On 24 June 2019 the applicant sought access to the following information under the Government Information (Public Access) Act 2009 (the GIPA Act):
1. "Access to information of any Events or entries on the Police Computer system relating to myself dating after January 2018. In particular the details relating to Event E66771024 dated 15/3/18.
2. Access to information relating to a Police investigation about myself by Senior Constable Michelle Prestage of Katoomba Police in 2018. The investigation relates to the alleged sending of an email or emails.
3. Access to information as to why Police were attending locations including Penrith, Nowra, Brookvale, Castle Hill, Sutherland and Campbelltown on the direction or request of Katoomba Police on various dates in 2018."
On 28 May 2019 the respondent made its determination which was to release part of the entries referred to in (1) and to refuse access to the information in (2) and (3).
The public interest considerations relied upon to refuse access were clauses 1(d), 2(a), 2(b) and 3(a) of the table to s 14 of the GIPA Act.
[2]
Relevant legislation
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.
There is a general public interest in favour of the disclosure of government information (s 12). Other public interest considerations in favour of the disclosure of government information may be taken into account, and they are not limited.
The public interest considerations against disclosure which may be taken into account in conducting the determination, are limited to those in Schedule 1 and the Table to s 14 of the Act (s 14(1) and (2)).
In determining where the public interest lies, the Tribunal must determine whether there are public interest considerations against disclosure and whether, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13).
Section 55 provides:
"55 Consideration of personal factors of application
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person."
Section 60 of the GIPA Act provides:
"60 Decision to refuse to deal with application
(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):
(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,
(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,
(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989,
(c) the applicant has failed to pay an advance deposit that is payable in connection with the application,
Note. See section 70.
(d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order,
(e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is:
(i) a party to current proceedings before a court, and
(ii) able to apply to that court for the information."
[3]
Confidentiality
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."
Section 64 of the Civil and Administrative Tribunal Act 2013 provides:
"64 Tribunal may restrict disclosures concerning proceedings
(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),
(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.
(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).
(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person."
I conducted part of the proceedings in the absence of the applicant pursuant to s 107(2) of the GIPA Act and have made orders prohibiting the publication or disclosure of that evidence. Sections of these reasons which contain information which is subject to these orders or would disclose information which is subject to an overriding public interest against disclosure is marked "Not for publication" and may not be disclosed to the public or the applicants.
[4]
The issues for determination
At the hearing there were initially five documents in issue - E71720616, E66548935, E70749686 (and associated documents), E66771024 and E304473294. E70749686 and associated documents were produced by the NSW Police on 28 October 2019 in response to a subpoena issued at the request of the applicant in the Local Court and orders were made for photocopy access and the respondent submitted that the Tribunal could refuse to deal with that part of the application pursuant to s 60(1)(d). During the hearing the applicant stated that the produced information was no longer in issue.
With respect to the remaining information, the respondent relies on the following public interest considerations against disclosure contained in the GIPA Act:
1. Clause 1(d) of s 14 - disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
2. Clause 2(a) of s 14 - disclosure of the information could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,
3. Clause 3(a) of s 14 - disclosure of the information could reasonably be expected to reveal an individual's personal information.
The word "prejudice" in this context should be given its ordinary meaning of "cause detriment or disadvantage" (McLennan v University of New England [2013] NSWADT 113).
It should be noted that s 14 provides that the relevant prejudice may be in a particular case or generally.
The words "could reasonably be expected" in s 14 have the meaning that there must be a reasonable expectation (not fanciful, imaginary or contrived) that the disclosure could have the prescribed effect (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590).
Clause 1 of Sch. 4 defines "disclose" as:
"disclose information includes make information available and release or provide access to information."
"Disclose" is used in clause 1(d) - "reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given".
The role of the Tribunal is to determine what is the correct and preferable decision having regard to the material before it (s 63(1)).
The onus is on the respondent to demonstrate that the disclosure could reasonably be expected to have the nominated effect.
The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].
[5]
Whether disclosure could reasonably be expected to prejudice the supply of confidential information which facilitates the exercise of an agency's functions - clause 1(d)
The respondent relies on this public interest consideration in relation to all the information and states that it includes responses and statements made in confidence to police to assist with a criminal investigation. This cooperation is essential to police in carrying out their core function of preventing and detecting crime and has been recognised by the courts (eg Simring v Commissioner of Police [2009] NSWSC 270 at [69]). People who provide information to police trust that it will be kept in confidence unless used for court proceedings or with their authority.
In Raven v The University of Sydney [2015] NSWCATAD 104 Senior Member Lucy stated:
"There must be some evidentiary basis from which the Tribunal may infer that disclosure of the information sought could reasonably be expected to prejudice the supply to an agency of confidential information. It is not sufficient for the respondent to make an assertion that this is the case."
The Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 observed, at [33], that:
"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". [52-55]
Sergeant Buttel gave evidence in a confidential statement and hearing.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The applicant submitted that the respondent's submissions on this consideration against disclosure were general and did not relate specifically to this case. The respondent submitted, in reliance on Camilleri, that in examining this as a consideration against disclosure, it should be considered at a broad operational level rather than with reference to the particular case and facts of this application. The respondent's submission is correct, the consideration applies to the effect on confidential information at a general operational level.
I am satisfied that the withheld information provided to police which is contained in the COPS records was provided on a confidential basis and was confidential in nature. I am also satisfied that disclosure of the information could reasonably be expected to prejudice the supply of confidential information which facilitates core functions of the police, namely the investigation and prevention of crime, the support of victims and the promotion of safety in the community.
[6]
Whether disclosure could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant - clause 2(a)
The respondent relies on this consideration and submits that release of the information would reveal the identity of a police informant or informants. A guarantee of anonymity is essential to people's willingness to provide information to the police. This was recognised in Miskelly v Secretary Department of Education [2019] NSWCATAD 48 in which the Tribunal held at [127] :
"If informants were not confident that their identities would be protected it could reasonably be expected that they would be reluctant in future to supply confidential information… Others would be likely to be deterred from reporting if identity details were disclosed."
In NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel of the Administrative Decisions Tribunal held at [47] that an "informant" is not restricted to 'police informers' or people who might be involved in the conduct of interest, but bears a wider connotation of a person who gives information.
The applicant says that he already knows the identity of the informant(s) or some of them. The respondent submits that even if the applicant does know their identity, it does not mean that their identity has already been revealed. Disclosure of the information would still reveal the identity of one or more informants because their identity has not so far been publicly disclosed. Moreover, the confidential evidence referred to above supports a finding that informants both generally and in this case would be discouraged from providing essential information to police if information which could reveal their identity was disclosed.
Clause 1 of Sch 4 of the GIPA Act defines "reveal" as follows:
"reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."
It has been held that information disclosed on a confidential or otherwise non-public basis could not be said to be revealed in that sense (Camilleri at [33-34]; Woolley v Lismore City Council [2013] NSWADT 10; Collins v Department of Finance [2018] NSWCATAD 60).
The applicant submitted that the considerations raised by the respondent were general and did not apply to this specific case.
In my view the respondent's submissions are correct and it is therefore not relevant if the applicant knows any or all of the informants.
[NOT FOR PUBLICATION]
I am satisfied that disclosure of the information could reasonably be expected to reveal the identity of one or more informants and also discourage such informants from providing information to police in the future.
[7]
Whether disclosure of the information could reasonably be expected to reveal an individual's personal information - 3(a)
The respondent submits that this public interest against disclosure applies to all the information.
"Personal information" is defined in clause 4 of Schedule 4:
"means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion."
The applicant said that he did not seek personal information of other witnesses or informants who were not his ex-wife, or parents-in-law, and he already knew their personal information from his relationships with them.
I have reviewed the information withheld and I am satisfied that disclosure of the information would reveal the personal information of a number of individuals. To the extent that it is relevant, I am of the view that even if the applicant is aware of some of this information through the subpoena, disclosure would still "reveal" the personal information because it has not been made publicly known, for the reasons stated above.
[NOT FOR PUBLICATION]
[8]
Personal factors
The applicant stated that when his stepdaughter had applied to join the NSW Police in 2017 she was advised that she should complete a declaration in relation to her association with him. Her application was later refused. The applicant stated that he wished to obtain an understanding of why this had occurred and what his step daughter needed to disclose in order to improve her chances of being admitted.
He learned that his criminal record had a warning on it dated 15 March 2018:
"Has hatred of police, ex member terminated in 1998."
He had also learned that police were saying that they had a "hit list" allegedly made by him, which he did not understand. He did not agree that he hated police. His motives for this application including wanting to know why a warning would be placed on his record in 2018 when the last occasion when he had a dispute with police was in 2001. He referred to a newspaper article concerning his complaint that he was assaulted by police at the Sydney Cricket Ground and that police had interfered with the CCTV of the incident.
He suspected that the recent interest in him was because of a more recent dispute with his ex-wife and parents-in-law who had made allegations about him to police.
He stated that he was formerly married and the parents of his ex-wife were the founders of a business which he also joined. Following his divorce he ceased to assist his former parents-in-laws' business and it closed down in 2018. He said that his former parents-in-law and his ex-wife blamed him for this.
He also stated that they had alleged that he had committed a number of criminal acts which he stated were vindictive and fabricated allegations. He alleged that Sgt Buttel was an acquaintance of his ex-wife and had put comments on the COPS database indicating that he was involved in serious criminal activities. His ex-wife made complaints about him to Sgt Buttel and he alleged that Sgt Buttel was pursuing him for personal reasons. He wanted to address the unfounded allegations and make Sgt Buttel answerable for what she had recorded about him.
[9]
Balancing exercise
The considerations in favour of disclosure in my view include:
1. The general public interest in favour of disclosure of government information;
2. That in some respects the information is the applicant's own personal information;
3. The personal factors concerning his daughter and his desire to have access to the information to assist her, under s 55(1)(a) and (b).
The public interest factors against disclosure are:
1. Under s 55 (1)(b) and (3), the personal motivation of the applicant in relation to the information affected by clauses 2(a) and 3(a) only. In this regard I note the applicant's desire to make Sgt Buttel answer for actions he regards as victimising him.
2. Under s 55(1)(a), the identity of the applicant and his relationships with other persons named in the information. I note that he is in a dispute with his ex-wife and her parents and that the relationship is acrimonious.
[NOT FOR PUBLICATION]
In addition the public interest considerations under clauses 1(d), 2(a) and 3(a) of the Table to s 14 apply to the information.
In weighing up the public interest considerations for and against disclosure, I consider that the public interest considerations against disclosure are serious and concerning. They carry significant weight. The public interest considerations in favour of disclosure are important but not as significant, in my view, as the potential harm which could be caused by disclosure. In my view the correct decision is to affirm the decision under review.
[10]
Orders
1. The decision under review is affirmed.
2. Pursuant to s 64(1)(b) and (d) of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant of the paragraphs of these reasons marked "Not for publication" is prohibited.
3. Pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act the publication or disclosure to the applicant of the confidential evidence and submissions filed by the respondent in these proceedings and the record of the confidential hearing, is prohibited.
[11]
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: 13 February 2020