GGC v Commissioner of Police, NSW Police Force - [2024] NSWCATAD 57 - NSWCATAD 2024 case summary — Zoe

NSWNSWCATAD

GGC v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 57

NCAT Administrative and Equal Opportunity|2024-02-19

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NCAT Administrative and Equal Opportunity

Decision date

2024-02-19

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Judgment (32 paragraphs)

[1]

Introduction

By application filed 30 October 2023 the applicant, seeks administrative review of an internal decision of the respondent of 4 September 2023 (the Internal Review Decision). The Internal Review Decision relates to an initial access application made by the Public Interest Advocacy Centre (PIAC) on 5 July 2023 on behalf of the applicant.
The applicant acknowledges that since her application was filed the respondent has decided to release additional information to the applicant under s 58(1)(a) of the Government Information (Public Access) Act 2009 (NSW) (GIPA) since the Internal Review Decision. Nevertheless, the applicant presses her claim for access to the remaining information that has been withheld from release (the Disputed Information).
In summary, the applicant submits that the correct and preferable decision is for some or all of the Disputed Information to be released to the applicant on the basis that: 1. the extent of the information presently withheld by the respondent is greater than what is necessary to protect another individual's personal information or to avoid contravening an information protection principle (IPP) under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP); and/or 2. the public interest in disclosure in this instance outweighs the public interest in the protection of another individual's personal information or avoiding contravening an IPP.
For the reasons given below, I have decided to reject the submission that that the correct and preferable decision is for some or all of the Disputed Information to be released to the applicant.

[2]

[6]

Test to determine whether OPIAD

Whether there is an OPIAD is to be determined pursuant to the "public interest test" in s 13 of GIPA which provides: There is an [OPIAD] 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.
The public interest considerations against disclosure are set out in s 14 of GIPA as follows: 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. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
This is an exhaustive list of the public interest considerations against disclosure: FNJ at [20].
The Table accompanying s 14 (the Table) is set out in Attachment A.
The public interest considerations in favour of disclosure are set out in s 12 of GIPA as follows: 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.
The public interest test provides a structured approach, first requiring any relevant s 14 grounds to be identified, then weighing those against any relevant s 12 factors: Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59]; FLF v Children's Guardian [2022] NSWCATAD 380 at [75].
Although consideration of any s 14 ground should be examined at "the broader operational level of the relevant agency" (Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [26]), the "particulars of the "instant situation" that is before the Tribunal ... should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations": FNJ at [99]; Adams v Commissioner for Police (NSW) [2022] NSWCATAD 178 at [63].

[8]

Consideration of personal factors

Section 55 of GIPA relates to the consideration of personal factors of an application, including as relevant to public interest considerations, and relevantly provides as follows: 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.

[12]

Public interest considerations favouring disclosure

The respondent acknowledges that the following public interest considerations in favour of disclosure apply to the Disputed Information: 1. the statutory presumption in favour of disclosure of government information; 2. the general right of the public to have access to government information; 3. 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. The respondent accepts that the conduct and operations of the NSW Police Force are matters of public importance; 4. disclosure of the information could reasonably be expected to inform the public about the operations of the NSW Police Force
At Annexure A to her Application for Administrative Review, the applicant submits that the following additional public interest considerations in favour of disclosure apply: 1. disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds: GIPA, s 12(2) example (c). 2. 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: GIPA, s 12(2) example (e).
With respect to example (c), the respondent submits that it is clear from those parts of the COPS reports that have been released that the events in question occurred while NSW Police Force officers were on patrol, in the usual course of their patrol duties. They did not involve a diversion of NSW Police Force resources of any significance. Accordingly, if the Tribunal finds that this consideration applies, it should be afforded minimal (if any) weight.
With respect to example (e), the respondent submits that there would need to be cogent and persuasive evidence for this consideration to apply: see EMC v University of Sydney [2021] NSWCATAD 234 at [206] and Commissioner of Police Force v Barrett [2015] NSWCATAP 68 at [135]-[136]. The respondent submits there is is nothing in the material presented by the applicant to date, or on the face of the Disputed Information, which would support the application of this consideration.
The respondent submits that there are also two personal factors which may be taken into account under s 55 for the purposes of determining whether there is an overriding public interest consideration against disclosure.
First, the applicant seeks access to the Disputed Information for the purposes of obtaining legal advice with respect to the lawfulness of police searches to which she was subjected.
Secondly, the applicant is aware of the identity of the persons with whom she was associating at the time of the relevant searches. The respondent acknowledges that the applicant's motivation for seeking access to the Disputed Information is a factor in favour of providing access (s 55(2)). However, for the reasons outlined later in the respondent's submissions, the respondent submits that the applicant's relationship with the persons whose personal information is contained in the Disputed Information is a factor against providing access (s 55(3)).

[21]

Personal factors

The applicant also submits that that details of the applicant's personal factors and the context and subject all support the applicant's submission that the public interest considerations in favour of disclosure are relevant and should be afforded significant weight in deciding where there is an OPIAD of any information.
The personal factors are stated as: 28. The Applicant is an Aboriginal woman. At all relevant times, she lived in rural NSW. 29. The Disputed Information relates to incidents where individual police officers, on behalf of the Respondent, have exercised search powers under the Law Enforcement (Powers. and Responsibilities) Act 2002 (NSW) (LEPRA) on the Applicant and/or on a vehicle that the Applicant was driving or in which she was a passenger. The Applicant made the initial access application in order to determine whether these search powers were lawfully exercised. 30. On each occasion, it appears police purportedly exercised their search powers on the Applicant on the grounds that police suspected the Applicant had in her possession or under her control a prohibited plant or prohibited drug (together, 'illicit drugs'), pursuant to sections 21(1)(a)), 21(1)(d) or 36(1)(e) of LEPRA. As discussed further a… the precondition to the exercise of this power is the police officer suspecting 'on reasonable grounds' that certain circumstances exist. 31. Over a six year period, from July 2014 to July 2022, police officers exercised search powers on the Applicant and/or her vehicle on at least seven occasions. During a number of these searches, it was not clear that there were reasonable grounds to support the use of these search powers.
After setting out two such occasion by way of example, the applicant submits that: 32. On the first of these occasions, police did not detail why the certain location or intelligence gave rise to their suspicion that the Applicant was in possession of an illicit substance. In the second, there is authority in NSW that reasonable suspicion is not lawfully raised by avoiding eye contact with police or looking nervous." it appears on face value that in both instances, the police lacked lawful 33. The Disputed Information relates to three other searches of the Applicant. …
The applicant then summarises the information available to her in the redacted COPS Event Reports E84662526, E61556034, and E55128475 which were available to her.

[22]

Section 12 factors

The applicant notes that the respondent has accepted that the examples in (a), (b) and (d) of s 12(2) apply to the Disputed Information.
The applicant further submits that the consideration in example (e) is relevant and should be given significant weight because: 1. pursuant to ss 21(1)(a), 21(1)(d) or 36(1)(e) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), police must have "reasonable grounds to suspect" someone is in possession of illicit drugs, before they can exercise their discretion to conduct personal searches or searches of vehicles without a warrant; 2. the meaning of "reasonable suspicion" or "suspects on reasonable grounds" was considered in R v Rondo [2001] NSWCCA 540 and which set out the following principles: 1. reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E [Crimes Act section in question at the time]. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence; 2. reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value; 3. what is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances; 1. it has been pointed out on many occasions that the long-standing test of a suspicion based on reasonable grounds involves both a subjective and an objective element. A suspicion is something less than a belief that the person has committed an offence. If challenged, the officer must be able to demonstrate some factual basis for holding the suspicion, being a basis which a reasonable person would accept as providing support for the suspicion, whether or not such a person would necessarily draw the relevant inference: Hrdavec v State of New South Wales [2022] NSWCA 52 at [16].
The requirement that police must hold a reasonable suspicion is one of the primary legal protections citizens have against arbitrary police searches. Searches that occur in the absence of any reasonable suspicion are unlawful and can give rise to claims in tort for false imprisonment, assault and battery.
The applicant submits that the information withheld could reasonably be expected to reveal or substantiate whether the decision to exercise police search powers on the applicant (on the occasions detailed in the relevant event reports) was proper and lawful.
The applicant then sets out specific submissions in respect of each COPS Event Report.

[29]

Conclusion

I am satisfied that the Disputed Information constitutes information or an opinion about individuals other than the applicant, and that the information comprises criminal intelligence about those persons and their interaction with the NSW Police Force.
I accept that disclosure of the Disputed Information could reasonably be expected to: 1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance: s 12(2)(a); 2. inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public: s 12(2)(b); 3. reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct: s 12(2)(e).
I give some weight to the applicant's personal factors, namely that over a six year period, police officers exercised search powers on the applicant (being an indigenous woman) and her vehicle on at least seven occasions, and that during a number of these searches, it was not clear that there were reasonable grounds to support the use of these search powers.
However, in my view, the public interest considerations against disclosure of the redacted information in the COPS Reports outweigh the public interest considerations in favour of disclosure.
I consider there is substance in the respondent's submission that disclosure of the Disputed Information would intrude on the privacy of other the individual and reveal sensitive personal information about those individuals relating to suspected criminal activity. I also accept that that disclosure may prejudice the other persons' reputations and life in the community.
I have given significant weight to the public interest considerations against disclosure in item 3(a) of the Table. The personal information in the COPS Reports was gathered by police officers in the exercise of their investigative functions and, because of the circumstances in which it was gathered, it is personal and sensitive to each individual. I am therefore satisfied that disclosure of the Disputed Information could reasonably be expected to reveal personal information about those persons, and that cl 3(a) applies as a public interest factor against disclosure of the Disputed Information.
I have also given significant weight to the public interest considerations against disclosure in item 3(b) of the Table, namely that the disclosure of the Disputed Information would contravene the disclosure IPP in s 18(1) of PPIP, namely that disclosure of the Disputed Information would not be a form of lawful disclosure as provided for by s 18(1) of PIPP. I am satisfied, as submitted by the respondent, that: 1. disclosure would be for a purpose other than that for which the information was collected; 2. the Disputed Information is not information which is usually disclosed to individuals such as the applicant.
I have given some weight to the public interest consideration that the applicant be provided with personal information about herself. But, in relation to p 3 of COPS Report E84662526, it is not feasible to separate the personal information of the applicant from the sensitive personal information of other individuals and this has affected the weight I have given to this consideration.
Weighing up these factors, in my view, the public interest considerations against disclosure of the redacted information in the COPS Reports outweigh the public interest considerations in favour of disclosure.

GGC v Commissioner of Police, NSW Police Force

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