The applicant is a former member of the New South Wales Police Force ("NSWPF"). He seeks administrative review of a decision of the respondent to refuse access to information sought by him under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act").
For the reasons set out below, that decision is affirmed.
[2]
Background
The applicant was the subject of a complaint concerning his conduct as a police officer. That complaint was the subject of an investigation under Pt 8A of the Police Act 1990 (NSW) ("Police Act").
On 24 August 2020, the applicant lodged an access application with the respondent seeking the following information:
"Complete complaint file number P1400136 2014 Telephone threats. All complaint documents, recordings or other media associated with the complaint file pertaining to myself."
On 21 September 2020, the respondent decided to:
1. provide the applicant with access to some of the information sought, pursuant to s 58(1)(a) of the GIPA Act; and
2. refuse to provide access to the remaining information on the basis that there was an overriding public interest against disclosure of that information, pursuant to s 58(1)(d) of the GIPA Act.
On 11 November 2020, the applicant applied to the Information Commissioner for review of the respondent's decision.
On 5 February 2021, the Information Commissioner recommended that the respondent make a new decision by way of internal review.
On 26 March 2021, and following an internal review, the respondent made a new decision and decided to:
1. provide the applicant with access to some of the information sought, pursuant to s 58(1)(a) of the GIPA Act;
2. refuse to provide access to some of the information on the basis that there was a conclusive presumption of an overriding public interest against disclosure of the information, pursuant to s 58(1)(d) of the GIPA Act; and
3. refuse to provide access to the remaining information on the basis that there was an overriding public interest against disclosure of that information, pursuant to s 58(1)(d) of the GIPA Act.
On 30 March 2021, the applicant applied to the Tribunal for administrative review.
[3]
Jurisdiction
The respondent's decision to refuse to provide access some of the information sought by the applicant in his access application is a decision which is reviewable by the Tribunal: s 80(d) of the GIPA Act. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW).
[4]
The Tribunal's task
The Tribunal's task, briefly stated, is to decide what the correct and preferable decision is as to whether access to the withheld information should be provided, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 of the ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].
The material before the Tribunal may include material not before the original decision-maker and the Tribunal's decision is focused on the present position, not the position at the time of the original decision: s 63 of the ADR Act; YG v Minister for Community Services [2002] NSWCA 247 at [25]; Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 at [45]; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].
[5]
Material before the Tribunal
The material before the Tribunal is:
1. an affidavit of Chief Inspector Allan Treadwell sworn 3 June 2021;
2. a confidential affidavit of Chief Inspector Treadwell of the same date;
3. an affidavit of Chief Inspector Marc Holgate sworn 4 June 2021;
4. a confidential affidavit of Chief Inspector Holgate made on 30 July 2021;
5. a bundle of documents titled "OPEN - Schedule A Documents" being a bundle of documents containing information withheld from the applicant and redacted;
6. an unredacted copy of the bundle titled "OPEN - Schedule A Documents";
7. a confidential bundle of documents titled "Schedule B Documents" containing documents withheld from the applicant in their entirety;
8. a statement of the applicant dated 23 June 2021; and
9. written submissions on behalf of the respondent, with attached documents;
10. written submissions on behalf of the applicant.
The items described in subparagraphs (2), (4), (6), (7) and (8) above were received by the Tribunal on a confidential basis.
Chief Inspector Holgate is:
1. a Chief Inspector of Police employed by the NSWPF, and has been a police officer since October 1992;
2. and has since August 2019 been, the Professional Standards Manager of the Professional Standards Command ("PSC") of the NSWPF. The PSC is responsible for maintaining standards of professional conduct and discipline across the NSWPF, including the conduct of particular investigations into police misconduct, preparing policies and procedures governing the management of, and investigation into, complaints, and the provision of advice in relation to disciplinary action to be taken as a consequence of misconduct by members of the NSWPF.
Chief Inspector Holgate was cross-examined by the applicant. He was unshaken in cross-examination and the Tribunal accepts his evidence. That evidence is considered further below.
The Tribunal has had regard to the matters set out in the applicant's statement of evidence. However, the matters set out therein are not relevant to the matters that the Tribunal must decide, save to a very limited extent and that limited extent forms part of the applicant's open case.
[6]
The applicable law
The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act which provides:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 9 (1) of the GIPA Act provides:
9 Access applications
(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
The respondent bears the onus of establishing that its decision is justified: s 105(1) of the GIPA Act. That means the respondent must, first, identify the information which the respondent contends should be withheld from the applicant because the public interest considerations against disclosure of that information outweigh those in favour; and secondly justify the decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].
In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane in this proceeding:
5 Presumption in favour of disclosure of government information
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
…
12 Public interest considerations in favour of disclosure
(1) There is a general public interest in favour of the disclosure of government information.
(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Note: The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
(3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
…
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
…
14 Public interest considerations against disclosure
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
…
Table
1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
…
(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process or government or an agency,
(f) prejudice the effective exercise by an agency of the agency's functions,
…
(h) prejudice the conduct, effectiveness or integrity of nay audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) reveal an individual's personal information,
...
…
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
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.
Schedule 1 of the GIPA Act contains as far as is presently relevant:
1. Overriding secrecy laws
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information, the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence:
....
Police Act 1990 - Section 169A (Identity of complainant not to be disclosed)
...
As the above provisions demonstrate, the GIPA Act creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 GIPA Act), and the applicant has a legally enforceable right to the government information it seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 GIPA Act).
There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour for disclosure (s 13 GIPA Act).
The presence of particular considerations against disclosure, being those set out in Sch 1 of the GIPA Act, is sufficient to compel the conclusion that there is an overriding public interest against disclosure such that the information is not to be disclosed (s 14(1) GIPA Act).
However, absent a Sch 1 consideration against disclosure the Tribunal's task is to consider and weigh in the balance:
1. the public interest considerations in favour of disclosure, which are unlimited and include:
1. the general public interest in favour of disclosure (s 12(1) GIPA Act);
2. the examples listed in the note to s 12(2) of the GIPA Act; and
1. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act.
In undertaking this balancing task the Tribunal is entitled to take into account the "personal factors of the application" as factors in favour of disclosure (s 55 of the GIPA Act). The personal factors of the application are described in s 55 as:
1. the applicant's identity and relationship with any other person;
2. the applicant's motives for making the access application; and
3. any other factors particular to the applicant.
The Tribunal is also entitled to take into account personal factors of the application as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the withheld information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act.
In the present case, the respondent does not rely upon cll 2,4 or 5 of the table in s 14 of the GIPA Act, but does rely upon cl 3. Thus, the personal factors of the application may be taken into account as factors against disclosure of the withheld information when considering whether disclosure of that information could reasonably be expected to have the effect described in cll 3.
The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: see Transport for NSW v Searle [2018] NSWCATAP 93 at [104].
[7]
Section 14(1) and cl 5 of Sch 1 - legal professional privilege
The applicant did not press for access to the information which was withheld on the basis of legal privilege, and it is unnecessary to consider this further.
[8]
Section 14(1) and cl 1 of Sch 1 - overriding secrecy laws - Sch A, pages 2, 8, 9, 10, 12, 13, 14, 21, 23, 29, 33, 36, 37, 38, 41, 45, 46, 47, 52 - 58 and 61 - 66; Sch B pages 5 - 14 and 18
Section 14(1) of the GIPA Act provides that there is a conclusive presumption of an overriding public interest against disclosure of any of the government information described in Sch 1 of the GIPA Act. Sch 1 includes:
1. Overriding secrecy laws
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information, the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence:
....
Police Act 1990 - Section 169A (Identity of complainant not to be disclosed)
...
Section 169A of the Police Act provides:
169A Identity of complainant not to be disclosed
A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made -
(a) in accordance with guidelines established by the Commissioner, or
(b) with the consent of the complainant, or
(c) in accordance with a requirement of or made under this or any other Act, or
(d) for the purposes of any legal proceedings before a court or tribunal.
Section 121 of the Police Act defines a complainant as "a person by whom, or on whose behalf, a complaint is made".
Chief Inspector Holgate provided evidence in his confidential affidavit concerning this claim.
[NOT FOR PUBLICATION]
The applicant submitted that the name of the applicant had already been disclosed in an open document provided to the Tribunal (and the applicant) and as such was available to the general public. However, in determining whether cl 1 of Sch 1 operates it is irrelevant to the Tribunal's determination whether the applicant (or anyone else) knows the identity of the complainant: see also Rae v Commissioner of Police [2020] NSWCATAD 189 at [49].
Thus, to the extent that the information withheld is information as to the identity of the complainant, there is a conclusive presumption of an overriding interest against its disclosure and it is not to be disclosed.
[9]
Section 14(2) - claim that the public interest considerations against disclosure outweigh those in favour of disclosure
The remaining withheld information has been held on the basis of a claim that the public interest considerations against disclosure outweigh those in favour of disclosure. Thus it is necessary to consider the public interest consideration for and against disclosure and balance them against each other.
[10]
Public interest considerations in favour of disclosure
There is a general public interest in favour of the disclosure of government information: s 12(1) of the GIPA Act.
The applicant submitted that two other public interest considerations apply.
The first is that disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. The Tribunal accepts that this is a public interest consideration in favour of disclosure.
The second is that disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. The Tribunal does not consider this to be a public interest consideration in favour of disclosure. The suggested misconduct is alleged to have occurred in the act of releasing some of the information in response to the access application and it is unlikely that the underlying information will be relevant to the act of release, which necessarily post-dates the underlying information.
To the extent that the information is personal information of the applicant, this is also a public interest consideration in favour of disclosure.
As noted above, it is also appropriate into account the "personal factors of the application" as matters in favour of disclosure. Those matters are described in s 55 of the GIPA Act as: the applicant's identity and relationship with any other person; the applicant's motives for making the access application; and any other factors particular to the applicant.
The applicant's position is that he has been deprived of three medals that would have otherwise been awarded to him if not for the complaint. He seeks the information sought in the access application so that he can petition for the awarding of those medals to him. The Tribunal takes into account these matters as personal factors of the application in favour of disclosure.
[11]
Public interest considerations against disclosure
As noted above, the only public interest considerations against disclosure which arise for consideration in this proceeding are those listed in the table in s 14 of the GIPA Act.
The clauses in the Table upon which the respondent relies are cll 1(d), (e), (f) and (h) and 3(a).
Each of these public interest considerations against disclosure includes in its chapeau the phrase "… could reasonably be expected to have one or more of the following effects …". The principles to be applied in considering whether disclosure of information "could reasonably be expected" to have a particular effect were summarised by an Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows:
"68. There was no dispute between the parties that:
…
(2) The words "could reasonably be expected" are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] -
... when their Honours said, as they did, that the words required 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 certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act."
(3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22].
(4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].
(5) "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
(6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26]."
Whether disclosure of particular information "could reasonably be expected to" have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]:
"[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.
…
[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 an Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]:
"Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind:
(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;
(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;
(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."
The Tribunal has had regard to the confidential and open evidence of Chief Inspector Holgate concerning the operation of the clauses relied on by the respondent upon the withheld information. As noted above, that evidence is accepted.
Clause 1(d) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
The expression "reasonably be expected to have the effect" has been discussed above.
Clause 1(d) also uses the word "prejudicing". In this regard, "prejudice" bears its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
The functions of the NSWPF include:
1. the following, as set out in s 6(2) - (3) of the Police Act:
(2) The NSW Police Force has the following functions -
(a) to provide police services for New South Wales,
(b) to exercise any other function conferred on it by or under this or any other Act,
(c) to do anything necessary for, or incidental to, the exercise of its functions.
(3) In this section -
[13]
"police services" includes -
(a) services by way of prevention and detection of crime, and
(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and
(c) the provision of essential services in emergencies, and
(d) any other service prescribed by the regulations.
1. complaint and misconduct handling functions under Part 8A of the Police Act: Applicants v Commissioner of Police [2015] NSWCATAD 22 at [70]. This includes s 131 which provides:
131 Dealing with misconduct matters
(1) As soon as practicable after the Commissioner receives (or becomes aware of) a misconduct matter, and at any time during a police investigation of a misconduct matter, the Commissioner may (except as provided by subsection (3)) decide as follows -
(a) to investigate or otherwise deal with the misconduct matter under this Part,
(b) to refer the misconduct matter to the LECC for consideration of whether or not it is to be investigated by the LECC or otherwise dealt with under the Law Enforcement Conduct Commission Act 2016,
(c) to take no further action under this Part with respect to the misconduct matter.
(2) A decision under subsection (1) may be made in respect of the whole or any part of a misconduct matter.
(3) The Commissioner must refer a misconduct matter received by the Commissioner or of which the Commissioner becomes aware that alleges, indicates or suggests that conduct of the Commissioner or a Deputy Commissioner is (or could be) officer misconduct to the LECC unless the misconduct has been referred to the Commissioner by LECC.
(4) The Commissioner is to take into account any misconduct matters management guidelines or recommendation of the LECC in deciding how to investigate or deal with the misconduct matter.
(5) If the Commissioner decides to refer a misconduct matter to the LECC, the Commissioner may recommend how the misconduct matter should be dealt with by the LECC.
(6) If the Commissioner decides that a misconduct matter that is a complaint does not need to be investigated, the Commissioner must notify the complainant of the decision and the reasons for it.
(7) Additional information from a complainant, and any existing information relevant to a misconduct matter to which the Commissioner can readily obtain access, may be used in making a decision concerning a misconduct matter.
(8) The making of a decision under this section is not an investigation of the misconduct matter to which the decision relates.
(9) The Commissioner may investigate or otherwise deal with any notifiable misconduct matter pending the making of a decision by the LECC under section 44 of the Law Enforcement Conduct Commission Act 2016.
"Misconduct matter" is defined in s 121 of the Police Act as meaning "a complaint" or "misconduct information". "Complaint" is there defined in the following terms:
"complaint" means an allegation that any conduct of -
(a) an administrative employee (whether or not named or identified) is (or could be) conduct that falls within the description of administrative employee misconduct or officer maladministration, or
(b) a police officer (whether or not named or identified) is (or could be) conduct that falls within the description of police misconduct or officer maladministration, or
(c) the NSW Police Force is (or could be) conduct that falls within the description of agency maladministration.
The evidence of Chief Inspector Holgate included evidence that:
1. it is a function of the NSWPF to investigate complaints about police officers. Part 8A of the Police Act sets out comprehensively the manner in which complaints regarding the conduct of police officers are to be investigated;
2. investigations under Part 8A of the Police Act are particularly sensitive and must be treated confidentially. The statutory provisions under Part 8A, coupled with the NSWPF's policies and procedures, provide extensive and comprehensive rules for the way in which complaints are dealt with. These rules are fundamental to the integrity of the investigation process. Chief Inspector Holgate drew the Tribunal's attention to:
1. s 169A of the Police Act, which strictly prohibits members of the NSWPF from disclosing the identity of a complainant, except in particular circumstances;
2. s 170 of the Police Act, which provides that all documents brought into existence for the purposes of Part 8A are privileged and may not be used as evidence except in specified legal proceedings;
3. cl 54 of the Police Regulation 2015 (''Police Regulation''), which also imposes non-disclosure obligations on police officers who receive complaints; and
4. cl 76 of the Police Regulation, which prohibits, without proper authority, the disclosure of any information which comes to the knowledge of a member of the NSWPF in his or her official capacity;
1. the NSWPF regularly receives a variety of confidential information in connection with complaint matters, including:
1. confidential complaints about police officers;
2. evidence from persons or entities that assists in establishing whether or not a police officer has engaged in misconduct; and
3. intelligence and observations from persons that may, upon further investigation, establish that a police officer has been, or may be, engaged in, misconduct;
1. complaints made about the conduct of police officers are always treated with strict confidence. The NSWPF treats all information that it receives in an investigation, including the complaint itself, and any evidence or intelligence collated, as strictly confidential. All NSWPF officers, including officers attached to the PSC, are required to do so by the operation of the statutory provisions referred to above and the NSW Police Force Code of Conduct and Ethics;
2. there are also procedures in place to ensure that complaint information is kept confidential. For example, complaint information must be managed so that its physical security is protected at all times. Triage officers are expected to ensure that information is provided to resolution managers/investigators securely. Professional Standards Duty Officers are expected to monitor the security of information handled by resolution managers/investigators and commanders and/or managers are required to ensure that systems and procedures for the safe management and storage of complaint information are established and maintained;
3. there are several reasons why it is essential that complaints about the conduct of police officers are treated with the strictest confidence:
1. in Chief Inspector Holgate's experience over more than 29 years of policing duties, there has been a slow eradication of "blind reporting" due to the NSWPF maintaining confidentiality over complaints about police officer conduct. Historically, and until around the time of the Wood Royal Commission in 1997, and for several years thereafter, it was common for complaints about the conduct of police officers to be anonymous. The Police Integrity Commission was critical of such "blind reporting", as it significantly hampered the ability of any investigative body to conduct a thorough investigation into the complaint. One of the reasons that was identified as a cause of "blind reporting" was a fear held by members of the NSWPF and members of the public that their complaint would not be treated confidentially, and a fear that they would be targeted by an officer if their complaint became common knowledge. Accordingly, the NSWPF protects the confidentiality of complaint information to try and discourage anonymous complaints;
2. complainants are more likely to be forthcoming with information and evidence if they know that confidentiality over their complaint will be preserved. There will always be a fear, both with members of the public and members of the NSWPF, that if they speak up against misconduct, they will be the subject of reprisal action. By preserving confidentiality, this fear of reprisal can be minimised; and
3. there is now a statutory obligation on members of the NSWPF to report misconduct. Since the Wood Royal Commission, there has been an increased emphasis on reporting and addressing police corruption and the organisation (and PSC in particular) has worked tirelessly to try and change the culture of the NSWPF from one where reporting misconduct was frowned upon, to a culture where failing to report misconduct is frowned upon. This shift in culture has occurred to the point where reporting misconduct forms part of the NSW Police Force Code of Conduct and Ethics, and a failure to report misconduct often results in disciplinary action being taken against an employee. It is vital to the preservation of this culture that complaint information is kept confidential, as this supports members of the NSWPF in knowing that, while they are obliged to report misconduct, the preservation of confidentiality minimises the prospect of reprisal action;
1. as a result, it is standard procedure for a complainant's identity to be protected from disclosure, no matter how obvious it may be, because to reveal a complainant's identity may expose a complainant to "pay back" or reprisal action. This would undermine the confidence that complainants and members of the public would otherwise have in coming forward with information about police misconduct, which would prejudice the future supply of such information;
2. even after Part 8A investigations are concluded, it remains important to maintain confidentiality in respect of complaints and complainant identities for the above reasons. The exception is where the complainant consents to the disclosure of their identity under section 169A of the Police Act;
3. a similar position obtains regarding evidence that is collected to determine whether or not an allegation of misconduct against a police officer is made out. This may require evidence to be obtained from other members of the NSWPF, and in some cases, members of the public. Both can be reluctant to come forward for the same reasons as set out above. It is important that such persons feel comfortable in providing evidence that will assist investigators, and it is more likely that they will be comfortable if they are assured that confidentiality over their evidence will be observed;
4. if an investigation of a complaint results in a finding of misconduct against a police officer, it may result in the officer being subject to disciplinary action. If this occurs, procedural fairness requires the officer be provided with the evidence that supports the allegation, so that they may respond. While the complainant's identity will still be withheld in these circumstances (subject to the complainant consenting to their identity being disclosed), in some cases, the disclosure of their evidence will allow the subject officer to deduce the identity of the anonymised complainant. However, the complainant's identity will nonetheless be withheld;
5. if the investigation of a complaint results in a finding that an allegation is unsubstantiated, the NSWPF still does not provide confidential information such as the complaint or the identity of the complainant to the subject officer. In fact, the NSWPF does not provide investigation reports or any investigative materials to police officers that are the subject of unsubstantiated complaints. This assists in preserving the confidentiality of the investigation and the information contained therein. There is also no reason for the officer to need such information if the allegation is unsubstantiated. Providing such information may enliven the possibility of reprisal action being taken by a subject officer against the complainant or a person who gave evidence in connection with the complaint;
6. on the whole, it is essential to withhold complaint information and evidence obtained in connection with a complaint, including the identities of witnesses, from disclosure. If such information were to be disclosed under the GIPA Act, there would be real potential prejudice to the supply of complaint information and evidence in support of investigations in the future, as the NSWPF will not be able to provide persons with the same assurances regarding the preservation of their confidentiality;
7. based on his experience, in his view, if members of the public and NSWPF employees were to become aware that their identities or the evidence they give could be disclosed to the world at large under the GIPA Act, this would deter them from making such complaints or providing evidence in an investigation. Consequently, this would lead to an increase in police misconduct and a decrease in the integrity of the NSWPF, which is clearly not in the public interest. Further, information recorded in misconduct matters contains personal information about individuals who have a valid expectation that their personal information will not be divulged to the public. The effectiveness of the police internal disciplinary system relies on the principle that people can be confident that their personal information held by the NSWPF will be kept confidential;
8. the disclosure of complaint information generally would reveal:
1. the manner in which internal investigations are conducted;
2. how evidence is sourced and collected; and
3. the nature of the deliberative processes involved in handling complaints;
1. if information were disclosed that exposes the manner in which internal investigations are conducted, and how evidence is sourced and obtained, this would have the real potential to prejudice the effective exercise of the NSWPF's investigative functions. In particular, it would allow police officers to understand the NSWPF's investigative techniques, and deploy counter-measures to avoid detection for their misconduct, undermining the very statutory function that the NSWPF is required to undertake in respect of misconduct matters;
2. such revelations would have the real and probable effect of prejudicing the effective exercise of the NSWPF's investigative disciplinary functions. If members of the NSWPF and the public were able to understand the NSWPF's investigative practices and procedures or deliberative processes, then members of the NSWPF could circumvent or obtain an unfair advantage to the detriment of the integrity of the deliberative process, and persons could create malicious evidence against members of the NSWPF;
3. the ability of police officers to evade detection completely, or conversely be the target of malicious allegations, undermines a vital statutory function of the NSWPF to be a police force of the highest integrity. The NSWPF must be able to deploy whatever means and investigative techniques are deemed appropriate thoroughly and properly investigate allegations of misconduct. By maintaining secrecy over the investigative and deliberative process, the NSWPF remains one step ahead of those who engage in misconduct; and
4. there is a real public interest in maintaining a police force that is of the highest integrity. This can only occur with a robust and effective mechanism for investigating and addressing police officer misconduct.
As noted above, cl 1(e) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of revealing a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
The expression "reasonably be expected to have the effect" and prejudicing having been discussed above.
Chief Inspector Holgate gave evidence that:
1. it is critical that members of the PSC, as well as officers carrying out complaint investigations, are able to conduct open and frank deliberations about police officer misconduct and the investigation of such misconduct. The disclosure of the deliberations and decisions of this investigative arm of the NSWPF has the potential to diminish the effectiveness of complaint investigations, which in turn, has the potential to have a detrimental impact upon how police misconduct is addressed. If deliberations and decisions of the NSWPF were to be disclosed, the ability of the NSWPF to engage in frank and honest deliberations would be hindered. To inhibit candid discussion and opinions during deliberations would potentially compromise any findings or conclusions resulting from an investigation;
2. if deliberations concerning the behaviour of the applicant that brought them to notice for their alleged misconduct is revealed, it will have a tendency of establishing for all police officers the type of conduct that may bring them to PSC's notice, and which they can avoid in the future to ensure they are not targeted for engaging in misconduct. This is very similar to operational policing, in the sense that it is important that the NSWPF retains a degree of secrecy over the manner in which we identify police officers who we think are engaged in misconduct, and the manner in which we investigate it, as to identify these matters will only assist police officers in avoiding detection in the future;
3. accordingly, deliberations, opinions and recommendations containing such information should be withheld in the public interest;
4. the disclosure of deliberative processes also has the potential to prejudice such processes in the future because if persons know how the deliberative process is conducted, it may be that they can seek to circumvent or otherwise take unfair advantage of part of that deliberative process that they should not know about, to the detriment of establishing whether or not they have engaged in misconduct.
The applicant submitted that the complaint was finalised in 2014 and as seven years have passed since then, the release of the information could have no effect. Whilst it is unlikely that the release of the information could be expected to affect the investigation of the applicant, cl 1(e) operates more broadly, and it is necessary to consider the potential effect on investigations more generally.
The Tribunal is satisfied that there is a public interest consideration against the disclosure of the information withheld on the basis of cl 1(e). In particular, it is satisfied that disclosure of the information could reasonably be expected to have the effect of revealing deliberations of the NSWPF in such a way as to prejudice future deliberative processes of the NSWPF, by allowing officers to be aware of the approaches taken by the PSC and to frame their conduct accordingly so as to escape detection.
Clause 1(f) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the effective exercise by an agency of the agency's functions. By reason of the matters discussed above with respect to cl 1(d), the Tribunal is satisfied that cl 1(f) applies.
Clause 1(h) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the conduct, effectiveness or integrity of any audit, test, investigation or review conduct by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). Again, the expressions "reasonably be expected to have the effect" and "prejudicing" have been discussed above.
Chief Inspector Holgate provided the following evidence:
1. the disclosure of complaint information generally would tend to reveal the purpose of the investigation that is being conducted, and the manner in which it is being conducted. If the NSWPF has an allegation that needs to be investigated, it is critical that the allegation can be thoroughly tested using whatever means and investigative techniques are deemed appropriate. If the manner in which the investigation is conducted were to be revealed to the world at large, this would enliven the possibility that police officers would seek to circumvent such investigations in future, or otherwise take steps to avoid being detected for their misconduct, knowing the investigative techniques that may be deployed;
2. it is critical that persons are not given the opportunity to understand covert police methodology. It is fair to say that police officers are one step ahead of the curve compared to members of the public when it comes to knowing and understanding what covert police methodology encompasses. It is essential that the NSWPF remain one further step ahead of police officers if they are to successfully and effectively investigate police officer conduct. If this effectiveness were to be diminished, it could result in increased levels of misconduct of police officers across the state, and impact on the integrity of the results of investigations;
3. accordingly, Chief Inspector Holgate is concerned that the disclosure under the GIPA Act of information detailing the manner in which misconduct investigations are conducted, and the specific techniques and methodologies employed, would ultimately undermine the NSWPF's ability to effectively investigate such matters. It is vital for the maintenance of the integrity of the NSWPF's investigative function that detailed complaint file information is not disclosed to the public, where that disclosure may reveal how the NSWPF prevents, detects or investigates contravention of the law by its members.
The Tribunal is satisfied that there is a public interest consideration against the disclosure of information withheld on the basis of cl 1(h). In particular, the Tribunal is satisfied that the release of this information could reasonably be expected to have the effect of prejudicing the conduct, effectiveness or integrity of future investigations, for the reasons set out above with respect to cl 1(d) and (e) above and the reasons described by Chief Inspector Holgate in the previous paragraph.
Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect of revealing an individual's personal information.
"Personal information" is defined in cl 4 of Sch 4 to the GIPA Act in the following way:
4 Personal information
(1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
The expression "reveal information" is defined in cl 1 of Sch 4 to the GIPA Act as meaning to "disclose information that has already been publicly disclosed (otherwise than by unlawful disclosure)".
The applicant submitted that as the complainant's name had been disclosed by the respondent, the respondent cannot rely upon this clause. However, it is unnecessary to consider this argument because to the extent that the complainant's name appears in the withheld information, a conclusive presumption arises that there is an overriding public interest against its disclosure, for the reasons discussed above with respect to cl 1 of Sch 1 of the GIPA Act.
To the extent that the information redacted in reliance upon cl 3(a) relates to persons other than the complainant, that information falls to be considered on a case by case basis. The Tribunal has reviewed these claims and is satisfied that cl 3(a) applies. The Tribunal notes that the respondent did not submit that the Tribunal should have regard to any personal factors of the application as tending against disclosure.
[18]
Balancing exercise
The Tribunal is satisfied that each of the considerations against disclosure - cll 1(d), (e), (f) and (g) and 3(a) applies, for the reasons set out above. In reaching that position, the Tribunal has considered each of the items of information that the respondent has withheld from the applicant and is satisfied that each such item is justifiable by reference to the considerations against disclosure identified for that item of information.
Taking into account the considerations in favour of disclosure described at [40],[42],[44] and [46] above and the considerations against disclosure referable to each item of withheld information, the Tribunal is comfortably satisfied that the considerations against disclosure outweigh those in favour of disclosure, particularly in view of the reasonable expectation of adverse effects upon the functions of the NSWPF in the investigation of complaints against police officers discussed above.
[19]
Conclusion
It follows that the decision under review should be affirmed.
[20]
Orders
The Tribunal orders that:
1. The decision under review is affirmed.
[21]
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: 12 November 2021
In cross-examination, Chief Inspector Holgate noted that investigative techniques are constantly evolving and need to be kept confidential.
The applicant submitted that:
1. he was not afforded procedural fairness in investigation, and that the information now sought should have already been released to him as part of that investigation. Part of his examination of Chief Inspector Holgate was directed to this point. However, it is no part of the Tribunal's remit on this application to determine whether procedural fairness was afforded during the investigation. The Tribunal is required to determine the application in accordance with the principles earlier described;
2. the Wood Royal Commission made findings concerning the investigation of alleged misconduct, the use of various surveillance techniques and investigative methods, and that investigations of complaints against police should be transparent. However, the Tribunal's task is limited to the application of the GIPA Act and it is required to consider the legislation and the policies of the NSWPF in their current form.
The applicant also made a series of submissions concerning surveillance devices and other investigative techniques, and cross-examined Chief Inspector Holgate on this topic. The thrust of this submission and line of questioning was that there can be no prejudice to the respondent from the release of information covering its investigative techniques where these have been disclosed. However, as noted above, Chief Inspector Holgate was unshaken in his cross-examination.
The Tribunal is satisfied that there is a public interest consideration against the disclosure of the information withheld on the basis of cl 1(d). In particular, the Tribunal is satisfied that the release of this information could reasonably be expected to have the effect of prejudicing the future supply to the NSWPF of confidential information (namely complaints, evidence, intelligence and observations received on a confidential basis and thereafter treated confidentially) that facilitates the effective exercise of the NSWPF's functions (as set out in ss 6 and 131 of the Police Act and in particular the investigation of complaints against police officers). The prejudice that could reasonably be expected includes a diminution in the supply of such information with a consequent diminution in the information available to conduct such investigations. It could also be expected to have an impact upon the effectiveness of investigations because of the revelation of the manner in which investigations are conducted, how evidence is gathered and the nature of the deliberative processes involved.