Higgins v Commissioner of Police, New South Wales Police Force

Respondent's decision

1. The Respondent gave the Appellant access to the BWV but not in the form he requested. The Appellant requested "copy access" so that he could keep a copy of the BWV: GIPA Act, s 72(1)(a). The Respondent gave the Appellant "view access" under s 72(1)(c). The difference is that with "view access", a member of the public could not obtain access to the BWV.
2. The first step in the Respondent's reasoning process was that there was an overriding public interest against disclosure of the information in the form requested by the Appellant, that is "copy access". Releasing a copy of the BWV would constitute "distribution" of the information which is a breach of the Surveillance Devices Act 2007 (NSW) (SD Act). The Respondent noted that it cannot control how information released under the GIPA Act is disseminated.
3. The second step was to consider whether there would still be an overriding public interest against disclosure if the information was provided in a different form. The Respondent concluded that if "view access" was provided in accordance with s 72(1)(c) of the GIPA Act there would no longer be an overriding public interest against disclosure. In addition there would be no need to pixelate the number plates of passing vehicles to protect the personal information of third parties if view access was given.

Tribunal's orders

1. The Tribunal affirmed the Respondent's decision to give the Appellant "view access" to the BWV and made the following orders: 3. The Respondent's decision that the Applicant is given access to the Body-Worn-Video footage taken on 9 April 2023 pursuant to s 72(1)(c) is affirmed. 4. The viewing access . . . is to be facilitated online by the Respondent, by way of a secure file transfer platform service.

Grounds of appeal and orders sought

1. The Appellant submitted that the Appeal Panel should set aside order 3 and, in substitution for that decision, make a decision that the Respondent give "copy access" with redactions to protect the personal information of third parties who have not consented to disclosure of their information. The personal information is images of other vehicles and their number plates.
2. The Appellant appealed from Order 3 but only in respect of the way the Tribunal dealt with one of the public interest considerations he identified as being in favour of disclosure. That consideration was said to be that disclosure of the BWV "will provide an opportunity for public debate as to the circumstances in which police officers should be permitted and encouraged to act as the police officer did in my case". We will refer to this public interest consideration in favour of disclosure as the "public debate consideration".
3. In summary, the grounds of appeal, as re-framed in the Appellant's submissions of 9 September 2024, were as follows: 1. Did the Tribunal provide adequate reasons for the conclusions it reached in respect of the "public debate consideration" in favour of disclosure? 2. If it did provide adequate reasons, did it afford procedural fairness to the Appellant to address the Tribunal on the conclusion that neither party had submitted it should make? 3. If no to grounds 1 and 2, did the Tribunal give appropriate weight to the "public debate consideration" in favour of disclosure?
4. The parties agreed that the first question is a "question of law" on which a party has a right to appeal: NCAT Act, s 80(2)(b). In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] - [28] the Appeal Panel set out the principles concerning questions of law in Tribunal proceedings. Merely stating that reasons are inadequate does not necessarily amount to a question of law. In this case, even if the Appellant's first ground of appeal does not raise a question of law, we have decided to give leave to appeal on that ground: NCAT Act, s 80(2)(b). For the reasons we give below, the Tribunal's reasoning about the "public debate consideration" does not allow the reader to understand the weight, if any, that the Tribunal attributed to that consideration. A critical element of the Tribunal's reasoning process is missing or, at least, unclear. Reasons need be given to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it. The Tribunal's failure to do so is a sufficient basis for granting leave to appeal.
5. The Appellant acknowledged that the third question is not a question of law and that he needs the Tribunal's permission or "leave" before he can appeal on that ground. As we have upheld the Appellant's ground of appeal based on the inadequacy of the Tribunal's reasons, we do no need to address this ground of appeal.

Applicable legal principles

1. At [36] - [41] the Tribunal set out the applicable legal principles governing an applicant's access to government information. The Tribunal identified the general principle in s 9(1) of the GIPA Act: (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.
2. At [39], the Tribunal noted that the burden of establishing that a reviewable decision made under the GIPA Act is justified lies on the Respondent: GIPA Act, s 105(1). At [40] - [41] the Tribunal referred to ss 5, 12, 13 and 14 of the GIPA Act. In summary, there is a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. The public interest test is stated in s 13: 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.
3. At [42], the Tribunal characterised the issue as being "whether the public interest considerations against disclosure outweigh those in favour of disclosure within the scheme of the GIPA Act."

Tribunal's findings as to the public interest considerations in favour of disclosure

1. The Tribunal referred to the "public debate consideration" put forward by the Appellant at [22]: 22. Another reason given by the Applicant for seeking disclosure of the video recordings was to contribute to a public debate as to the circumstances in which police officers should be permitted and encouraged to act as the police officer did in his case.
2. The Tribunal included the Respondent's explanation for the police officer acting as he did: The NSW police's explanation was that the police officer decided to provide the Applicant with non emergency assistance even though he did not request it or affirmatively consent to it.
3. At [43] the Tribunal listed the following public interest considerations in favour of disclosure put forward by the Respondent: 1. the statutory presumption in favour of disclosure of government information; 2. the general right of the public to have access to government information held by the agency; 3. that information is personal information to the Applicant; 4. disclosure might reasonably be expected to inform members of the public about the operations of the NSW police and in particular its policies and practices in dealing with members of the public.
4. We will call the consideration at (4) above, the "inform the public consideration". At [58] and [59] the Tribunal elaborated on this consideration but mistakenly referred to the "Applicant" instead of the "Respondent" in the first lines of each of those paragraphs. 58 The Applicant describes a public interest in members of the public being aware of the conduct of police in the exercise of their functions. I am satisfied this identified public interest goes beyond a mere personal interest of the Applicant in the conduct of officers of the NSW Police Force. I consider that a disclosure of the footage could reasonably be expected to inform the public about the operations and the practices of police officers in the use of BWV and ICV recordings and their interaction with members of the public in the exercise of their functions. I therefore consider this to be a public interest consideration in favour of disclosure. 59 The evidence provided by the Applicant is that the police officer in question was attempting to enforce what he understood to be the law governing motor vehicles on the road, including the requirements for display of number plates and use of compliant car seats for a child. The disclosure of information concerning requirements for safety on the roads and how the Respondent's officers act to maintain safe road use, in my opinion, is a public interest consideration in favour of disclosure.
5. At the very end of the Tribunal's reasons, under the heading "conduct of police officer", the Tribunal wrote: 87 I need not consider the veracity or otherwise of any allegations of improper conduct made against the police officer in question. Determination of this matter turns on the weight that I find needs to be given to the considerations referred to above and the balancing those considerations.

The Tribunal's findings as to the public interest considerations against disclosure

1. The following list is a summary of the public interest considerations against disclosure put forward by the Respondent: 1. Secrecy provisions - that disclosure of the information could reasonably be expected to constitute a contravention of s 40 of the Surveillance Devices Act 2007 which prohibits disclosure of "any information obtained from the use, in accordance with section 50A, of body-worn video by a police officer": GIPA Act, cl 6 of the Table to s 14; 2. Individual rights - that disclosure of the information could reasonably be expected to "reveal an individual's personal information": GIPA Act, cl 3(a) of the Table to s 14; At [65] the Tribunal set out the Respondent's submission about this information: ". . . (the) BWV footage contains images and audio recordings of . . . other vehicles travelling on the road (including images, with varying degrees of quality, of number plates attached to vehicles passing by)" 1. Responsible and effective government: that disclosure of the information could reasonably be expected to "prejudice the effective exercise by an agency of the agency's functions": Clause 1(f) of the Table in s 14. 2. Law enforcement and security: that disclosure of the information could reasonably be expected to "prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law": Clause 2(b) of the Table in s 14.
2. The Tribunal gave considerable weight to the "secrecy provisions" described in cl 6 to the Table to s 12: 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
3. The Tribunal found at [60] that providing the Appellant with a copy of the BWV footage could reasonably be expected to contravene s 40 of the SD Act.
4. The Tribunal also gave some weight, though not significant weight, to the fact that disclosure of the information could reasonably be expected to reveal an individual's personal information: GIPA Act, cl 3(a) to Table 14. That personal information is images of other vehicles and their number plates.
5. As to the public interest considerations against disclosure referred to in Clauses 1(f) and 2(b) of the Table in s 14, "in the absence of further evidence of how significant these risks were", the Tribunal was "unable to give these considerations significant weight": reasons for decision at [81].

Weighing the public interest considerations for and against disclosure

1. The Tribunal discussed three other Tribunal decisions involving applications for access to BWV: Cheung v Commissioner of Police [2019] NSWCATAD 249; Wojciechowska v Commissioner of Police [2021] NSWCATAD 284 and Morgan v Commissioner of Police [2021] NSWCATAD 173.
2. The Tribunal weighed the public interest considerations against disclosure ("secrecy provisions" and "individual rights") against the general public interest in favour of disclosure, the "personal information consideration" and the "inform the public consideration".
3. At [69], the Tribunal gave the "secrecy provision" consideration "considerable weight". The Tribunal also took into account the public interest consideration against disclosing the personal information of third parties but did not place significant weight on that consideration: reasons for decision at [78].
4. At [82] the Tribunal concluded that the "secrecy provisions" consideration outweighed the considerations in favour of disclosure. Having come to that conclusion the Tribunal then made the following comment about the "public debate consideration": The extent to which disclosure of the BWV footage could encourage a public discussion of the role of the New South Wales Police in providing assistance to motorists is not clear.

Appellant's submissions on adequacy of reasons ground of appeal

1. Our understanding of the Appellant's evidence and submissions to the Tribunal below is that the police officer had no legal or other basis to direct him to drive to Gundagai and, if that is the case, the Tribunal should have inferred that the police officer was acting irregularly in doing so. In those circumstances, disclosure of the information could reasonably be expected to "provide an opportunity for public debate as to the circumstances in which police officers should be permitted and encouraged to act as the police officer did in my case". (Emphasis added.)
2. In a document before the Tribunal headed "Witness Statement of Andrew Higgins" dated 26 March 2024, the Appellant states as follows at [11] and [14]: It was not until we arrived in Gundagai as ordered by the police officer, and he began to tell us we were now free to go but that we could not drive the car with our son in his current car seat, that it began to dawn on me that the police officer's order for us to drive to Gundagai had no legal purpose or basis. . . . I confess to some embarrassment that, as a lawyer, I did not immediately realise that the police officer had no legal basis to order us to drive to Gundagai.
3. In written and oral submissions, the Appellant elaborated on his understanding that there was no legal or other basis for the police officer to order him to drive to Gundagai. The Appellant clarified that he was not making any allegation of impropriety on the part of the police officer, but asserted that the police officer's conduct was "highly irregular": T25 [32]-[37]. In response to a submission by the Respondent that he was not in a position to give evidence as to whether the police officer's conduct was "irregular", the Appellant submitted that if there were any statutory powers, or any policies or procedures in place, then one would ordinarily expect the Respondent to put that evidence before the Tribunal: T33 [24]-[28]. The Respondent acknowledged that it had not put on any evidence on that topic but that the absence of evidence "cannot be sufficient to support a finding of irregularity . . . ": T 34 [5]-[10].
4. The Tribunal dedicated a single sentence to the Respondent's submission about the "public debate consideration" saying, at [82] that it was "not clear" how disclosure would contribute to a public interest debate. According to the Appellant, the "public debate consideration" is tolerably clear, not unclear and the Tribunal should have given it substantial weight.

Respondent's submission on adequacy of reasons ground of appeal

1. The Respondent submits that the Tribunal's reasons were adequate to discharge the obligation to give reasons including the statutory obligation under s 62(3) of the NCAT Act.
2. As to the failure to make a factual finding, the Respondent submits that it is not correct that there was "evidence that there were no policies or procedures governing the police officer's conduct captured in the BWV". According to the Respondent, that can be seen from the transcript of the hearing, in particular: 1. in responding to the Appellant's suggestion that here had been some impropriety on the part of the NSW police officer involved in the traffic stop, that would be a factor favouring disclosure (T16 [15]-[35]); 2. in responding to the Appellant's suggestion, "I don't think it's in dispute that the police officer had any statutory basis for what he did or that there were any policies or procedures governing what the police officer did" (T25 [27]-[32]), it was submitted: 1. that the Appellant was not "equipped or able" to make the broad assertion he was making as to the irregularity of conduct and/or inconsistency with policies or practice (T30 [17]-[22]); and 2. that the actions of the officer arose from the fact that the Appellant was driving with a child car seat that was not compliant with NSW law (T30 [23]-[30]).
3. In any case, the Respondent submits that it was not necessary for the Tribunal to resolve the dispute between the parties as to the extent to which the actions of the police officer were irregular in order to perform the task that it was required to perform.
4. As to the Tribunal's reasoning process, the Respondent submitted that to focus on the single sentence at [82] of the reasons for decision fails to take into account the totality of the Tribunal's reasons relating to the public interest considerations in favour of disclosure. As the Appeal Panel stated in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [34], in reviewing the adequacy of reasons, the Tribunal "should not read passages from the reasons for decision in isolation from others to which they may be related". At [22] the Tribunal expressly recognised and summarised the Appellant's argument that disclosure would contribute to public debate about the conduct of police.
5. The Respondent characterises the single sentence in [82] as an explanation as to why the Tribunal attributed less weight to that consideration. The Respondent submitted that there is little more that the Tribunal could have said on that matter. According to the Respondent, the Tribunal properly considered the Appellant's submission regarding the public interest favouring disclosure and made clear findings as to those submissions.

Consideration of adequacy of reasons ground of appeal

1. Even if the adequacy of reasons ground does not identify a question of law we have given leave to appeal on that ground. We understand the Appellant's submissions to be that the Tribunal: 1. failed to make findings on material questions of fact, referring to the evidence or other material on which those findings were based; 2. failed to adequately set out the reasoning process that lead the Tribunal to the conclusions it made.
2. Those elements are listed in s 62(3)(a) and (c) of the of the NCAT Act. The statement of reasons was not given on request by a party so strictly speaking, the obligations in s 62(3) do not apply. However, they provide "important guidance": New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [55]. The following passages from [73] - [75] of that decision are particularly relevant: 73 In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". 74 In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: "who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826. But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." 75 To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: "Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)" (emphasis added)

Findings on material questions of fact

1. At [87] the Tribunal decided not to make any factual finding as to the allegations of improper conduct made against the police officer. The reason for that was said to be that "this matter turns on the weight that I find needs to be given to the considerations referred to above and the balancing those considerations."
2. For the following reasons, we do not consider findings about the lawfulness, propriety or irregularity of the police officer's conduct to be a material question of fact.
3. In McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; [2006] HCA 45, the High Court was dealing with the internal working document provisions of the Freedom of Information Act 1982 (Cth), but the statement by Gleeson CJ and Kirby J at [5] is relevant to the Tribunal's fact finding role under the GIPA Act: A conclusion that disclosure of an internal working document would be contrary to the public interest may or may not turn upon contestable facts: either primary facts, or inferences to be drawn from those facts. It may or may not turn upon contestable matters of opinion. Inevitably, it will involve a judgment as to where the public interest lies. Such judgment, however, is not made in a normative vacuum.
4. The object of the GIPA Act includes "giving members of the public an enforceable right to access government information" and "providing that access to government information is restricted only when there is an overriding public interest against disclosure": GIPA Act, s 3(1)(b) and (c). Facts may be asserted by either party to support an inference that disclosure of information could or would have a particular effect. The examples given of public interest considerations in the note to s 12 suggest that certain kinds of factual assertions are not material facts. One example of a public interest in favour of disclosure of information 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.
5. To be satisfied that in a particular case that this example is a public interest consideration in favour of disclosure, the decision maker is not required to decide whether a person has engaged in "misconduct or negligent, improper or unlawful conduct". All that is required is that disclosure "could reasonably be expected to reveal or substantiate" that an agency has engaged in such conduct. Similarly, the following example in the note to s 12 does not require the decision maker to make any factual findings before drawing an inference that "[D]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."
6. These are merely examples of public interest considerations in favour of disclosure and do not limit any other public interest considerations in favour of disclosure: GIPA Act, s 12. Nevertheless, the way they are framed supports the conclusion reached by the Tribunal in Howell v Macquarie University [2007] NSWADTAP 10 at [91] that the Tribunal need not engage in a "satellite factual inquiry" about allegations such as misconduct by third parties or the veracity of the information itself: 91 Ground 6: Ground 6 is that the Tribunal, in its cl 9 inquiry, failed to determine facts essential to its determination of the question whether the release of the document was contrary to the public interest, specifically by 'failing to determine whether the statements in the document about the appellant were erroneous, as the appellant's uncontradicted evidence asserted'; and by failing to determine 'whether the 'direction' issued in accordance with the instruction contained in the document was unlawful, as the appellant submitted. These grounds of appeal are misconceived. The Tribunal did not have go to this far in considering the public interest issue. It remains a matter for the Tribunal to judge whether it was appropriate for it to get involved in a satellite factual inquiry.
7. In this case the Appellant asserted that the police officer's conduct was "irregular". That was not a finding the Tribunal needed to make before determining whether the public debate issue was a public interest consideration in favour of disclosure. All the Tribunal needed to determine was whether the issue was of interest to the public because it was about the welfare of the public or the community as a whole. The reasons are not inadequate because the Tribunal failed to make a finding on a material question of fact.

The reasoning processes that lead the Tribunal to the conclusions it made

1. Another minimum acceptable standard for the Tribunal in this case was to set out "the reasoning processes that lead the Tribunal to the conclusions it made": NCAT Act, s 62(3)(c). That process involves acknowledging that there is a general public interest in favour of disclosure and then identifying other public interest considerations for and against disclosure. The Tribunal must then decide whether any public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure: GIPA Act, s 13. In a similar context under the legislative context under the Freedom of Information Act 1982 (Cth), Gleeson CJ and Kirby J explained the process at [19]: ... Under the FOI Act, ... the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a "general right of access to information ... limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]" (s 3(1)(b)). ... To lose sight of that would be to lose sight of the principal object of the FOI Act.
2. Their Honours were in dissent in the result, but nothing said by the judges in the majority contradicted this statements.
3. The Tribunal's reasoning process was clear and comprehensive in relation to all the public interest considerations for and against disclosure put forward by the Respondent. But the reasons were not adequate in relation to the "public debate consideration" put forward by the Appellant.
4. As we have said, at [82] the Tribunal concluded that the "secrecy provisions" consideration outweighed the considerations in favour of disclosure. Having come to that conclusion the Tribunal made the following comment about the "public debate consideration": The extent to which disclosure of the BWV footage could encourage a public discussion of the role of the New South Wales Police in providing assistance to motorists is not clear.
5. The Respondent submitted that this sentence is an explanation as to why the Tribunal attributed less weight to the public debate consideration. However, the Tribunal did not say how much weight it attributed to the public debate consideration, if any.
6. The sequence in which the Tribunal addressed the "public debate consideration" is not logical. It was not until after the Tribunal concluded that the public interest considerations against disclosure outweigh those in favour, that it made the comment at [82]. In that context, it appears to be somewhat of an after-thought. The reader is left wondering whether the Tribunal did or did not find that the "public debate consideration" was a consideration in favour of disclosure. The Tribunal must give at least a basic explanation of the fundamental reasons which led the Tribunal to its conclusion.
7. The Tribunal's reasoning process should have included a finding as to whether the "public debate consideration" was a consideration in favour of disclosure. The Tribunal should then have gone on to apply the "public interest test" in s 13 of the GIPA Act to all the considerations for and against disclosure.

Procedural unfairness

1. The Appellant submits that the Tribunal did not allow the Appellant to address the Tribunal on the conclusion that it reached in [82]. According to the Appellant, the Tribunal was required to raise, as a matter of procedural fairness, that it did not understand the case before dismissing it on the basis that a party has no notice that their argument is unclear.
2. It is not correct to say that the Tribunal did not understand the Appellant's case or that the Tribunal concluded that his submissions were unclear.
3. As we have found above, the Tribunal understood the Appellant's submission about the factual basis for the public debate consideration but decided not to make factual findings about that matter: reasons for decisions at [87]. This ground of appeal is based on a misunderstanding of the Tribunal's reasons. There is no breach of procedural fairness.

Formulation of the question

1. In addition to the Appellant's grounds of appeal the Appeal Panel asked the parties to address the following questions: Did the Tribunal identify the wrong question or apply the wrong legal test? a. At [1] of the decision, the Tribunal identified the specific issue as "whether the public interest considerations in favour of disclosure outweigh those against disclosure of the footage". We will call that test the "public interest test". (See s 13 of the GIPA Act and [42] of the decision.) The Tribunal applied the public interest test to the question of whether the information (i.e., the footage) should be disclosed. The Tribunal answered that question at [82]. b. Should the Tribunal have identified the issue as being whether the public interest test applies to disclosure of the information in the way requested by the applicant, that is, by providing a copy of a record containing the information. (GIPA Act, s 72(1)(b)). We will call this the form of access issue. The Tribunal identified the form of access issue at [74] of the decision. c. Did the Tribunal identify the wrong question or apply the wrong test in relation to the form of access issue by, instead of applying the public interest test, applying a test of whether providing a copy would facilitate "procedural fairness and the administration of justice". See also [83] and [84] of the decision.

The Respondent's and the Tribunal's reasons for giving "view access"

1. The Respondent relied on two provisions of s 72 as the basis for providing "view access" instead of "copy access". The first was that providing copy access would "interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs": GIPA Act, s 72(2). The Tribunal accepted the evidence of Sergeant Christopher Grady that it would take 9 hours of work to undertake the redaction or pixelation of personal images and number plates in the BWV and ICV footage. Review by a more senior officer would take a further 4 to 5 hours. The overall cost would be less than $1,000. However, the Tribunal concluded at [80], that the time and cost of redacting personal information does "not have a significant bearing on the balancing exercise". We understand that the Tribunal was rejecting the Respondent's reason for giving view access.
2. The second provision relied on by the Respondent for not providing "copy access" was that "there is an overriding public interest against disclosure of the information" in that form: GIPA Act, s 72(2)(d). The Tribunal's reasons for accepting that proposition appear at [74]: In circumstances where the Respondent will grant to the Applicant or his representative appropriate remote access, it is not clear what more provision of copies could do in facilitating procedural fairness and the administration of justice. (Emphasis added.)
3. The Tribunal concluded at [84] that "provision to the Applicant with viewing access only to the BWV footage is the correct and preferable decision".
4. The reference to "facilitating procedural fairness and the administration of justice" appears to have come from the following passage the Tribunal quoted from Cheung v Commissioner of Police [2019] NSWCATAD 249 at [56] (referred to in the Tribunal's reasons at [73]): Leaving to one side for the moment the fact that the information being sought is personal information about Mr Cheung, I find that the public interest considerations in favour of disclosure discussed above are not particularly strong. Disclosure of a copy of the video footage would in the current situation provide little assistance in facilitating procedural fairness and the administration of justice. Disclosure of the information in issue would not provide any substantive means of enhancing government accountability and transparency around the use of body-worn video or indeed, significant information about police operations with respect to vehicle stops and random breath testing. Neither, in my view, would disclosure of the information lead to the promotion of open discussion of the effectiveness of laws relating to mobile phone use while driving. These matters should therefore be accorded little weight. (Emphasis added.)
5. We also note that the reference to "facilitating procedural fairness and the administration of justice" in the decision of Cheung comes from a submission the Tribunal summarised at [47]: As set out above, Ms Cheung originally requested access to a copy of the recording for the purposes of seeking a review of the penalty notice with which she had been issued. She contends that the disclosure of the information in these circumstances could reasonably be expected to facilitate procedural fairness and the administration of justice. I note, however, that Ms Cheung no longer seeks access to a copy of the recording for any purpose associated with a review of the penalty notice. NSW Police also points out that the Surveillance Devices Act specifically creates an exception to the prohibition on use of protected information for court proceedings. (Emphasis added.)
6. At [82] the Tribunal found that there is an overriding public interest against disclosing the information. There is no reference at that point to the form of access. The Tribunal notes at [83] that the Respondent has "offered to make viewing access available" and that "since the date of hearing . . . communications have taken place between them to allow viewing access." The Appellant "will not be denied the opportunity to view the footage he seeks . . ." The Tribunal concludes at [84] that, "[I]t follows, that the provision to the Applicant with viewing access to the BWV footage is the correct and preferable decision."

Consideration of question of law raised by the Appeal Panel

1. The Appellant submitted that the Tribunal did identify the wrong question or apply the wrong legal test in the manner put forward by the Appeal Panel. The Respondent submitted that the Tribunal correctly identified and applied the law. There was no need for the Tribunal to go on to consider the correctness of the decision to provide "view only" access because there was no contest between the parties on that issue.
2. In Cousins v Ambulance Service of New South Wales [2014] NSWCATAD 48 at [62] - [64] the Tribunal set out the reasoning process when an applicant requests access to information in a particular form, such as "copy access". An agency must first apply the public interest test to disclosure of information in the form requested. If there is not an overriding public interest against disclosure of information, the applicant has a legally enforceable right to be provided with access to information in the form requested. We will call that task "the first step". However, if there is an overriding public interest against disclosure of information in the form requested, s 72(2)(d) of the GIPA Act makes provision for the agency to consider whether disclosure of the information in a form other than that requested by the access applicant, would mean that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure. We will call that task "the second step".
3. At [14] of the reasons for decision the Tribunal stated that the Appellant's application under the GIPA Act sought a "digital copy of the Respondent's footage of the events of 9 April 2023." At [60] and [61] the Tribunal refers to a "copy" of the BWV footage. When discussing the case law the Tribunal focused on cases where a copy of BWV footage was requested. Although the Tribunal did not always explicitly refer to disclosure by way of a "copy", based on the way the application was argued before the Tribunal and reading the decision as a whole, the Tribunal did correctly identify and apply the law relating to the first step in the process. The Tribunal impliedly decided that there was an overriding public interest against giving "copy access". It follows that, in answer to question 1(b) the Tribunal properly assessed whether there was an overriding public interest against disclosure in the form requested by the Appellant: GIPA Act, s 72(2)(d). That finding is subject to the findings we have made about the inadequacy of the Tribunal's reasons about the "public debate consideration".
4. The second step was to consider whether disclosure of the information by way of "view access" would mean that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure. The Tribunal's reason for accepting that proposition was that providing a copy would not further facilitate procedural fairness or the administration of justice. As outlined above, that reasoning was based on a misunderstanding of the Tribunal's reasons in Cheung v Commissioner of Police [2019] NSWCATAD 249. It follows that, in answer to question 1(c), the Tribunal applied the wrong test to the question of whether providing "view access" would mean that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure.

Appropriate orders

1. Under s 81 of the NCAT Act, "[I]n determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal . . ." Those orders may include any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.
2. We have given leave for the Appellant to appeal on the ground of the adequacy of the Tribunal's reasons. The Appellant submitted that if we upheld the appeal we should give him copy access to the BWV.
3. This is a case where the Tribunal has not provided adequate reasons - it is not a case where the conclusion it reached is necessarily wrong. Our conclusion justifies setting aside the decision and remitting the whole case for reconsideration by the Tribunal. If the Tribunal decides that there is not an overriding public interest against disclosure of the information in the BWV, copy access will be given. If the Tribunal decides that there is an overriding public interest against providing "copy access" the Tribunal will need to go on to apply the correct legal test to determining whether providing "view access" is the correct and preferable decision. Setting out the Tribunal's reasoning process and applying the correct law does not require further evidence to be adduced.

Orders 1. Leave is granted for the Appellant to appeal on a question other than a question of law. 2. Orders 3 and 4 of the Tribunal's orders of 27 June 2024 are set aside. 3. Pursuant to s 81(1)( e) of the Civil and Administrative Tribunal Act 2013, the Applicant's application for access to the Body-Worn-Video (BWV) footage is to be reconsidered by the Tribunal without further evidence.

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

Amendments 13 February 2025 - Substantive file number amended 24 February 2025 - Order 2 and 3 replaced. 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: 24 February 2025