circumstances of this case the Applicant's offending might be thought to be at the lower end of objective seriousness of common assault offences. There is no evidence of the immediate circumstances of the Applicant's arrest. Nor is there evidence of the state of mind of the arresting officer, upon which the lawfulness of the arrest depends. It is not possible to say, even on a prima facie basis, that the arrest was unlawful."
4. The Respondent submits [3.e.], "s 8 of the Children (Criminal Proceedings) Act 1987 requires that criminal proceedings against children be commenced by court attendance notice, subject to exceptions. Its relevance to this matter is not apparent; cf. AS at 15". And, "contrary to the Applicant's assertion, a charge was laid against the Applicant which was then dealt with by way of caution. There is no basis to infer that the Applicant was arrested for the purposes of investigation, since it was clear by the time of the arrest that the Applicant had committed the offence charged, and because officers did not interview him while he was in custody on the 7th to the 8th of March 2022 (he was interviewed the following morning, on 9 March 2022, when he attended the police station for that purpose)."
5. The Respondent submits, "determining the lawfulness or otherwise of the Applicant's arrest is not part of the Tribunal's functions in these proceedings. What is relevant, in the balancing exercise under the GIPA Act, is whether the body worn video "may reveal" matters going to the lawfulness of the Applicant's arrest. The Tribunal would find, as a matter of fact, that the body worn video cannot bear upon the lawfulness of the arrest, since it does not show the arrest or events immediately preceding the arrest. In that respect, it is distinguishable from Morgan, where the footage sought included footage of the arrest itself."

Consideration and Findings

1. The reference in the preceding paragraph to Morgan, is to Morgan v Commissioner of Police [2021] NSWCATAD 173. It is one of several Tribunal decisions which have considered access to body worn video and the operation of s 40 of the SD Act. Other such decisions include Wojciechowska v Commissioner of Police [2021] NSWCATAD 173, Cheung v Commissioner of Police [2019] NSWCATAD 249, and FDY v Commissioner of Police, NSW Police Force [2022] NSWCATAP 367. In Morgan and Wojciechowska, the Tribunal granted access to a copy of the body worn video. In Cheung and in FDY (at first instance and at the Appeal Panel), copy access to the body worn video was refused. Those decisions turned on their particular sets of factual circumstances. In each matter, the Tribunal undertook the balancing process required for the GIPA Act s 13 public interest test.
2. That balancing process was described in Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [19] as follows: "Accordingly, in all cases other than those falling under the terms of Sch 1, the public test under the GIPA Act involves the following: (a) identifying the public interest in favour of disclosure; (b) identifying the public interest against disclosure; and (c) determine where the balance lies."
3. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 the Tribunal said at [94]: "Ultimately, the balancing of these competing interests is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation."
4. In FDY v Commissioner of Police [2021] NSWCATAD 285, the Tribunal said, at [115]: "The balancing exercise requires the Tribunal to make a broad value judgment".
5. However, as noted in Page v Commissioner of Police [2020] NSWCATAD 163 at [115]: "…that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104]."
6. The Respondent's internal review decision relied on the following considerations in the Table to s 14: cls. 3(a), 3(b) and 6. However, the RRS, at [17] stated: "Given the evidence in Ms Dunlop's affidavit, the Respondent accepts that the consideration in clause 3(b) of the Table does not arise. However, the consideration in clause 3(a), which does not depend on the absence of consent, is still a relevant matter. Given the consents of the individuals concerned, it would not be a matter to which particular weight would attach."
7. I will consider each clause but first turn to the Applicant's submission at [32] that "…it is important to note that the use of the footage can be limited by the Tribunal in any final order, including that it is not to be disclosed except for the purposes of legal advice and subsequent proceedings". In fact, GIPA Act s 73 provides "An agency is not entitled to impose any condition on the use or disclosure of information when the agency provides access to the information in response to an access application." GIPA s 15(e) provides "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". The effect of s 73(1) is that the Tribunal is prevented from placing such a limitation on the disclosure of the BWV and its release would be "to the world", EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94 at [59], Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 at [22
8. Before considering the public interest test, it is appropriate to address the Applicant's reliance upon "the exception in s 40(4)(d)", at AS [25]. The Applicant accepts that the BWV was obtained in accordance with s 50A of the SDA, is "protected information" within the meaning of s 39 of the SDA, that s 40 provides a punishment of imprisonment and that sections 40(1) and (2) are "secrecy provisions" for the purposes of cl 6 the Table. The claimed exception in s 40(4)(d) allows for disclosure of "protected information" for the purpose of: "an investigation of a complaint against, or the conduct of, a public officer within the meaning of this Act or a public officer within the meaning of a corresponding law and the oversight of such an investigation."
9. In this matter, it is the Applicant who is conducting the investigation, AS [25]. There is no official police, or other law enforcement, or judicial proceedings or judicial inquiry underway. The Applicant refers to the possibility of a complaint being made to the Law Enforcement Conduct Commission and / or possible civil litigation against police officers but there is no evidence of any such proceedings or complaint. The Respondent submits, at RRS [12]: "The Applicant's construction leads to the absurd outcome that a member of the public, by deciding to investigate a police officer, or merely referring to the possibility of a complaint can circumvent the prohibition on disclosure in section 40 and obtain access to BWV or other protected information. Indeed, there is no apparent reason why, on the Applicant's reading, the access would be limited to investigations of conduct relating to themselves. That construction would substantially undermine the purpose of section 40."
10. As to the purpose of s 40, it is well established that "the Surveillance Devices Act and Regulation establish a strict regime for the collection, use and disclosure of information gathered through the use of the surveillance device, including body-worn video footage" Cheung at [55], FDY Appeal panel at [25]. In Voitenko t/as Access Party Hire v Zürich Australian Insurance Limited [2016] NSWSC 324 Hall J observed at [99]: The fact that a breach of s 40… is punishable by a term of imprisonment with the above maximum penalties underscores the legislature's intention to secure protected information by the imposition of a substantial punishment in the event of a transgression.
11. In the context of such a strict regime and noting the other exceptions specified in s 40, I accept the Respondent's submission that "this demonstrates an intention to strictly control protected information and, in general, maintain it in the hands of official bodies for public purposes. As explained in Voitenko: at [87] the provisions of the SD Act…establish important prohibitions upon the use of recordings or the product produced by the use of surveillance devices, in particular upon the use of protected information as defined. These inter alia, seek to limit the use of such information to the sphere of law enforcement investigations and for use in criminal proceedings in the event of a criminal prosecution(s)". In these circumstances, I do not accept that the Applicant's private investigation can fall within the exception provided by SDA s 40(4)(d). For the same reasons, I do not accept that SD Regulation 5(1)(c)-(d) can be relied upon, in these circumstances, to defeat the strict regime prohibiting the disclosure of protected information.

BWV factual circumstances

1. It is helpful to review the facts surrounding the creation of the BWV in approaching the public interest balancing exercise. On the night of 7 March 2022, the Applicant's mother rang the police expressing concerns for her son's welfare. Around 9.30pm, two attending police activated their BWV cameras and spoke separately to the Applicant and his parents. A third-party friend of the family made telephone contact during this period but was not identified by name or image in the BWV. The Applicant was 17 years old at this time. He had a documented history of mental health issues and self-harm. It was reported to the police, by both parents and the Applicant, that he had acted violently towards his father and he talked of harming himself. He was taken to hospital and after being assessed by a psychologist and released, he was arrested and taken to the police station at 11.37pm. He was released about an hour later, with a view to a youth caution being given. He returned to the police station the next morning to be interviewed.
2. I have viewed and listened to the BWV. One video lasts for 17 minutes and 34 seconds, the other for 9 minutes and 20 seconds. Both BWV commence at 9.36pm and conclude before 10pm. There is no video of the arrest which took place approximately an hour and a half later. On the face of the BWV the police officers were calm, polite, empathetic, and acted with obvious concern for the welfare of the Applicant. Their questioning was directed towards establishing what had happened and ascertaining the history, current state of mind and well-being of the Applicant. It is apparent that the potential for self-harm and what action was necessary to prevent that, was their main pre-occupation. There is no evidence whatsoever about the subsequent arrest more than an hour later.

The meaning of "could reasonably be expected to" in the s 14 Table

1. Each of the public interest considerations (in this case those set out in clauses 1(d), 1(f), 2(b), 3(a), 3(b) and 6 in the s 14 Table) contains the introductory words "could reasonably be expected to have one or more of the following effects…". The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that decision, Bowen CJ and Beaumont J explained, at 190, that the words: "... 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 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."
2. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [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."

Meaning of "prejudice"

1. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60] the Tribunal accepted the submission of the Information Commissioner that: The word "prejudice" has been found in cases decided under FOl legislation to have its ordinary meaning: "to cause detriment or disadvantage" [Re: Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266] or to "impede or derogate from" [Sobh v Victoria Police (1994) 1 VR 41]. And found it equally applicable to GIPA Act matters.

Balancing the considerations

1. The Respondent's internal review decision relied upon both cl 3(a) and 3(b) but this was effectively abandoned in RRS, at [17] and I agree that, at least as far as the personal information consideration is concerned, given the consent of the Applicant's parents to disclosure it is not "a matter to which particular weight would attach".
2. However, in Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80, the Tribunal held "the test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in the future, but whether the agency would be able to obtain such information in future".
3. In this regard, the Respondent also relies on cls 1(d), 1(f) and 2(b), to deny "copy access" to the BWV, on the basis of: prejudice the supply to an agency of confidential information, prejudice the effective exercise of an agency's functions and prejudice the enforcement of the law. The Respondent referred to Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 at [69] where Smart AJ 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…"
4. The Applicant's parents have given their consent to release of their personal information. However, the broader issue of public confidence in police information handling and public willingness to report and provide personal information, remains to be considered. As stated in Camilleri, the test is "whether the agency would be able to obtain such information in future". I consider that disclosure of copies of BWV to the "world at large" is not conducive to that outcome. I accept the evidence of the Respondent, at [RS64], "that based on the staffing of [the Police Media Unit] and the workload they have to support…they similarly have no capacity" to edit the personal information from the BWV. Furthermore, GIPA Act s 73 prevents the Tribunal from placing limits on the disclosure as sought by the Applicant. In these circumstances, the maintenance of public confidence in the protection of personal information by police is of such significance as to outweigh the individual considerations in this matter.
5. I turn now to consideration of s 14 Table cl 6 and the operation of the SD Act prohibitions on disclosure of "protected information". I have already found the claimed exception in SDA s 40(4)(d) is not applicable because the Applicant is conducting a private investigation and there is no official inquiry underway. In Cheung, the Tribunal found at [55] that "considerable weight should be given to this public interest consideration against disclosure". Morgan, to which the Applicant refers and in which "copy access" was provided, involved the arrest of an indigenous man following a traffic stop. The Tribunal found at [79]: "I find that Mr Morgan's personal factors weigh in favour of disclosure (s 55 of the GIPA act). He is a proud aboriginal man who seeks to inform the public about matters concerning his arrest in the broader issues of the policing of indigenous Australians. His motives in my view add significant weight for granting the access application as conceded by the Respondent, disclosure of the information sought by Mr Morgan will inform the public about the operation of the police and their policies and practices in dealing with indigenous Australians."
6. In this matter the s 55 personal factors include, that the Applicant was a minor at the time, was in his family home, was spoken to by the police without a support person present, has a history of mental health issues, that attending a police station for "view access" is difficult and stressful for him, that it is problematic for him to give instructions to his solicitor in police presence. It is submitted that "copy access" would facilitate the accountability of NSW Police and would enhance public understanding of police treatment of minor persons with mental health issues.
7. In FDY, the Appeal Panel, at [61], distinguished Morgan and Wojciechowska, on the basis that, "the Applicant in each case had established a special interest in accessing the footage and such consideration was relevant in assessing the public interest criteria in favour of disclosure. No such consideration arose in Cheung, nor has the Applicant in these proceedings established such special interest which could outweigh the secrecy provisions contained in cl 6 of the s 14 Table".
8. The Applicant submits, AS at [30]," there is no requirement to establish a "special" interest". I agree and I do not understand the decision in FDY to be stipulating such a requirement for a special interest. The Appeal Panel, as the Respondent submits, at [RRS9], "simply observed that the Applicant in Morgan and Wojciechowska had been able to demonstrate a significant consideration…which was sufficient to overcome the "considerable weight" which is ordinarily to be applied to s 40 of the SD Act, and that no analogous consideration arose in Cheung or FDY's case". I agree with that submission.
9. On the evidence of the BWV, I am satisfied the police officers acted sensitively and appropriately in their dealings with the Applicant and his family. There is nothing in these circumstances analogous to the significant considerations that were present in Morgan. There is no evidence to suggest that police deal improperly or unfairly with a particular group of persons such as minors and those experiencing mental health issues. There is no relevant evidence about the subsequent arrest of the Applicant almost 2 hours later.
10. I accept there are several public interest considerations in favour of disclosure including, the statutory presumption in favour of disclosure, the disclosure of information can reasonably be expected to promote accountability of NSW Police, the information requested contains personal information of the Applicant and his family, there is a general right for the public to have access to information about them held by government agencies and release of the information would enhance public understanding of NSW Police functions.
11. However, in performing the balancing exercise for the public interest test, I find that there is nothing in the evidence before me sufficient to overcome the "considerable weight" which is ordinarily to be applied to s 40 of the SD Act. I find that the public interest considerations against disclosure, and in particular, the SD Act prohibition against disclosure must prevail.
12. Order (1) The Tribunal varies the Respondent's decision of 12 July 2022 as amended by the decision of 16 August 2022 to allow disclosure to the Applicant of two Event Reports as redacted at Tabs 6 and 7 of the Respondent's Bundle of documents. Otherwise, the 12 July 2022 decision as amended by the decision of 16 August 2022 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: 20 January 2023