FZS v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-02-08

FDY v Commissioner of Police [2021] NSWCATAD 285 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Gabriel v Commissioner of Police [2020] NSWCATAD 51 Grey v The Queen [2001] HCA 65 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Kraus v Commissioner of Police [2020] NSWCATAD 152 Leech v Sydney Water Corporation [2010] NSWADT 298 Leydon v Commissioner of Police [2019] NSWCATAD 267 Mallard v The Queen [2005] HCA 68 Medlyn v Commissioner of Police [2020] NSWCATAD 125 Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 Miller v Director of Public Prosecutions [2012] NSWADT 38 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33 Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 479 Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 R v Lipton [2011] NSWCCA 247 Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127 RT v Commissioner of Police, NSW Police [2005] NSWADT 270 Sawyer v Commissioner of Police (NSW) [2018] NSWCATAD 61 Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241 Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107 Simring v Commissioner of Police [2009] NSWSC 270 Smith v NSW Police Force [2015] NSWCATAD 32 Taylor v Destination NSW [2017] NSWCATAD 272 Transport for NSW v Searle [2018] NSWCATAP 93 UC v Commissioner of Police, NSW Police [2005] NSWADT 272 Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324 Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 XZ v Commissioner of Police (NSW) [2009] NSWADTAP 2 YG & GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None Category: Principal judgment Parties: FZS (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Applicant (Self-Represented) Crown Solicitor (Respondent) File Number(s): 2023/00206781 Publication restriction: Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked "NOT FOR PUBLICATION", other than to the respondent (the Commissioner of Police, NSW Police Force) is prohibited.

Background

These proceedings concern a request (the GIPA request) that FZS (the applicant) made to the Commissioner of Police, NSW Police Force (the respondent), which was received on 22 November 2022, for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act). The GIPA request was in the following terms: I seek the following reports in relation to a surveillance Device Warrant NSW Police Force SD 15/0233. D/SC Derek Kennedy being the applicant & issued by the Honourable Michael Adams of the Supreme Court of NSW. Please note that on application to the supreme court of NSW, I was advised that the surveillance device warrant is not on file within the records section of the court. The surveillance warrant was issued on the 13 May 2015 and authorised the use of two listening devices on or about the body of [named individual], pursuant to the Surveillance Devices Act 2007 (NSW), various reports must be furnished to the eligible judge as reported within the Act at sections 44(1)(a) to (h); 44(2)(a) to (f); 44(4) and 44(5) including the Attorney General. If on file may I please seek these reports.
On 17 January 2023, the respondent decided to refuse to provide access to the information sought in the GIPA request under s 58(1)(d) of the GIPA Act on the basis that there was an overriding public interest against its disclosure.
The respondent stated that it conducted reasonable searches to locate the government information sought in the GIPA request. It also stated that under s 13 of the GIPA Act, it applied the Public Interest Test in order to identify considerations both in favour of and against disclosure of information and to determine whether the balance lies between them. The respondent stated, relevantly: Public interest considerations in favour of disclosure In accordance with section 12 of the GIPA Act, I have taken into account the following public interest considerations in favour of disclosure of the information: • The statutory presumption in favour of the disclosure of government information. • The general right of the public to have access to government information held by the agencies. The documents relate to yourself. Public interest considerations against disclosure When applying the public interest test, the only public interest considerations against disclosure that I can take into account are those set out in the table to Section 14 and Schedule 1 of the GIPA Act. I have considered that once released under GIPA conditions cannot be placed on the use of information. I have therefore placed a strong weight against the public interest in disclosing personal information, information which carries a conclusive presumption against release along with information which may lead to a breach of other legislation and may impact on the ability to NSW Police to undertake their duties. On balance, I decided that these factors outweigh the section 12 factors and there is an overriding public interest against disclosure. Section 14(1) of the GIPA Act states that 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. Schedule 1, clause 6 - Excluded information Clause 6 of Schedule 1 to the GIPA Act states that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, except where an agency has consented to the disclosure of the information. Clause 6 also states that before an agency decides to refuse access on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. Schedule 2 - Excluded information of particular agencies Schedule 2 of the GIPA Act states that information that relates to a function specified in this Schedule in relation to an agency specified in this schedule is excluded information of the agency. Further, section 43 prevents an access application from being made to an agency for excluded information of the agency. For the purposes of this decision clause 1 of schedule 2 applies, as the information you have applied for relates to the prosecution functions of the Office of the Director of Public Prosecutions (DPP) because the matter referred to in your application was part of the brief of evidence. Pursuant to Schedule 1 clause 6, the DPP has been consulted and it has not consented to the disclosure of excluded information. Section 14, clause 6 - Secrecy provisions Clause 6 provides that there is a public interest consideration against disclosure of information if disclosure of the information would reasonably be expected to constitute a contravention of a provision of an Act of Parliament that prohibits the disclosure of information. Section 40 of the Surveillance Devices Act 2007 (SDA) prohibits the use, communication, or publication of "protected information". Section 40 of the SDA is therefore a provision prohibiting disclosure of information for the purposes of clause 6. Breach of the section 40 prohibition is an offence punishable by up to seven years imprisonment, reflecting the seriousness with which unauthorised disclosure of body worn video is viewed by Parliament. Clause 1(f) of the Section 14 Table provides that there is a public interest consideration against the disclosure of information if disclosure of the information could reasonably be expected to prejudice the exercise of an agency's functions. Clause 2(b) of the Section 14 Table provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. Therefore, the information must not be released into the community to ensure its continuing value for law enforcement. I have therefore given very strong weight to clauses 1(f) and 2(b). The information in the Schedule of Documents, redacted/withheld under clause 3(g), relates to a young people under 18 years of age at that time, who came into contact with the police, and/or were charged with an offence. The NSWPF , the GIPA Act and other legislation place a particular importance on protecting the best interests of children, Laws dealing with juvenile offenders have taken the view that to assist young people to return to life outside the criminal justice system, the protection of their identities and any information about them is required. Further, a young person who commits an offence has the right to not have their actions follow them for the rest of their life. Thus, releasing the name of the offender/s, or information about their offence, would not be in their best interests, and I have given strong weight to clause 3(g). In regard to a copy of the recorded conversation you have requested, I have decided under s 59(1)(d) of the GIPA Act an agency can decide that the information is already available to an applicant if the information is available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant's possession. I am of this belief as you were provided a copy of the recording at your previous court hearing. Further to s 59(1)(d) of the GIPA Act, I refuse to provide the information in the form you have requested pursuant to s 72(2)(d) as there is an overriding public interest against disclosure of the information in the way requested by you. Providing a copy of the recording under GIPA would not allow any conditions to be placed on the use of the information and would potentially breach the privacy of the other party and would not be in the interest of a child thus giving weight against the public interest pursuant to clause 3(a), 3(b) and 3(g) of section 14 of the GIPA Act. In regard to your question at point 9 of your application, the agency is not required to answer questions in response to a GIPA request…
On 8 February 2023, the respondent received an application for internal review from the applicant.
On 10 May 2023, the respondent issued an Internal Review decision and again decided to refuse access to all of the information sought in the GIPA request on the basis that there was an overriding public interest against its disclosure.

Application for administrative review

On 28 June 2023, the Tribunal received the current application for administrative review, which raised the following grounds: 1. Take into account section 12 of the GIPA Act. 2. Possible Police conflict of interest not to disclose possible Police misconduct or corruption. 3. Rely on 13.2 Duty of Disclosure as reported within the Prosecution Guidelines March 2021. 4.a. the relevant sections in Regina v Richard Lipton [2011] NSWCCA 247 & the following caselaw below: 4.b. Gray v R (2001) 184 ALR 593; HCA 65 4.c. Mallard v R (2005) 224 CLR 125; [2005] HCA 68. 5.a. R 29.5 of the Legal Profession Uniform Law & Acts below: 5.b. Director of Public Prosecutions Act 1986 5.c. Criminal Procedures Act 1986 s 137, s 142 Please note that the Warrant Information was not disclosed in the trial proceedings by NSW Police or the Trial Prosecutor. 6. Findings of Police Corruption as reported in the Final Report, Volume II: Reform within the Royal Commission into NSW Police Service. 7. Evidence Act 1995 at section 138… Illegally obtained evidence. 8. NSW Police breached Part 2.5 of the Telecommunications (Interception & Access) Act 1979. 9. NSW Police used a listening device under the Surveillance Devices Act 2007 to listen & record a telecommunication conversation is contrary to the above Act. 10. Requested with Infolink, the Attorney General & NSW Commissioner of Police records, to verify if they exist or approved by these persons. Infolink records show no records of these persons as per Infolink Schedule of Documents, including the record in agency. Evidence that granting process was not actioned by Campbelltown Detective in 2015, namely Supreme Court NSW state no records on Court files, raises suspicion of the Police records may be a false instrument. Please note that only local records exist, however the Act requires relevant custodians as indicated must keep records as per the Surveillance Devices Act 2007. 11. Campbelltown Superintendent reluctant to make any investigation, including a 7 month wait for a reply. It may assume that the 7 month wait is due to my NSW Police Infolink Disclosures. 12. Lack of trust by the Community on Police investigating Police. 13. Protected information can have sensitive information blacked out as my intentions is to seek fair justice if corruption does exist. 14. Re-training NSW Police on correct procedures in phone-tapping a conversation. If disclosure cannot be made available, may I kindly seek that if the Court could verify that the Surveillance Warrant is lawful & all of the custodians have received the required documents in their records.
The applicant lodged a bundle of documents in support of the application, including the original decision, the internal review decision, and the following documents: (1) Letter from Campbelltown Police in response to his letter to the respondent; (2) Request to the respondent, the Attorney-General & the Surveillance Devices Commissioner; and (3) Letter from the Duty Registrar, Supreme Court of NSW received 15 August 2022.

Procedural matters

The matter came before Senior Member Higgins for a directions hearing on 17 July 2023. However, there was no appearance by the applicant and the Senior Member requested to Registry to make enquiries to ascertain whether the applicant remained an inmate at the same Correctional Centre. She adjourned the matter for a further case conference on 7 August 2023.
Senior Member Montgomery conducted a further case conference on 7 August 2023. However, the applicant again failed to attend. The Senior Member instructed the Registry to write to the Commissioner for Corrective Services and seek an explanation for the applicant's non-attendance. He adjourned the matter for a further case conference on 4 September 2023.
On 4 September 2023, Senior Member Montgomery conducted a case conference at which the applicant appeared in person (by AVL) and Ms Gallego appeared for the respondent. He made the following orders: 1. On or before 22 September 2023, the Commissioner of Police, NSW Police Force is to give to the Tribunal and all other parties the following material: an application for dismissal of the proceedings and any material in support of the application for dismissal. 2. On or before 23 October 2023, (the applicant) is to give to the Tribunal and all other parties all material in response to the application for dismissal. 3. On or before 3 November 2023, the Commissioner of Police, NSW Police Force is to give to the Tribunal and all other parties the following material: all evidence in reply, submissions and a summary of legal arguments. 4. The Information Commissioner is to give to the Tribunal and all other parties the following material: submissions on before 3 November 2023. 5. Any response to the Information Commissioner's submissions from the Commissioner of Police, NSW Police Force or (the applicant) is to be given to all other parties on or before 17 November 2023. 6. The Commissioner of Police, NSW Police Force is to give to the Tribunal the following material on a confidential basis by 17 November 2023: 1. Any documents considered to be the subject of a conclusive overriding public interest against disclosure in a sealed envelope marked 'conclusive presumption documents'. 2. Any documents considered to be subject to a non-conclusive overriding public interest against disclosure in a sealed envelope marked 'non-disclosure documents'.
The Senior Member listed the matter for a further case conference on 17 November 2023, to ensure that the matter would be ready for an 'on the papers' determination of the respondent's application for dismissal after 17 November 2023.
However, on 21 September 2023, Principal Member Simon listed the matter for directions on 3 October 2023.
On 3 October 2023, Senior Member Ransome conducted a directions hearing at which the applicant appeared in person (by AVL), Ms Mattes appeared for the respondent and Ms Higgins appeared for the Information and Privacy Commissioner (IPC). The Senior Member: (1) vacated the orders made on 4 September 2023; (2) made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), which prohibited the publication or broadcast of the name of the applicant; (3) ordered the respondent to file and serve all evidence including statements, documents and submissions by 17 October 2023; (4) ordered the applicant to file and serve all evidence including statements, documents and submissions by 28 November 2023; (5) ordered the respondent to file and serve all evidence in reply and submissions by 12 December 2023; (6) ordered the IPC to file and serve any submissions by 19 December 2023; (7) ordered that any response to the IPC's submissions are to be filed and served by 16 January 2024; (8) ordered the respondent to lodge the following documents with the Tribunal on a confidential basis by 16 January 2024: (a) documents considered to be subject to a conclusive overriding public interest against disclosure; and (b) documents considered to be subject to a non-conclusive overriding public interest against disclosure; (9) ordered the parties to advise the Tribunal by 16 January 2024 whether the application could be dealt with on the papers; and (1) listed the matter for hearing on 8 February 2024 and granted the applicant leave to appear at the hearing by AVL.
On 16 November 2023 and 7 December 2023, respectively, Principal Member Simon made orders extending times for compliance with the orders made on 3 October 2023 and she listed the matter for directions on 23 January 2024.
On 23 January 2024, Senior Member Ransome conducted a further directions hearing. The applicant did not appear, but Ms Mattes appeared for the respondent. The Senior Member noted that the IPC no longer wished to appear and she vacated the orders concerning the IPC. The hearing date was confirmed.

The hearing

The matter came before me for hearing on 8 February 2024. The applicant appeared in person (by AVL) and Ms Mattes appeared for the respondent.

Respondent's opening argument

Ms Mattes stated that the decision under review in these proceedings is the respondent's internal review decision dated 10 May 2023. The applicant did not dispute this.
Ms Mattes stated that the applicant sought access to information that the respondent obtained under a Surveillance Device Warrant (SDW), namely: 1. SDW - SD 15/0233; 2. Report in accordance with s 44(1) of the SDA - SD 15/0233; 3. Affidavit of Detective Senior Constable Derek Kennedy; and 4. Sound recordings obtained under SD 15/0233.
The decision under review found that each of these records was excluded information of the Office of the Director of Public Prosecutions (ODPP) and that there was a conclusive presumption that they are subject to an overriding public interest against disclosure.
However, in these proceedings, the respondent argued that there is a conclusive presumption in relation to items (1) and (4) above, pursuant to s 14(1) and Sch 1 cl 6 of the GIPA Act, and that there is an overriding public interest against disclosure of items (3) and (4), operation of the public interest test.
Ms Mattes confirmed that items (1), (2) and (3) had been lodged with the Tribunal on a confidential basis, but item (4) had not yet been lodged. The Tribunal directed the respondent to lodge a copy of item (4) on a confidential basis as soon as possible and Ms Mattes undertook to do so.

Applicant's opening statement

The applicant did not make an opening statement, but instead told the Tribunal that he relied upon his written submissions (x 2) and the documents that were attached to them.
It was necessary to peruse these documents in order to ascertain the issues in dispute and I ascertained that the applicant disputed the validity of the SDW. He alleged that this was not produced to the District Court during his criminal trial and that the respondent therefore breached the law by recording the relevant telephone calls.
The Tribunal ruled that it does not have jurisdiction to determine the validity of a SDW under the SDA and it does not have power to determine whether the respondent breached the law in recording the relevant telephone calls. Its power is restricted to conducting an administrative review of the reviewable decision under the GIPA Act.

Respondent's evidence

The respondent relied upon an affidavit of Detective Inspector Karl Leis (D/I Leis) dated 16 October 2023. This was admitted into evidence and marked as Ex A.
D/I Leis deposed that he is the Manager of the respondent's Child Protection Registry and the Extended Supervision Order Investigation Team. He has been a police officer for 24 years and has predominantly undertaken complex criminal investigations for serious or organised crime, including but not limited to homicides, armed robberies, public place shootings and both adult and child sex offences. This includes extensive experience with complex covert investigations, applying for search warrants, telephone intercepts and surveillance devices. He has managed criminal and coronial investigations into high profile cases, including the 2019 inquest into the deaths of multiple young adults who overdosed on illicit drugs at dance music festivals. He has prepared briefs and given evidence on numerous occasions at Local, District, Supreme and Coroner's Court proceedings. He also has delegated authority from the respondent to undertake specific functions under the Child Protection (Offenders Registration) Act 2000 (the CP Act), such as approving or rejecting applications by registrable persons wanting to change their name with the Registry of Births, Deaths and Marriages.
The witness stated that in his current role, he oversees the strategic risk management and compliance of more than 5,000 registrable persons in NSW who are subject to reporting obligations under the CP Act. As the NSWPF representative, he sits on the National Child Protection Registry Advisory Group committee and he is currently involved in a working party which was recently formed to make submissions to NSW Cabinet on legislative amendments to the CP Act. Also, in conjunction with Corrective Services NSW (CSNSW), he oversees the strategic risk management and compliance of approximately 80 high risk offenders in NSW who are subject to the provisions of the Crimes (High Risk Offenders) Act 2006. The vast majority of high-risk offenders are child sex offenders, but also include persons who have previously served lengthy custodial sentences for violent offences including murder. From time to time, he acts as the NSWPF representative on the High Risk Offenders Assessment Committee, which is chaired by the Commissioner of CSNSW. He has also previously relieved in the role of Detective Superintendent as Commander of the NSW Police Force Sex Crimes Squad.
The witness stated that he considers that all of the information sought in the GIPA request is "protected information" for the purposes of the SDA, which prohibits the use, communication or publication of protected information, except in certain narrowly prescribed circumstances. He stated, relevantly: 16. I have considerable knowledge and experience of the process of applying for warrants under the SD Act, the use of surveillance devices as an investigative tool, and the management of information resulting from the use of such devices. I have gained this knowledge and experience both as an investigative officer and, more recently, in the oversight and review of applications for warrants for quality purposes. Applications for surveillance device warrants 17. The SD Act requires that an application for a surveillance device warrant be made by way of affidavit, which includes certain information, including the grounds on which the warrant is sought, the details of any alternative means of obtaining evidence or information; whether any attempts have been made to use an alternative means and the results of any such attempt; the details of any previous warrants or authorisations under the SD Act; details of who may be incidentally recorded by the device; and any information known to the applicant that might be adverse to the warrant application. 18. The investigating officer is responsible for preparing an application for a surveillance device warrant, liaising with the Covert Applications Unit ("CAU"). In order to meet the requirements I have referred to above, applications will usually include details of the complaint or allegation that has been made or conduct that is being investigated; an account of the avenues of inquiry that have been employed up until that time, and the outcome of those inquiries; and details of further investigative steps that are proposed to be employed in the future. 19. The CAU is responsible for presenting applications for surveillance devices to an eligible judge or magistrate. Any hearing for a warrant is conducted in a closed court with strict measures to preserve the confidentiality of the proceedings. 20. It is essential that applications for surveillance device warrants are maintained under the strictest conditions of confidentiality, with any disclosure strictly on a need-to-know basis, in order to satisfy the requirements of the SD Act and preserve the integrity of NSWPF investigations. Disclosure of information within an application would reveal police methodologies and investigative strategies; would undermine ongoing investigations; and would have the potential to put the lives and wellbeing of witnesses and officers at risk. 21. The SD Act also requires that certain information be included in any warrant that is issued under the Act, including the alleged relevant offence; the kind of surveillance device authorised to be used; and the authorised manner in which the device may be used. It is crucial that the confidentiality of warrants is maintained, particularly when the warrant is currently in force and remains on foot, so as to ensure that the investigation is not compromised. However, even if a warrant is no longer in force, disclosure of its terms has the potential to reveal covert evidence gathering strategies. 22. If an investigation results in charges being laid, and proceeding to prosecution, the prosecution brief of evidence should include copies of any warrants issued that have been used to gather evidence in the brief. The investigating officer for an indictable or summary offence has a duty of disclosure pursuant to section 15A of the Director of Public Prosecutions Act 1986. This requires a Disclosure Certificate to be served with the brief of evidence upon the DPP which acknowledges the investigating officer's obligations. A template example of a Disclosure Certificate is attached as an annexure to this Affidavit marked "A".
The witness stated that information that is gathered by the use of a surveillance device is also "protected information" for the purpose of the SDA and is required to be managed under the strictest conditions of confidentiality. Maintaining the confidentiality of this information is crucial to ensuring that investigations are not compromised. Surveillance devices are also a very intrusive investigative mechanism, as they may capture conversations and information that is entirely unrelated to the matters being investigated. The strict conditions for managing such information are necessary to minimise the intrusion on the affairs of those individuals whose information has been captured.
The witness stated that if a matter proceeds to prosecution, then information gathered via surveillance device may be included in the prosecution brief of evidence, in accordance with the prosecutorial disclosure obligations. However, even where information is included in the brief of evidence, there are often additional protections or measures taken to preserve the privacy of individuals involved, such as redaction of transcripts; use of pseudonyms; or making non-publication orders.
Where a SDW has been issued, s 44 of the SDA requires a report to be furnished to an eligible judge or magistrate, addressing matters including whether or not a device was used pursuant to the warrant; the type of device used; the name of any person whose private conversation or activity was recorded; the period during which the device was used; the particulars of the general use made or to be made of the evidence or information obtained; and particulars of any previous use of a device in connection with the relevant offence. A report under s 44 may, therefore, reveal lines of inquiry that have been undertaken; lines of inquiry still to be pursued; as well as details about going to technical capabilities and particulars of devices available to be deployed.
Usually, an investigation involving use of a surveillance device will be managed through NSWPF's E@gle system. Information is saved on E@gle as "products" and where the information relates to the issue of a surveillance device, or has been gathered by use of a surveillance device, it will be clearly marked and flagged within the system as surveillance device material, with a caveat drawing any user's attention to the restrictions on dealing with the information. Access to modify and/or read information stored in E@gle is restricted to police officers who are members of the investigation team, which includes the Officer in Charge (OIC) and the investigation supervisor. Products stored as "protected information" will require the police officer to select the appropriate category within the drop-down box, with options of Telecommunications (Interception & Access) Act 1979 (Cth), Surveillance Devices Act 2004 (Cth), SDA or the Crime Commission Act 2012 (NSW).
Section 41(1)(a) of the SDA requires that protected information be stored securely. Protected information held in relation to each surveillance device warrant, such as physical product arising from the use of a surveillance device, is stored securely in a lockable metal filing cabinet. The case officer or law enforcement officer is responsible for ensuring all protected information is stored in a secure location and cannot be viewed by persons who are not entitled to view it.
The case officer or law enforcement officer is responsible for ensuring appropriate details are entered in a Protected Information Register (PIR) in relation to the protected information and its movement, copying or supply, Entries must be made contemporaneously or as soon as practicable. Inspections are completed by a senior officer, to ensure the accountability and security of any information obtained from the use of a surveillance device. The ongoing management and security of protected information is also recorded on E@gle.i and the Command Management Framework (CMF), and subject to regular oversight and compliance measures to ensure the integrity and security of the devices is maintained.
The witness referred to the Affidavit of DSC Kennedy and stated that this was provided to the NSWPF in the course of an investigation into allegations of criminal conduct. The respondent heavily relies on members of the public coming forward to make complaints about criminal conduct, providing information about potential offences and risks to persons and property and engaging with officers in the course of investigations. Information may be provided by members of the public by way of "000" calls or calls to Crime-Stoppers; calls to, or attendance at, local police stations and police engagement with bystanders and potential witnesses. The readiness of members of the public to contact, and engage with, police officers is crucial to ensure a timely and effective response to incidents.
As a matter of both policy and practice, the NSWPF deals with information supplied by members of the public confidentially, with information being disclosed only where sanctioned by legislation or policy. It may be necessary to disclose information for the purpose of progressing an investigation, or in the course of a prosecution or other legal proceedings. Generally information supplied to NSWPF will not be disclosed unless there is a lawful reason to do so.
The legal and policy framework that NSWPF operates within emphasises the importance of maintaining the confidentiality of information. Regulation 76 of the Police Regulation 2015 requires that members of the NSWPF treat all information that comes into their knowledge in their official capacity as strictly confidential and that they are not to disclose confidential information without proper authority. The NSWPF Code of Conduct and Ethics also emphasises the importance of preserving the confidentiality of information. There are usually also important operational reasons for maintaining the confidentiality of information that has been supplied to NSWPF. Handling information confidentially is often necessary in order to preserve lines of investigation; protect the identity of informants; protect witnesses from reprisal and maintain the integrity of evidence.
The witness said that it is his experience that when a member of the public reports a matter to NSWPF, or provides information in connection with an investigation, they do so with an expectation and understanding that their information will be managed confidentially. It is also his experience that members of the public are often reluctant to report a matter to police, or to share information as part of an investigation, for fear of the repercussions of doing so. This is particularly the case when people are reporting allegations of sexual abuse and/or incidents that have occurred when they are, or were, minors. Victims of such offences are usually suffering significant trauma as a result of the offending behaviour and are imparting information that is highly sensitive and which can give rise to feelings of embarrassment and shame. It is critical in these cases that NSWPF can give assurances that their information will be treated confidentially as far as possible and that their privacy will be protected.
Where a charge of sexual assault proceeds to hearing, there are a number of measures that are required and/or may be employed to protect the privacy of victims and other witnesses. For example, witnesses may be permitted to appear by way of audio-visual link or from another location; witnesses may be permitted to use a pseudonym or assumed identity; and there are restrictions on the publication of names or identifying information, including the identity of registered sources. There are also statutory provisions relating to the use of evidence obtained from children for use in criminal trials.
The witness expressed his view that if the NSWPF did not preserve the confidentiality of information supplied by members of the public, this would be contrary to both legal and policy frameworks, as well as to community expectations. Disclosure of confidential information would be perceived to be a major breach of trust, both by the individuals who supplied the information, and by the community. If police officers were unable to give meaningful assurances that the confidentiality of information supplied would be maintained, people would be very reluctant to report matters to police or cooperate in police investigations.
The witness also stated that the Affidavit of DSC Kennedy and the s 44 report contain information relating to police methodology and investigative strategies. Disclosing that information has the potential to compromise the integrity of current and future criminal investigations undertaken by law enforcement agencies, including the NSWPF. This may, for example, involve divulging information that can be used to draw an inference as to covert methodology, including how, when or where surveillance devices are installed, or sensitive information that relates to the types of surveillance devices and their technical capabilities. Disclosure of that information may allow persons to actively take steps to avoid detection by law enforcement agencies or destroy or conceal evidence.

Cross-examination of D/I Leis

The applicant notified the respondent that he required D/I Leis to attend the hearing for cross-examination and the witness was called and sworn. He stated that the evidence contained in Ex A is true and correct.
In cross-examination, the applicant referred the witness to [12] of Ex A and asked whether he had also reviewed the sound recording? He replied "No". He then asked if he had reviewed the transcripts. He replied "No".
The applicant then referred the witness to [17] of Ex A, and asked whether he had checked the accuracy of the SDA? The witness replied that he was satisfied that the information sought in the GIPA request is protected information and that proper procedures were followed.
The applicant asked the witness whether an application was made to an eligible judge? However, the Tribunal disallowed that question and ruled that while the witness can be cross-examined, questions should be restricted to matters in his evidence.
The applicant then referred the witness to [20] of Ex A and asked whether redactions could cure the issues that he raised? The witness replied to the effect that [20] highlights the need to maintain the confidentiality of protected information.
The applicant then referred the witness to [31] - [42] of Ex A and asked whether redacting the documents would safeguard the integrity of the protected information? The witness then asked the applicant what he meant by "redaction" and the applicant said that he "does not require most of the confidential information and that he only wants telecommunications and Attorney General including audio".
The witness then stated that with respect to protected information, s 39 of the SDA applies to anything that may be obtained by use of the SDW. There are very strict legislative processes and procedures in place in relation to the use and disclosure of information as defined in s 39 of the SDA and there is considerable oversight in preparing the s 44 report, which is also protected information. He stated that he is satisfied that all steps were taken to ensure the integrity of the investigation.
The applicant stated that he did not have any further questions for the witness. Ms Mattes did not seek to raise anything in re-examination and the witness was excused.

Confidential hearing

The Tribunal determined that it was necessary to conduct a confidential hearing in the applicant's absence pursuant to s 107(2) of the GIPA Act in order to determine whether the disputed information was either subject to a conclusive presumption against disclosure or an overriding public interest against disclosure.
Accordingly, the Tribunal adjourned the open hearing until 11:30am and closed the open AVL hearing room.
Ms Mattes made oral submissions in relation to the documents that the respondent lodged with the Tribunal on a confidential basis, which I have summarised as follows.

Documents subject to a conclusive presumption of an overriding public interest against disclosure

[NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION]

Documents subject to a non-conclusive presumption of an overriding public interest against disclosure

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The confidential hearing then concluded.

Further evidence of the respondent

Ms Mattes provided an affidavit dated 18 October 2023, in which she declared and affirmed that she is a solicitor employed by the Crown Solicitor of NSW and currently holds the position of A/Special Counsel in the Constitutional and Administrative Law team of the Crown Solicitor's Office. She stated that on/about 14 September 2023, she contacted the ODPP regarding the information that had been determined as being excluded information of the DPP for the purposes of the GIPA Act. She stated: 4. On 27 September 2023, I received a letter from Esther Kwiet of the ODPP, confirming that certain documents were included in the police brief of evidence in proceedings involving the applicant; that those documents are excluded information of the ODPP; and that the ODPP does not consent to their disclosure under the GIPA Act. A copy of that letter is annexed to this affidavit and marked "A". 5. Ms Kwiet also forwarded me a document comprising a copy of the index to the police brief of evidence, and an index to the brief that had been prepared by the ODPP. A copy of that document is annexed to this affidavit and marked "B". For the purpose of this affidavit, I have redacted the names of witnesses who are not officers of the NSW Police Force.
The applicant objected to the tender of Ms Mattes' affidavit. However, the Tribunal asked him to clarify the basis of his objection and he replied that he did not consider that Ms Kwiet "had authority to write the letter that is annexure "A" and that his belief is that it should have been written by either the DPP or the Deputy-DPP".
The Tribunal determined that there was no proper basis for excluding annexure "A".
The applicant did not otherwise object to the contents of Ms Mattes' affidavit or annexure "B". The affidavit was admitted into evidence and marked Ex B.

Applicant's evidence

The applicant did not file a statement, but he relied upon the following documents: 1. Written submissions filed 20 December 2023; 2. Supplementary submissions (undated, comprising 36 pages); 3. Document headed "Trial transcripts" dated 12 March 2019, which he alleged proves that the SDW was not tendered into evidence. 4. Statement of DSC Kennedy dated 6 October 2015, which disclosed how the phone tapping was conducted; 5. Letter to Superintendent Healey of Campbelltown Police dated 1 June 2023; 6. Letter from the LECC dated 21 September 2022; 7. Letter of complaint to the LECC dated 27 September 2022; 8. LECC Complaint Form dated 14 September 2022; 9. Letter from the LECC dated 16 November 2022; 10. Letter to the LECC dated 2 November 2022; 11. Complaint to the Ombudsman dated 20 July 2023; 12. Letter to Anton Tuk, Solicitor, dated 21 September 2022.
The attachments to the submissions were not marked as exhibits, but I have considered them in determining the application for administrative review.

Information subject to a conclusive presumption that there is an overriding public interest against disclosure

The respondent's written submissions pre-date the applicant's concession that he already has a copy of the SDW. Therefore, I have considered the respondent's submissions in relation "excluded information" of the ODPP as applying to the sound recordings that resulted from the use of the SDW.
In considering the scope of the DPP's prosecuting functions, regard may be had to the Director of Public Prosecutions Act 1986 and particularly Pt 3, which sets out the principal and other functions of the Director, Deputy Director and Solicitor for the Director. Section 9(1) is particularly relevant as it provides that the principal functions and responsibilities of the Director are "institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and District Court," and to act in any appeals in any court in respect of any such prosecution.
The Tribunal has given a wide interpretation to what constitutes the prosecuting functions of the DPP. In DF v Attorney General's Department [2002] NSWADT 164, the Administrative Decisions Tribunal, considering an equivalent provision under the now repealed Freedom of Information Act 1989, found that "prosecuting functions" extended beyond in-court conduct of a prosecution, to cover all the professional and administrative tasks connected with the preparation of a case for trial and its outcome, including review of the outcome and taking any further action in respect of the case (such as a decision to appeal, and the appeal).
This analysis was applied with respect to the construction of sch 2 of the GIPA Act in Miller v Director of Public Prosecutions [2012] NSWADT 38, with the Tribunal accepting that "prosecuting functions" should be given a wide meaning. While acknowledging that not all functions of the DPP were prosecuting functions, the Tribunal found that documents that were generated in the context of a complaint about the manner in which the DPP had exercised its prosecuting functions, were sufficiently connected to the exercise of those functions as to be excluded information for the purpose of s 43 of the GIPA Act.
The Tribunal's approach in Miller reflects the broad interpretation that has been given to the words "relates to", when considering whether information relates to a Sch 2 Agency's nominated functions. Considering an equivalent provision under the former Freedom of Information Act 1989, in N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33, the Administrative Decisions Tribunal made the following observations at [32]-[33]: 32 This interpretation of 'relate to' is similar to that adopted in relation to the words 'in connection with' in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 upon which counsel for the respondent relied by way of analogy. There Wilcox J observed at 478 that the words ''in connection with have a wide connotation requiring merely a relationship between one thing and another. They do not necessarily require a causal relationship between the two things …' and referred to a Canadian trial judge's ruling that the words 'include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing.' 33 I agree with counsel for the respondent that the words 'relate to' have a similar broad connotation.
The Tribunal applied that analysis in Betzis v Commissioner of Police [2020] NSWCATAD 71 (Betzis), as follows: 34. The expression "relate to" has been held to be one of broad import: see, for example, Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 11. This Tribunal has generally held that the phrase "relating to" and similar expressions is a broad one to be construed with the widest import (Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] - [23]; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]). As the Tribunal noted in Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [15], in each case, the question is the extent to which the information in issue has a connection with the specified function.
The respondent argued that records that are included in a prosecution brief of evidence are documents that relate to the exercise of the ODPP's prosecution functions. The brief of evidence is the mechanism by which prosecutors comply with the obligations for disclosure of evidence in the prosecution of indictable offences under the Criminal Procedure Act 1986. Information within a brief thus has a direct, causal connection to the exercise of the ODPP's functions in the prosecution of indictable offences.
In this matter, the ODPP confirmed that both the SDW and the recordings were included in the brief of evidence held by the ODPP in relation to the criminal proceedings involving the applicant. This is also reflected in the brief indexes prepared by NSWPF and the ODPP with respect to charge H61444788. It follows that this information is excluded information of the ODPP for the purposes of the GIPA Act.
As required by Sch 1 cl 6(2) of the GIPA Act, the respondent asked the ODPP whether they consented to the disclosure of the information. However, the ODPP did not consent to disclosure of the documents under the GIPA Act and the ODPP's decision to refuse to consent to disclosure is not a reviewable decision under Pt 5 of the GIPA Act: see Sch 1 cl 6(3) and Bradford v Commissioner of Police (No 2) [2022] NSWCATAP 143.
Therefore, it is to be conclusively presumed that there is an overriding public interest against disclosure of the sound recordings and the Tribunal must affirm the respondent's decision to refuse access.

Documents subject to an overriding public interest against disclosure

The respondent argued that the Affidavit of DSC Kennedy and the s 44 report are subject to the public interest test under s 13 of the GIPA Act.
The public interest test is to be applied in the manner described in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19: 24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. 25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 26. … the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.
The Appeal Panel concluded that it was "not relevant to the Tribunal's task at the s. 14 stage of the enquiry to take account of events subsequent to the circumstances that gave rise to the document or information the subject of the refusal" as "the s. 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged."
The considerations against disclosure in the table to s 13(2) arise where the disclosure of information "could reasonably be expected to" have the relevant effect. The phrase "could reasonably be expected to" was also used in Sch 1 of the former Freedom of Information Act 1989, as well as in the Freedom of Information Act 1982 (Cth), and has been the subject of extensive judicial consideration. In Attorney General's Department v Cockcroft (1986) 10 FCR 180, Bowen CJ and Beaumont J held 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 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.
In Leech v Sydney Water Corporation [2010] NSWADT 298, the Administrative Decisions Tribunal held (at [25]): The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. 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 approved that approach in Flack v Commissioner of Police (NSW) [2011] NSWADT 286 at [41].
The word "prejudice" is to be given its ordinary everyday meaning, which is "to cause detriment to or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 (at [60]).
"Reveal" is defined in Sch 4 cl 1 of the GIPA Act as: Reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel found that the Tribunal erred by applying an overly demanding evidentiary standard, insofar as it required the agency to provide factual evidence in order to satisfy the standard of "could reasonably be expected to". The Appeal Panel found that an ordinary weighing of the material by the Tribunal would give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses.

Public interest considerations in favour of disclosure

The respondent stated that in addition to the general public interest in favour of disclosure under s 12(1) of the GIPA Act, it considered that the information related to the applicant.
In the application for administrative review, the applicant expressly invokes s 12 of the GIPA Act in his grounds for review and he refers to "possible police misconduct or corruption", alleges that "warrant information was not disclosed in the trial proceedings by NSW Police or the trial prosecutor" and raises "suspicion of the police records, maybe a false instrument".
The respondent argued that there is nothing in the material before the Tribunal that would support a finding that disclosure of the information "could reasonably be expected to reveal or substantiate" misconduct (using the language of (e) to the note to s 12(2)). However, it is accepted that the applicant's concerns regarding the conduct of the criminal proceedings, and his subsequent motivation for seeking access to information, are personal factors that add weight to the public interest considerations in favour of disclosure.

Public interest considerations against disclosure

The respondent argued that disclosure of the Affidavit of DSC Kennedy and the s 44 report could reasonably be expected to constitute a contravention of the SDA: cl 6 of the table to s 14(2) of the GIPA Act.
The respondent argued that the following public interest considerations against disclosure apply to the information in the Affidavit of DSC Kennedy and the s 44 report: 1. Disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: cl 1(d) of the table to s 14(2); 2. Disclosure could reasonably be expected to prejudice the effective exercise of the agency's functions: cl 1(f) of the table to s 14(2); 3. Disclosure could reasonably be expected to reveal information supplied to an agency in confidence: cl 1(g) of the table to s 14(2); 4. Disclosure could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law: cl 2(b) of the table to s 14(2); 5. Disclosure could reasonably be expected to reveal the personal information of individuals: cl 3(a) of the table to s 14(2); 6. Disclosure could reasonably be expected to contravene an Information Privacy Principle under the Privacy and Personal Information Protection Act 1998: cl 3(b) of the table to s 14(2); and 7. With respect to personal information about a child, it would not be in the best interests of the child to have it disclosed: cl 3(g) of the table to s 14(2).

Clause 6 - Contravene provision prohibiting disclosure of information

Clause 6(1) of the table to s 14(2) of the GIPA Act provides that it is a public interest consideration against disclosure: 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.
The respondent argued that cl 6 applies to this matter as disclosure of this information would contravene the prohibition against disclosure of "protected information" under s 40 of the SDA, because: 1. The Affidavit was used to apply for the SDW, as required by s 17 of the SDA, and it is therefore information relating to an application for a SDW: s 39 of the SDA; and 2. The s 44 report is information relating to the issue of or existence of a SDW.
Under s 40 of the SDA, it is an offence to intentionally, knowingly or recklessly use, communicate or publish protected information, with a maximum penalty of imprisonment for 2 years. Section 40(2) creates an aggravated form of offence for which the maximum penalty is imprisonment for 7 years. Section 40 is therefore a provision that prohibits the disclosure of information for the purposes of cl 6 of the table to s 14(2) of the GIPA Act.
Sections 40(3)-(9) of the SDA set out a series of exceptions to the prohibition against disclosure under s 40(1). However, none of these exceptions or exclusions apply with respect to the Affidavit of DSC Kennedy or the s 44 report. The terms and scope of the exceptions are relevant to the Tribunal's consideration of the policy underlying the prohibition against disclosure and the Tribunal has held that the extent to which the prohibition on disclosure is subject to exceptions may assist in identifying the policy implications behind the provision: Clarke v Blacktown City Council [2013] NSWADT 36.
Clause 6(2) provides that the public interest consideration "extends to consideration of the policy that underlies the prohibition against disclosure". The respondent argued that disclosure of the disputed information would be contrary to the strict and limited regime under the SDA for dealing with information obtained through the use of and relating to surveillance devices. The policy underlying s 40 of the SDA is apparent when regard is had to the broader text, structure and context of the SDA.
Restricting the use, publication and communication of information obtained through the use of surveillance devices was identified as one of the objects of the SDA: Surveillance Devices Bill 2007, Explanatory Note, p 1 (as referred to in Cheung v Commissioner of Police, NSW Police Force [2019] NSWCATAD 249 and FDY v Commissioner of Police [2021] NSWCATAD 285).
The strictness of the SDA regime is also reflected in the serious penalties available for breaches of s 40(1). In Voitenko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324 (Voitenko), Hall J stated: 99. The fact that a breach of s 40 under either ss 40(1) or 40(2) 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.
With the exception of the consent provision (s 40(5) of the SDA), there are three classes of exceptions in ss 40(3) - (9), namely: (1) exceptions for the purposes of law enforcement activities; (2) exceptions to protect the safety of persons or property; and (3) exceptions in relation to the conduct of public officers. The respondent argued that the limited nature of these exceptions demonstrates an intention to strictly control information obtained through and relating to a surveillance device.
In Voitenko, Hall J considered the policy concerns underlying the prohibition on use and disclosure of protected information, as follows: 87. The provisions of the SD Act, however, also 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). The prohibition under s 40 in other words evidences a legislative intent to limit the impact of surveillance upon the right to privacy… 96. … Two reasons for the prohibitions against disclosure of protected information under ss 40(1) and (2) may be discerned. First, in order to ensure that the intrusion into the private conversations of citizens recorded by the lawful use of surveillance devices under the SD Act are not to be used, communicated etc beyond the legitimate interests of law enforcement for which a warrant was issued under the Act. Second, in order to secure the integrity of investigations by law enforcement agencies by proscribing any other use, communication etc of protected information which might otherwise impair the efficacy of such investigations.
Therefore the underlying policy concerns regarding the prohibition in s 40 of the SDA are: (1) to control and minimise the intrusion into the privacy of individuals; and (2) to preserve the integrity and efficacy of investigations by law enforcement agencies. The respondent argued that disclosure of the disputed information under the GIPA Act would be contrary to the policy concerns underlying s 40 of the SDA for the following reasons: 1. Disclosure of the Affidavit of DSC Kennedy would reveal the personal information of a number of individuals who are referred to in it, often in connection with matters that are highly sensitive in nature. Disclosure of that information under the GIPA Act, with no conditions on how the information may be used or disclosed, would constitute an egregious intrusion on the privacy of those individuals; and 2. Disclosure of that Affidavit and the s 44 report would have the effect of revealing NSW Police investigative methodologies and the nature of deliberations occurring in the context of an investigation process. Individuals armed with information of this nature may take steps to evade or undermine police investigations. Disclosure of information of this nature could reasonably be expected to undertime or subvert investigations of this nature by NSWPF.
The strictness of the regime established under the SDA, and the importance of the policy considerations underpinning that regime, was recognised by the Tribunal in Cheung, where Senior Member Ransome stated: 55. The use of surveillance devices, including body-worn video, is an essential and integral part of the detection and investigation of criminal offences in New South Wales. The legislation governing the use of such devices is also designed to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices. As a result, the Surveillance Devices Act and Regulation establish a strict regime for the collection, use and disclosure of information gathered through the use of the surveillance device, including body-video footage. In my view, for these reasons considerable weight should be given to this public interest consideration against disclosure.

Clauses 1(d) and 1(g) of the table to s 14(2) of the GIPA Act

The respondent argued that both of these public interest considerations against disclosure apply to the disputed information. The question of whether cl 1(d) is established involves a relatively abstract analysis, as the issue to be decided is predictive about a future consequence from unspecified persons based on a hypothetical scenario: see Camilleri at [26] and Transport for NSW v Searle [2018] NSWCATAP 93 (Searle) at [56].
As Senior Member Montgomery observed in Collins v Department of Finance, Services & Innovation [2018] NSWCATAD 60 (Collins): 61. The relevant elements of Clause 1(d) are: (1) the information was obtained in confidence; (2) disclosure of the information could reasonably be expected to prejudice the supply of such information to the Agency in future; and (3) the information facilitates the effective exercise of the Agency's functions.
With respect to the first limb of cl 1(d), the Appeal Panel outlined the general approach to determining whether or not information is confidential information in Camilleri. The Appeal Panel stated: 33. In our view, the question of whether the information supplied is 'confidential information' must 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. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service.
The respondent stated that these matters are established by the evidence of D/I Leis. Further, the community's expectations as to the confidentiality of information are consistent with the legal framework within members of the NSWFP operate. Clause 76(1) of the Police Regulation 2015 is particularly relevant and it provides: Confidential information (1) A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone.
Additional protections are also in place for matters involving allegations of sexual assault, and offence against minors. D/I Leis deposed that where a charge of sexual assault proceeds to a hearing, there are a number of measures that are required and/or may be employed, to protect the privacy of victims and other witnesses: see also Pt 5 of the Criminal Procedure Act 1986.
The confidentiality of information supplied by members of the public to police has also been confirmed by the Courts and Tribunal on a number of occasions,
In Simring v Commissioner of Police (NSW) [2009] NSWSC 270, the Supreme Court found that when a person speaks with police in relation to a criminal offence and reveals sensitive matters, that person expects that statements made will only be used for the purpose of Court proceedings, and not otherwise. Similarly, the Tribunal has confirmed the confidentiality of information of this nature when considering applications to access information on numerous occasions: see Camilleri; AEZ v Commissioner of Police (NSW) [2013] NSWADT 90 at [71]; Sherman v Commissioner of Police (NSW) [2016] NSWCATAD 107; DYD v Commissioner of Police [2019] NSWCATAD 265; Danis v Commissioner of Police [2020] NSWCATAD 138; Gabriel v Commissioner of Police [2020] NSWCATAD 51; Medlyn v Commissioner of Police [2020] NSWCATAD 125; DTB v Commissioner of Police [2019] NSWCATAD 114; FDY v Commissioner of Police [2021] NSWCATAD 285; Campbell v Commissioner of Police (NSW) [2022] NSWCATAD 12; and Eggleton v Commissioner of Police [2022] NSWCATAD 218.
In determining whether disclosure of information of this nature could reasonably be expected to prejudice the future supply of such information to the NSWPF, 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, but whether the agency will be able to obtain such information in the future: Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80 at [38].
In Leydon v Commissioner of Police [2019] NSWCATAD 267, the Tribunal observed that it should not just look at the issue in isolation, but examine the issue to determine whether the agency's ability to obtain confidential information in future would be impaired. D/I Leis provided evidence in relation to these matters.
The Tribunal has accepted on numerous occasions that disclosing confidential information supplied to the NSWPF would prejudice the future supply of such information. For example, see: Smith v Police Force (NSW) [2015] NSWCATAD 32, at [39]; DYD; Danis; EGR v Commissioner of Police [2020] NSWCATAD 94; Leydon; Gabriel; Dezfouli v Commissioner of Police [2020] NSWCATAD 103; and Medlyn.
The respondent argued that information supplied in confidence to the NSWPF by members of the community is crucial to the effective exercise of NSWPF investigative, law enforcement and community protection functions. This is emphasised in the evidence of D/I Leis.
Therefore, the respondent argued that cll 1(d) and 1(g) of the table to s 14(2) of the GIPA Act were established.

Clause 2(b) of the table to s 14(2) of the GIPA Act

The respondent argued that cl 2(b) applies to both the Affidavit of DSC Kennedy and the s 44 report. This consideration is directed to preserving the integrity of intelligence gathering as a method of preventing contraventions, or possible contravention, of the law.
The Tribunal has found that cl 2(b) (and its predecessor under the former Freedom of Information Act 1989 (now repealed)) applies to information that reveals, or confirms, lawful police methods and procedures for preventing or detecting possible contraventions of the law: see Desmond v Commissioner of Police (NSW) [2003] NSWADT 231 at [17]; RT v Commissioner of Police (NSW) [2005] NSWADT 270 at [35]-[36]; UC v Commissioner of Police (NSW) [2005] NSWADT 272 at [32]-[33]; Campillo v Australian Customs Service [2005] AATA 1196 at [19]-[21]; and Miskelly v Secretary, Department of Education [2019] NSWCATAD 48.
Clause 2(b) applies where it reveals information about procedures which have some element of secrecy to them. See XZ v Commissioner of Police (NSW) [2009] NSWADTAP 2 at [21]; Sawyer v Commissioner of Police (NSW) [2018] NSWCATAD 61 (disclosure would reveal information relating to methodology in police pursuits); Betzis v Commissioner of Police (NSW) [2020] NSWCATAD 71 (details of forensic and investigative techniques, methodologies and protocols used by police); Klaric v Commissioner of Police (NSW) [2020] NSWCATAD 47; and Dezfouli (police methodology for investigating a white powder). In particular, in Betzis, the Tribunal found that cl 2(b) was a consideration against disclosure of information which may only appear to confirm whether a particular search was undertaken, communication made or forensic test conducted, as such information could be used to deduce whether information had been supplied to, or come to the attention of police, or to confirm particular techniques or methodologies employed (at [59]).
In ECN v Commissioner of Police [2020] NSWCATAD 153, the Tribunal found that cl 2(b) applies as a consideration against disclosure of information which identifies liens of inquiry, additional matters for investigation and broader operational issues.
This consideration is established by the evidence of D/I Leis and the respondent argued that it should be given significant weight

Clauses 3(a), 3(b) and 3(g) of the table to s 14(2) of the GIPA Act.

The respondent argued that each of these public interest considerations against disclosure apply to the disputed information. In particular, the respondent argued that upon review of the disputed information, it will be apparent to the Tribunal that these records contain the personal information of individuals other than the applicant. The redaction of the names and identifying details of those individuals would not overcome the application of cl 3(a), particularly as the applicant is aware of their identities.
Disclosure of the personal information would also contravene the Information Protection Principles under the Privacy and Personal Information Protection Act 1998. Section 18 provides, relevantly: Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
Further, s 19(1) provides: Special restrictions on disclosure of personal information (1) A public sector agency must not disclose personal information relating to an individual's ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership or sexual activities unless the disclosure is necessary to prevent a serious and imminent threat to the life or health of the individual concerned or another person.
The respondent argued that none of the conditions for the permitted disclosure of personal information apply in this matter. Disclosure under the GIPA Act would not be a disclosure related to the purpose for which the information was collected, nor for the reasons discussed by D/I Leis could it be expected that the individual(s) concerned would be aware of the possibility of such disclosure, or would not object to such disclosure. Nor is disclosure necessary to prevent or lessen a serious and imminent threat to life or health of an individual (which would be the only permitted purpose for disclosure of information related to sexual activities). Therefore, cl 3(b) applies.
It will also be apparent to the Tribunal that certain information in the Affidavit of DSC Kennedy relates to an individual who was, at the relevant time, a minor. The information is of such a nature that it would not be in the best interests of that individual that it be disclosed under the GIPA Act. Therefore, cl 3(g) applies and the Tribunal has held that cl 3(g) may apply even where the person to whom the information relates is no longer a child: see Medlyn and Danis.
The respondent argued that these clauses are compelling considerations against disclosure of the disputed information and that they are insurmountable.

Balancing the public interest

The respondent acknowledged the public interest considerations in favour of disclosure that were set out in its submissions, but argued that the type of unconditional disclosure provided under the GIPA Act is not the appropriate mechanism for achieving those ends. To the extent that the applicant seeks information for the purpose of legal proceedings or to pursue some complaint, there are more appropriate mechanisms for pursuing those ends, with restrictions on how the information may be used or disclosed.
Against this, the public interest considerations against disclosure are compelling and far outweigh those considerations in favour of disclosure. Disclosure under the GIPA Act would be entirely at odds with the very strict regime for dealing with protected information under the SDA, and the policy objectives underlying that regime, in and of itself would serve to outweigh the public interest favouring disclosure. Otherwise, the public interest considerations against disclosure should be accorded significant weight and the Tribunal should find that the public interest considerations against disclosure outweigh those in favour of disclosure.
Therefore, the Tribunal should affirm the respondent's decision to refuse access to the disputed information.

Applicant's submissions filed 20 December 2023

As I noted in relation to the applicant's opening statement, a significant part of his written submissions relate to matters that are beyond this Tribunal's jurisdiction and which are otherwise irrelevant to the matters to be determined in the current proceedings. I have therefore decided to only set out the submissions that are directly relevant to the application for administrative review.
A significant volume of the applicant's submissions assert that the respondent "illegally intercepted a telecommunications and then tampering (sic) with this evidence which is the consequence of an impropriety or a contravention of an Australian law". This assertion was essentially based on an allegation that the SDW was not served with the prosecution brief of evidence before the criminal trial in the District Court.
However, the applicant subsequently conceded that he had received a copy of the SDW and that he no longer sought access to it as part of his GIPA request. In any event, I note that the Tribunal does not have jurisdiction to determine the legality (or otherwise) of a SDW.
The applicant sought to invoke s 169A of the Police Act 1990 (NSW) (Police Act) as suggesting "a reasoning for the Applicant to support some form of limited disclosure, as the Applicant is the principle (sic) party to these proceedings before the Tribunal". Section 169A provides, relevantly: Identity of complainant not to be disclosed (1) Information tending to identify a person as a complainant (identifying information) is not to be disclosed by a member of the NSW Police Force. (2) However, subsection (1) does not prevent the disclosure of the identifying information if - (a) the person consents in writing to the disclosure of the identifying information, or (b) it is generally known the person is a complainant as a result of the person's voluntary self-identification as a complainant, or (c) after consulting the person, the member of the NSW Police Force reasonably considers it necessary to disclose the identifying information to protect a person from detriment, or (d) it is necessary the identifying information be disclosed to a person whose interests are affected by the complaint, or (e) the identifying information has previously been lawfully published, or (f) the identifying information is disclosed to a medical practitioner or psychologist for the purposes of the practitioner or psychologist providing medical or psychiatric care, treatment or counselling to the member of the NSW Police Force, or (g) the identifying information is disclosed for the purposes of proceedings before a court or tribunal, or (h) the disclosure of the identifying information is necessary to deal with the complaint effectively, or (i) it is otherwise in the public interest to disclose the identifying information, or (j) the identifying information is disclosed in accordance with a requirement of or made under this or another Act, or (k) the identifying information is disclosed in accordance with guidelines established by the Commissioner for the purposes of this section. (3) To avoid doubt, a person does not voluntarily self-identify as a complainant merely by making the complaint in confidence…
However, the applicant was the person of interest rather than the complainant and it is far from clear how s 169A of the Police Act applies. In any event, I reject his assertion that s 169A entitles him to some form of access to the disputed information under the GIPA Act.
The applicant argued that s 73(2) of the GIPA Act, which deals with the form of access that can be granted to information by an Agency, "provides for a condition that the Applicant asserts that the protected information can be provided that all of the personal information to be omitted to ensure compliance with the rule of law & satisfy s 14(2). It's the concerns of the use of the Surveillance Device Warrant on a phone intercept which is contrary to the provisions within the Telecommunications (Interception and Access) Act 1979 (Cth), that the procedures of NSW Police Force requires examination…"
In my view, the applicant's reliance on s 73(2) as enabling the respondent to provide him with access to the disputed information is misconceived.
The applicant also relied on "Parliament's intentions… as reported in the Public Interest Disclosures Act 2022 (NSW)". However, this matter does not involve a Public Interest Disclosure.
The applicant stated, relevantly: 22. The applicant submits that he requires the requested documents and audio recordings for his all grounds appeal on his conviction now part of his grounds to his Appeal submissions. The applicant is the principle (sic) party to these proceedings and these documents are part of the brief that I seek for disclosure as reported in the Director of Public Prosecutions Act 1986 (NSW) under Part 3 Functions at heading 15A Disclosure by law enforcement or investigating officers… The applicant submits that this provision at 15A provides that disclosure is also within the duty of the law enforcement to assist the case of the prosecutor and the accused. Please also note that the Solicitors office is no longer running who had support the applicant's trial proceedings and therefore the applicant requires the document under this application for Criminal Appeal proceedings… The applicant also advises that the phone intercepted evidence was not provided to the Defence Counsel until the first day of the trial, and then handed back to the Crown Solicitor. Please refer to the supplementary submissions & the various transcripts provided.
The applicant argued that s 42(3)(a) or (b) of the SDA ensures a provision for disclosure is adopted into the rule of law for a procedurally fair operation of the law.
However, I note that s 42 is headed "Protection of surveillance device technologies and methods" and it is unclear how this provision assists the applicant in these proceedings.
The applicant stated that his Appeal Submissions to the NSW Court of Criminal Appeal rely heavily on an unfair trial, including procedural unfairness, and he set out several alleged grounds relating to the conduct of the criminal trial in the District Court of NSW.
However, this Tribunal lacks jurisdiction to review the conduct of a criminal trial conducted by the District Court of NSW and in my view, none of the grounds set out in [24] are relevant to the current administrative review.
The applicant made submissions at length that may be relevant to a complaint to the Law Enforcement Conduct Commission (LECC), and he stated that he had made five previous complaints to the LECC. However, in my view, none of these submissions are relevant to the current administrative review.
The applicant also provided lengthy and rambling submissions in response to the respondent's written submissions, and he ultimately concluded that there is an overriding public interest in favour of disclosure of the disputed information. He then made submissions in relation to caselaw that relates to public interest immunity. However, "public interest immunity" does not apply to the current administrative review proceedings.
The applicant concluded: 139. The Tribunal rule that section 14(1), Sch 1 are not the conclusive presumption descripter (sic) of the phone intercepted sound recordings. The respondent has not provided an alternative of any other provisions within the GIPA Act of that class of this document, therefore if the Tribunal agrees that s 14(1) does not apply, then to rule for disclosure in favour of the applicant…

Applicant's supplementary submissions

In these submissions, the applicant argued that "safety provisions can be applied into 14(2) clauses, namely any of the agreed information within each of the documents, be deleted, view-only provisions, listen to recordings provisions, however no actual copies be provided" to him. He made extensive submissions as to why he requires the disputed information, and asserted that there is no conclusive presumption that there is an overriding public interest against disclosure under s 14(1) and Sch 1 of the GIPA Act.
The applicant did not specifically address s 40 of the SDA, except to the extent that he referred to the decision in Voitenko, and he asserted that the prohibition under s 40 of the SDA is not absolute and that the use or publication of protected information may be permitted in an investigation of a complaint against or the conduct of a public officer.
However, I note that there is no evidence before me of any current complaint against a public officer and in any event, such a complaint would be beyond the Tribunal's jurisdiction.

Respondent's submissions in reply

The respondent filed submissions in reply on 22 January 2024.
The respondent noted that the applicant's submissions (x 2) raised a range of issues relating to the police investigation, the conduct of his criminal trial, and his subsequent interactions with various Government agencies. Most of those matters beyond the scope of the Tribunal's jurisdiction under the GIPA Act and are of limited, if any, relevance to the matters to be determined in the current administrative review.

Classification of information as excluded information of the ODPP

The respondent stated that the sound recordings are excluded information of the ODPP and it is conclusively presumed that there is an overriding public interest against disclosure.
The applicant argued that the sound recordings are not excluded information of the ODPP, because they were created by the NSWPF in the exercise of NSWPF's functions and that it cannot be excluded information where the GIPA request was made to the respondent and not the ODPP.
However, the basis on which sound recordings are said to be information relating to the ODPP's prosecuting functions is by virtue of their inclusion in the prosecution brief of evidence. This is the means by which prosecutors comply with disclosure obligations in the prosecution of indictable offences under the Criminal Procedure Act 1986. The information in this brief has a direct, causal connection to the exercise of the ODPP's functions in the prosecution of indictable offences.
The respondent relied upon the Tribunal's decision in Betzis, which confirms that the fact that a document has been created by the NSWPF does not preclude its classification as excluded information of another agency. Further, the fact that a document is also held by the NSWPF does not preclude its classification as excluded information of a Sch 2 agency.
The applicant sought to rely upon the decision of Senior Member Gracie in EGR. However, the respondent argued that the Tribunal's reasons do not clearly state any principles contrary to the position it has taken in these proceedings. To the extent that those reasons could be interpreted as suggesting, either that documents created by the NSWPF cannot be excluded information of the ODPP, or that the conclusive presumption in cl 6 and Sch 1 of the GIPA Act cannot apply when a GIPA request is made to the NSWPF, the respondent argued that this would be an incorrect statement of principle and it would be an outcome contrary to the terms of the GIPA Act and inconsistent with the balance of the case law applying the relevant provisions.
Information relating to the exercise of the prescribed functions of agencies listed in Sch 2 is information that Parliament has determined should not be subject to disclosure under the GIPA Act. The GIPA Act serves to exclude "excluded information" from the regime for disclosure of government information in two ways: 1. To the extent that an application is made to an agency listed in Sch 2 for information relating to those functions prescribed by Sch 2, the application will not be a valid access application pursuant to s 43 of the GIPA Act; and 2. Where an application for information is made to an agency other than an agency listed in Sch 2, for "excluded information" of a Sch 2 agency, it is conclusively presumed that there is an overriding public interest against disclosure of that information, unless the Sch 2 agency consents to disclosure, pursuant to Sch 1 cl 6 of the GIPA Act.
The Tribunal has confirmed on multiple occasions that documents generated by an agency other than a Sch 2 agency, may be excluded information of the Sch 2 agency, including where the record has been created for multiple purposes beyond the scope of the excluded agency's functions. See: Pertisinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130; Achieve Australia Ltd v Department of Family and Community Services (NSW) [2014] NSWCATAD 171; Roberts v Commissioner of Police, NSW Police Force [2018] NSWCATAD 127; and Bradford v Commissioner of Police [2022] NSWCATAP 143.
The applicant argued that if the Tribunal does not accept that the sound recordings are excluded information, it must determine that the correct and preferable decision is to release that information. However, the respondent argued that based on the evidence before it, the Tribunal could not be satisfied that the correct and preferable decision would be to release the sound recording, as: 1. D/I Leis' evidence is that both the sound recordings and the SDW are "protected information" under the SDA and the respondent has identified these are information to which the public interest consideration against disclosure under cl 6 of the table to s 14(2) of the GIPA Act applies; and 2. The sound recordings would also be subject to at least the public interest considerations against disclosure in cll 3(a), 3(b) and 3(g) of the table to s 14(2), and those considerations should be given considerable weight.
Therefore, even if the Tribunal was not satisfied that the sound recordings are excluded information of the ODPP, it should nevertheless be satisfied that there is an overriding public interest against disclosure and affirm the respondent's decision to refuse to grant access.
Accordingly, at its highest, disclosure of the s 44 report and the Affidavit of DSC Kennedy could assist the applicant in his assessment of whether there was compliance with the relevant regime for the issue of warrants under the SDA, and this is a personal factor that adds some weight to the considerations in favour of disclosure. However, this should only be given moderate weight.

Scope of the requested information

The respondent noted that at various points in his written submissions, the applicant sought to expand the scope of the information sought in the GIPA request. However, this is not permitted.

Legal principles

The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
On an application made under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. This states: 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.
The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

The GIPA Act

In respect of access applications, s 9(1) of the GIPA Act relevantly provides: 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.
I am satisfied that the decision dated 10 May 2023 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.
However, pursuant to cl 6(3) of Sch 1 of the GIPA Act, the ODPP's decision to refuse to consent to the disclosure of its excluded information is not a reviewable decision.
In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
Section 14 relevantly 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 purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This 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.
Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
Section 107 of the GIPA Act 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 overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
Clause 6 of Sch 1 of the GIPA Act provides: 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
Sch 2 of the GIPA Act provides: Schedule 2 Excluded information of particular agencies Note - Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. 1 Judicial and prosecutorial information …The Office of Director of Public Prosecutions - prosecuting functions…

Excluded information

As previously indicated, the applicant no longer seeks access to the SDW as he concedes that he has a copy of it, but he presses his claim for access to the sound recordings that resulted from the use of the SDW.
The applicant also argues that the Tribunal should review the sound recordings in order to ascertain the accuracy of the transcripts presented in his criminal trial in the District Court of NSW.
This Tribunal does not have jurisdiction to review the accuracy of evidence relied upon in the District Court proceedings, although I note that the transcripts lodged by the applicant in these proceedings indicate that the Court spent considerable time during the trial in verifying the accuracy of the transcribed sound recordings.
Having reviewed the sound recordings in chambers, I am satisfied that they are information that relates to the prosecuting functions of the ODPP. Therefore, cl 1 of Sch 2 of the GIPA Act applies to them. It follows that under cl 6(1) of Sch 1 of the GIPA Act, I am satisfied that they are excluded information of the ODPP and the ODPP has refused to consent to disclosure.
Based on the Tribunal's previous decisions in multiple matters, which include Betzis and YG, I am satisfied that the term "prosecuting functions" should not be interpreted restrictively.
Therefore, I am satisfied that there is a conclusive presumption that there is an overriding public interest against disclosure of the sound recordings and it is not necessary to apply the public interest test to this information.

Affidavit of DSC Kennedy and the report under s 44 of the SDA

It is necessary to determine whether there is an overriding public interest against disclosure of this information by applying the public interest test under s 13 of the GIPA Act.
I have applied the public interest test in accordance with the decision in Leech as follows.

Public interest considerations in favour of disclosure

The respondent decided that in addition to the general public interest in favour of disclosure under s 12(1) of the GIPA Act, it considered that the information related to the applicant.
The applicant invoked s 12 of the GIPA Act in his grounds for review and referred to "possible police misconduct or corruption", alleges that "warrant information was not disclosed in the trial proceedings by NSW Police or the trial prosecutor" and raises "suspicion of the police records, maybe a false instrument".
However, the respondent argued that there is nothing in the material before the Tribunal that would support a finding that disclosure of the disputed information "could reasonably be expected to reveal or substantiate" misconduct (using the language of (e) to the note to s 12(2)). However, it accepted that the applicant's concerns regarding the conduct of the criminal proceedings, and his subsequent motivation for seeking access to information, are personal factors that add weight to the public interest considerations in favour of disclosure.
I accept the respondent's submissions that the evidence before me does not support a finding that disclosure of the disputed information could reasonably be expected to reveal or substantiate misconduct by the NSWPF.
In my view, the considerations under s 12 of the GIPA Act and the applicant's personal factors should be given moderate weight.

Public interest considerations against disclosure

The respondent argued that the following public interest considerations against disclosure apply to the information in the Affidavit of DSC Kennedy and the sound recordings: 1. Disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: cl 1(d) of the table to s 14(2); 2. Disclosure could reasonably be expected to prejudice the effective exercise of the agency's functions: cl 1(f) of the table to s 14(2); 3. Disclosure could reasonably be expected to reveal information supplied to an agency in confidence: cl 1(g) of the table to s 14(2); 4. Disclosure could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law: cl 2(b) of the table to s 14(2); 5. Disclosure could reasonably be expected to reveal the personal information of individuals: cl 3(a) of the table to s 14(2); 6. Disclosure could reasonably be expected to contravene an Information Privacy Principle under the Privacy and Personal Information Protection Act 1998: cl 3(b) of the table to s 14(2); and 7. With respect to personal information about a child, it would not be in the best interests of the child to have it disclosed: cl 3(g) of the table to s 14(2). 8. Clause 6 - Contravene provision prohibiting disclosure of information
Clause 6(1) of the table to s 14(2) of the GIPA Act provides that it is a public interest consideration against disclosure: 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.
The respondent argued that cl 6 applies and that disclosure of this disputed information would contravene the prohibition against disclosure of "protected information" under s 40 of the SDA, because: 1. The Affidavit was used to apply for the SDW, as required by s 17 of the SDA, and it is therefore information relating to an application for a SDW: s 39 of the SDA; and 2. The s 44 report is information relating to the issue of or existence of a SDW.
I note that s 40(1) of the SDA provides that it is an offence to intentionally, knowingly or recklessly use, communicate or publish protected information, with a maximum penalty of imprisonment for 2 years. Section 40(2) creates an aggravated form of offence for which the maximum penalty is imprisonment for 7 years. Section 40 is therefore a provision that prohibits the disclosure of information for the purposes of cl 6 of the table to s 14(2) of the GIPA Act.
Sections 40(3) - (9) of the SDA set out a series of exceptions to this prohibition against disclosure, but I am satisfied that none of these exceptions or exclusions apply to this disputed information. The terms and scope of the exceptions are relevant to the Tribunal's consideration of the policy underlying the prohibition against disclosure and the extent to which the prohibition on disclosure is subject to exceptions may assist in identifying the policy implications behind the provision: Clarke v Blacktown City Council [2013] NSWADT 36.
Clause 6(2) provides that the public interest consideration "extends to consideration of the policy that underlies the prohibition against disclosure". I accept the respondent's argument that disclosure of the disputed information would be contrary to the strict and limited regime under the SDA for dealing with information obtained through the use of and relating to surveillance devices. The policy underlying s 40(1) of the SDA is apparent when regard is had to the broader text, structure and context of the SDA.
Restricting the use, publication and communication of information obtained through the use of surveillance devices was identified as one of the objects of the SDA: Surveillance Devices Bill 2007, Explanatory Note, p 1 (as referred to in the decisions in Cheung and FDY). The strictness of the SDA regime is also reflected in the serious penalties available for breaches of s 40(1).
I accept the respondent's argument that with the exception of the consent provision (s 40(5) of the SDA), there are three classes of exceptions in ss 40(3) - (9), namely: (1) exceptions for the purposes of law enforcement activities; (2) exceptions to protect the safety of persons or property; and (3) exceptions in relation to the conduct of public officers.
I accept the respondent's argument that the limited nature of these exceptions demonstrates an intention to strictly control information obtained through and relating to a surveillance device.
Based on the decision of Hall J in Voitenko, the underlying policy concerns regarding the prohibition in s 40 of the SDA are: (1) to control and minimise the intrusion into the privacy of individuals; and (2) to preserve the integrity and efficacy of investigations by law enforcement agencies.
The respondent argued that disclosure of the disputed information under the GIPA Act would be contrary to the policy concerns underlying s 40 of the SDA for the following reasons: 1. Disclosure of the Affidavit of DSC Kennedy would reveal the personal information of a number of individuals who are referred to in it, often in connection with matters that are highly sensitive in nature. Disclosure of that information under the GIPA Act, with no conditions on how the information may be used or disclosed, would constitute an egregious intrusion on the privacy of those individuals; and 2. Disclosure of that Affidavit and the s 44 report would have the effect of revealing NSW Police investigative methodologies and the nature of deliberations occurring in the context of an investigation process. Individuals armed with information of this nature may take steps to evade or undermine police investigations. Disclosure of information of this nature could reasonably be expected to undertime or subvert investigations of this nature by NSWPF.
I accept those submissions.
In Cheung, Senior Member Ransome determined that considerable weight should be given to this public interest consideration against disclosure. I agree with that determination.
The respondent argued that cll 1(d) and 1(g) of the table to s 14(2) of the GIPA Act apply to the disputed information. a relatively abstract analysis is required to determine whether cl 1(d) applies, as the relevant issue is predictive about a future consequence from unspecified persons based on a hypothetical scenario: see Camilleri at [26] and Searle at [56].
In Collins, Senior Member Montgomery observed that the relevant elements of cl 1(d) are: (1) the information was obtained in confidence; (2) disclosure of the information could reasonably be expected to prejudice the supply of such information to the Agency in future; and (3) the information facilitates the effective exercise of the Agency's functions.
In relation to limb (1), the Appeal Panel outlined the general approach to determining whether or not information is confidential information in Camilleri and stated: 33. In our view, the question of whether the information supplied is 'confidential information' must 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. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service.
I accept the respondent's argument that these matters are established by the evidence of D/I Leis and that the community's expectations regarding the confidentiality of information are consistent with the legal framework within which members of the NSWFP operate: see cl 76(1) of the Police Regulation 2015.
D/I Leis also gave evidence about additional protections that are in place for matters involving allegations of sexual assault, and offences against minors: see Pt 5 of the Criminal Procedure Act 1986.
I note that in Simring, the Supreme Court found that when a person speaks with police in relation to a criminal offence and reveals sensitive matters, that person expects that statements made will only be used for the purpose of Court proceedings, and not otherwise. Similarly, the Tribunal has confirmed the confidentiality of information of this nature when considering applications to access information on numerous occasions: see Camilleri; AEZ at [71]; Sherman; DYD; Danis; Gabriel; Medlyn; DTB; DY; Campbell; and Eggleton.
In determining whether disclosure of information of this nature could reasonably be expected to prejudice the future supply of such information to the NSWPF, 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, but whether the agency will be able to obtain such information in the future: Camilleri at [38].
Further, in Leydon, the Tribunal observed that it should not just look at the issue in isolation, but also examine the issue to determine whether the agency's ability to obtain confidential information in future would be impaired. I accept D/I Leis' evidence in relation to these matters.
I note that the Tribunal has accepted that disclosing confidential information supplied to the NSWPF would prejudice the future supply of such information: see Smith at [39]; DYD; Danis; EGR; Leydon; Gabriel; Dezfouli; and Medlyn. Based on the evidence of D/I Leis, I am satisfied that information supplied in confidence to the NSWPF by members of the community is crucial to the effective exercise of NSWPF investigative, law enforcement and community protection functions.
It follows that I am satisfied that cll 1(d) and 1(g) of the table to s 14(2) of the GIPA Act have been established.
The respondent argued that cl 2(b) of the table to s 14(2) of the GIPA Act applies to the disputed information. Clause 2(b) is directed at preserving the integrity of intelligence gathering as a method of preventing contraventions, or possible contravention, of the law.
I accept the respondent's argument that the Tribunal has found that cl 2(b) (and its predecessor under the former Freedom of Information Act 1989 (now repealed)) applies to information that reveals, or confirms, lawful police methods and procedures for preventing or detecting possible contraventions of the law: see Desmond at [17]; RT at [35]-[36]; UC at [32]-[33]; Campillo at [19]-[21]; and Miskelly.
I note that cl 2(b) applies where it reveals information about procedures which have some element of secrecy to them. See XZ (disclosure would reveal information relating to methodology in police pursuits); Betzis (details of forensic and investigative techniques, methodologies and protocols used by police); Klaric; and Dezfouli (police methodology for investigating a white powder).
In Betzis, the Tribunal held that cl 2(b) was a consideration against disclosure of information which may only appear to confirm whether a particular search was undertaken, communication made or forensic test conducted, as such information could be used to deduce whether information had been supplied to, or come to the attention of police, or to confirm particular techniques or methodologies employed (at [59]). In ECN, the Tribunal found that cl 2(b) applies as a consideration against disclosure of information which identifies liens of inquiry, additional matters for investigation and broader operational issues.
I am satisfied that cl 2(b) has been established based on the evidence of D/I Leis.
The respondent argued that cll 3(a), 3(b) and 3(g) of the table to s 14(2) of the GIPA Act apply to the disputed information.
Based upon my perusal of the disputed information during the confidential hearing, I am satisfied that these records contain the personal information of individuals other than the applicant and that the redaction of the names and identifying details of those individuals will not overcome the application of cl 3(a), particularly as the applicant is already aware of their identities.
I am also satisfied that cl 3(b) has been established and that disclosure of the personal information would contravene ss 18 and 19 of the PPIPA.
I accept the respondent's argument that none of the conditions for the permitted disclosure of personal information apply in this matter and that disclosure under the GIPA Act would not be a disclosure related to the purpose for which the information was collected. Further, based upon the evidence of D/I Leis, I am satisfied that it could not be expected that the individual(s) concerned would be aware of the possibility of such disclosure, or that they would not object to such disclosure. Further, disclosure is not necessary to prevent or lessen a serious and imminent threat to life or health of an individual (which would be the only permitted purpose for disclosure of information related to sexual activities).
In addition, I accept that certain information in the Affidavit of DSC Kennedy relates to an individual who was a minor at the relevant time. The information is of such a nature that I do not consider that it would be in the best interests of that individual for the information to be disclosed under the GIPA Act.
Therefore, I am satisfied that cl 3(g) applies and I note that the Tribunal has determined that this consideration may apply even where the person to whom the information relates is no longer a child: see Medlyn and Danis.
In my view, the public interest considerations raised by the respondent are compelling and that they should be afforded significant weight.

Balancing the public interest

In balancing the public interest, I am satisfied that the public interest considerations against disclosure of the Affidavit of DSC Kennedy and the s 44 report outweigh those in favour of disclosure and that there is an overriding public interest against disclosure of this information.

Conclusion

For these reasons, I am satisfied that the correct and preferable decision is to affirm the decision under review.

Order 1. The decision under review is affirmed. 2. Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked "NOT FOR PUBLICATION", other than to the respondent (the Commissioner of Police, NSW Police Force) is prohibited.

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: 05 April 2024

Freedom of Information Act 1989(NSW)

Police Regulation 2015(NSW)

Government Information (Public Information) Act 2009(NSW)

Telecommunications (Interception & Access) Act 1979(Cth)

(Cth), Surveillance Devices Act 2004(Cth)

At a glance

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Judgment (38 paragraphs)

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Legislation Cited (19)

Cases Cited (47)