Higgins v Commissioner of Police, NSW Police Force

Powers of Civil and Administrative Tribunal

1. The powers of the Civil and Administrative Tribunal ("Tribunal") to review a decision of the Respondent arise where a person is aggrieved by a "reviewable decision" of an agency. Such a person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") of that decision (s 100 of the GIPA Act).
2. What are "reviewable decisions" of an "agency" is set out in s 80 of the GIPA Act. They include a decision to provide access or to refuse to provide access to information in response to an access application (s 80(d) of the GIPA Act). They also include a decision that information is already available to an applicant (s 80(f)).
3. An "agency" is defined in s 4(1) of the GIPA Act to include a "public authority". A "public authority" in turn is defined in Schedule 4 of the GIPA Act to include "the NSW Police Force".
4. An agency has made a "reviewable decision" within s 80 of the GIPA Act, the agency being the Respondent and the "reviewable decision" being a decision to refuse to provide access to information in response to an access application.
5. The Tribunal under s 63 of the ADR Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.
6. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid "access application" seeking "government information". It is not in issue that the Applicant made an "access application" under Part 4 of the GIPA Act and that the information requested was "government information" (see definition of these terms in s 4 of the GIPA Act).
7. That the Tribunal has jurisdiction was not contested. The Applicant's residency outside of New South Wales, does not prevent the exercise of jurisdiction. In circumstances where reviewing decisions under the GIPA Act does not involve the exercise of judicial power, jurisdiction may be validly exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction because the Applicant is not a resident of New South Wales (Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 at [104]-[105]).

Applicant's right to information

1. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing "a system of responsible and representative democratic Government that is open, accountable, fair and effective" (s 3(1)(b) of the GIPA Act).
2. A person who makes an access application for government information has a "legally enforceable right to be provided with access to the information" (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.
3. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1): "(a) deciding to provide access to the information, …. (c) deciding that the information is already available to the applicant … or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information."
4. The burden of establishing that a reviewable decision made under the GIPA Act is justified lies on the agency (GIPA Act, s 105(1)).
5. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government Information (s 12(1) of the GIPA Act). However, the right to access will not be available where "there is an overriding public interest against disclosure of the information" (s 9 of the GIPA Act).
6. There is an overriding public interest against disclosure of government information for the purposes of the GIPA 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 (s 13 of the GIPA Act). 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 of the GIPA Act (s 14(1) of the GIPA Act). The considerations listed in the Table in s 14 of the GIPA Act are the only other considerations that may be taken into account in determining whether there is an overriding public interest against disclosure (s 14(2) of the GIPA Act).

Consideration

1. The matter for determination is whether the public interest considerations against disclosure outweigh those in favour of disclosure within the scheme of the GIPA Act.
2. The Commissioner identified the following considerations in favour of disclosure; 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.
3. The Respondent submitted that a public interest consideration against disclosure arose where disclosure could reasonably be expected to constitute a contravention of a provision of any other act, in the present case a contravention of section 40 of the Surveillance Devices Act 2007 ("SD Act").
4. She also submitted that the disclosure of the footage would lead to disclosure of personal information about persons other than the Applicant and his family, for example registration plates of other vehicles captured by the footage the Applicant sought.
5. The Respondent indicated that she understood the practical difficulties for the Applicant in viewing the footage from Victoria or the UK, where the Applicant was resident. However, the Respondent argued that the correct and preferable decision in the matter was for the Tribunal to provide access to both the ICV footage and BWV footage under s 72(1)(c) of the GIPA Act, with such access to be facilitated online by way of a secure file transfer platform service. The Respondent also said that an agent or other representative of the Applicant may avail themselves of that access.
6. The Respondent at the hearing also indicated that remote access to the footage could be provided to the Applicant in a way that allowed him or his representative to view the footage at his own pace, stopping and starting as required.
7. The Applicant's submission was that the operation of s 40 of the SD Act could not by itself be determinative of the public interest test. The Applicant also argued that the disclosure of number plates about the vehicles could be addressed through appropriate anonymization and redaction of the video footage. The Applicant in a submission dated 21 May 2024, expressed the view that the costs of redaction and pixelation of private information, based on the evidence of Sergeant Grady, would be "modest".
8. The correct approach in making the required determination to be adopted by the Tribunal is the two step process outlined in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] - [25], relevantly that: "Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. … The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions…".
9. Relevantly, the Table in s 14 of the GIPA Act, in determining whether there is an overriding public interest against disclosure, provides: "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) - …… (f) prejudice the effective exercise by an agency of the agency's functions, … 2 Law enforcement and security 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) - …. (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, ………. 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, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … 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".
10. Section 15 of the GIPA Act sets out the principles that apply when determining whether there is an overriding public interest against disclosure: "(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".
11. Section 40 of the SD Act creates an offence for certain use, communication or publication of any "protected information" with a maximum penalty of two years imprisonment. The term "protected information" is defined in s 39 of the SD Act and includes any information obtained from the use, in accordance with s 50A, of body worn video by a police officer.
12. Section 40 of the SD Act provides for a number of exceptions to the offence, including s 40(5) which allows for protected information to be communicated or published by a police officer "to any person" with the consent of the Commissioner, if satisfied ss 40(6) and (7) of the SD Act are met. Those requirements include being satisfied that it is necessary or desirable in the public interest for the information to be communicated or published and that the public interest outweighs any intrusion on the privacy of the person to whom the information relates or any other person who may be affected by its communication.
13. Section 50A of the SD Act relevantly provides: "(1) The use of body-worn video by a police officer is in accordance with this section if - (a) the police officer is acting in the execution of his or her duty, and (b) the use of body-worn video is overt, and (c) if the police officer is recording a private conversation, the police officer is in uniform or has provided evidence that he or she is a police officer to each party to the private conversation. (2) Without limiting the ways in which the use of body-worn video may be overt for the purposes of subsection (1)(b), the use of body-worn video is overt once the police officer informs the person who is to be recorded of the use of body-worn video by the police officer. (3) The use of body-worn video by a police officer is also in accordance with this section if - (a) it is inadvertent or unexpected, or (b) it is incidental to the use of body-worn video by the police officer in the circumstances set out in subsection (1)".
14. There is no conclusive presumption of an overriding public interest against disclosure of the BWV footage in this review because s 40 of the SD Act is not included in the list of legislative secrecy provisions in cl 1 of Schedule 1 to the GIPA Act or elsewhere in Schedule 1. It is instead necessary to apply the public interest test to the footage to determine whether an overriding public interest against disclosure of the footage exists. An overriding public interest against disclosure of the footage will exist if the public interest considerations against disclosure of the footage outweigh the public interest considerations in favour of disclosure of the footage (s 13 of the GIPA Act).
15. In Hurst v Wagga Wagga City Council [2011] NSWADT 307, at [94], it was said: "Ultimately, the balancing of these competing interests is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation".

Public interests considerations in favour of disclosure

1. Both the BWV and ICV footage contain personal information of the Applicant, his wife and children, to the extent that the footage records the Applicant and his wife interacting with a police officer. In this regard, there is a public interest consideration in favour of disclosure.
2. 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.
3. 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.

Secrecy

1. Section 40 of the SD Act is a prohibition for the purposes of a public interest consideration against disclosure under cl 6 of the Table to s 14 of the GIPA Act. Providing the Applicant with a copy of the BWV footage could reasonably be expected to contravene that provision.
2. In Cheung v Commissioner of Police [2019] NSWCATAD 249, view only access to body-worn video footage recording a random breath test, had been granted by the Commissioner. The Commissioner in that matter, as in the present matter, had determined to provide view only access on the grounds that there was an overriding public interest against disclosure of a copy of that footage. The sole public interest consideration against disclosure relied on in Cheung was s 40 of the SD Act. The Tribunal relevantly said (at [43]): "While use of body-worn video is overt unlike the use of other surveillance devices, it is clear that Parliament has included information obtained from the use of body-worn video by a police officer within the provisions concerning protected information…The overwhelming policy considerations behind such a prohibition relate to the integrity of investigations and other law enforcement activities and the privacy of the individuals concerned. These are very important considerations and the limited nature of the exceptions to the prohibition demonstrates an intention to strictly control information obtained through a surveillance device, including body-worn video".
3. FDY v Commissioner of Police [2021] NSWCATAD 285 applies considerable weight to this consideration. That decision was upheld by FDY v Commissioner of Police, NSW Police Force [2022] NSWCATAP 367.

Personal information and privacy

1. Where disclosure could reasonably be expected to have the effect of revealing an individual's personal information, there is a public interest consideration against disclosure of information (Clause 3(a) of the Table in s 14 of GIPA Act).
2. To the extent that the BWV and ICV footage in question contains images of the Applicant, his wife and child, disclosure of these images to the Applicant himself should not result in the personal information about third parties being disclosed (other than his wife and minor children).
3. The Respondent, however, has submitted that the "ICV and 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)". Accordingly, disclosure of the ICV and BWV would have the effect of disclosing personal information of individuals other than the Applicant (Submissions of Respondent filed on 24 February 2024, para 58).
4. I accept that the ICV and BWV footage contains personal information of third parties. There is no evidence any of those third parties provided consent to the release of their personal information or were aware their personal information in the footage had potential to be disclosed. It follows that there is a public interest consideration against disclosure of the relevant information.
5. Clause 3(b) deals with contravention of an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW). Such a contravention may also create a public interest consideration against disclosure of information. There was no evidence to indicate that the circumstances identified by s 18 of that Act where disclosure may be made, apply. Those circumstances are as follows: "Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person".

Prejudice to agency of functions

1. The Respondent also submitted that the disclosure of BWV and ICV footage could "prejudice the effective exercise by an agency of the agency's functions" within the meaning of Clause 1(f) of the Table in s 14 of the GIPA Act. The Respondent also submitted that disclosure could "prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law" within the meaning of Clause 2(b) of the Table in s 14 of the GIPA Act. She refers to the risk that the integrity of the footage can be undermined, particularly given the ready availability of technology that allows for footage and the accompanying meta-data to be altered and or manipulated. She also refers to the risk of public dissemination of the information being later used as a means of overcoming the detection and/or investigation of criminal activities (Submissions of Respondent, para 67-68).

BWV footage

1. There is no conclusive presumption against disclosure to apply in this review. This review is a balancing exercise. While the secrecy interest identified is a public interest consideration against disclosure of the BWV footage requiring considerable weight to be applied during the balancing exercise, it is not a determinative consideration. Those identified public interest considerations against disclosure are to be weighed against the identified public interest considerations in favour of disclosure, having regard to s 15 of the GIPA Act.
2. The several public interest considerations in favour of disclosure identified above (at [56]-[58]) are to be taken into account in the balancing exercise of the public interest test. Further, in my view, the public interest consideration in favour of disclosure of the opportunity for members of the public to be made aware of the conduct of police officers in the exercise of their functions should also be given weight, particularly noting the object of the GIPA Act.
3. I am also satisfied that clause 6 of the Table to s 14 has application to the BWV footage in relation to s 40 of the SD Act. Pursuant to clause 6(2), the public interest considerations under this clause require further consideration of the policy that underlies the prohibition against disclosure.
4. In Cheung, Ransome SM said: "While use of body-worn video is overt unlike the use of other surveillance devices, it is clear that Parliament has included information obtained from the use of body-worn video by a police officer within the provisions concerning "protected information". It is also apparent from the extract set out above from the Parliamentary Debates that Parliament intended that the use, communication and publication of information obtained from the use of body-worn video by a police officer is to be generally prohibited unless necessary for a specified purpose. The fact that significant penalties apply to an authorised disclosure of such information highlights the seriousness of the Parliament's intention to significantly restrict disclosure. The overwhelming policy considerations behind such a prohibition relate to the integrity of investigations and other law enforcement activities and the privacy of the individuals concerned. These are very important considerations and the limited nature of the exceptions to the prohibition demonstrates an intention to strictly control information obtained through a surveillance device, including body-worn video".
5. She went on to find as follows. "The use of surveillance devices, including body-worn video, is an essential and integral part of the detection and investigation of criminal offences in New South Wales. The legislation governing the use of such devices is also designed to ensure that the privacy of individuals is not unnecessarily impinged upon by providing strict requirements around the installation, use and maintenance of surveillance devices. As a result, the Surveillance Devices Act and Regulation establish a strict regime for the collection, use and disclosure of information gathered through the use of the surveillance device, including body-video footage. In my view, for these reasons considerable weight should be given to this public interest consideration against disclosure. 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. The fact that the information is the personal information of Ms Chong should, however, be accorded more weight. As she points out she is the only person who is the subject of the video footage and privacy considerations are less significant in this case than they might be in the ordinary course. In conclusion, for the reasons I have given, in weighing the competing public interests, on balance, I am not satisfied that the public interest considerations in favour of disclosure outweigh the strong public interest consideration against disclosure of the information in the form requested. Accordingly, it is my view that the respondent's decision to refuse access to a copy of that information is the correct and preferable decision. The decision should therefore be affirmed. Although it is not necessary for me to decide, I note that the strong considerations in favour of access to the information in that the information is the personal information of Ms Cheung, can be satisfied by Ms Cheung being granted access, as she has been, to view the footage. Access in that form would change the balance in the considerations in favour of and against disclosure".
6. The observations in Cheung, in my opinion, are relevant to the case at hand in respect of the BWV footage. The significant policy considerations relating to the integrity of investigations and other law enforcement Ransome SM describes have a bearing on the present case. As in Cheung, weight can be accorded to the personal information concerning the Applicant that the footage in question holds. However, it also contains personal information about numerous other people whose number plates are recorded on the footage. 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.
7. In Wojciechowska v Commissioner of Police [2021] NSWCATAD 284, the information in issue was an exchange between the applicant in that case and two police officers occurring on her property. The compliant made by the applicant in that case also concerned events at her property where the exchange occurred. That is, the information was primarily her personal information and disclosure of the information would not breach the privacy of any other person. In these circumstances, the Tribunal found that "the public interest outweighs any intrusion on the privacy of the person to whom the information relates or any other person who may be affected by its communication" (at [218]). The Tribunal was of the view that "disclosure of the information could reasonably be expected to inform the public about the operations of the respondent in regard to the practices of police officers in the use of body-worn videos and their interaction with a member of the public who sought the assistance of police" (at [221]). However, certain information including body-worn-footage was information that could reasonably be expected to reveal personal information about the person to whom the information related (at [158]). The non-disclosure of that information was upheld.
8. There are some similarities with the present case, including in particular the consideration of informing the public about police practices when a member of the public seeks assistance. However, a difference with the present matter is that information sought in Wojciechowska involved events at the applicant's property. The events in question in the present matter occurred on the open road and the information sought records the number plates of numerous other vehicles. The non-disclosure of information of this kind was upheld in Wojciechowska.
9. The facts of Morgan v Commissioner of Police [2021] NSWCATAD 173 involved an application for a copy of BWV footage depicting the apprehension by officers of the NSW Police Force. The circumstances were "a minor traffic infringement relating to riding a bike on the footpath" and the applicant's allegation of "the over-policing of Aboriginal people in Australia and their incarceration" (at [71]). The Tribunal found that the balance weighs in favour of disclosure of the information, providing the privacy of personal information of third parties can be appropriately anonymised. The Tribunal referred to "significant public interest in the policing and incarceration of indigenous Australians", (at [78]). The circumstances of Morgan appear to be different to those presently at hand, both in respect of the events occurring, namely an arrest taking place, and the social context.
10. I refer to the privacy considerations against disclosure. While these matters remain relevant and carry some weight, I do not place significant weight on these considerations. The operation of s 72 of the GIPA Act is relevant: 72 Forms of access "(1) Access to government information in response to an access application may be provided in any of the following ways - (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless - (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant."
11. The Commissioner contends that any requirement to pixelate or otherwise modify the footage would be unduly onerous citing s 72(2)(a) of the GIPA Act. This provision requires that an agency must provide access in the way requested by the applicant unless "to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs".
12. I accept the evidence given by Sergeant Grady as to the time and costs that redaction and/or pixelation would require. I do not consider the time and costs to be unreasonable, being under $1,000 and about 14 hours. Such costs and time do not have a significant bearing on the balancing exercise in this matter.
13. The Respondent also submitted that the disclosure could "prejudice" the functioning of the agency within the meaning of Clauses 1(f) and 2(b) of the Table in s 14 of the GIPA Act. The evidence refers to risk of the integrity of footage being undermined and the risk of public dissemination of the information being later used as a means of overcoming the detection and/or investigation or criminal activities. In the absence of further evidence of how significant these risks were, I am unable give these considerations significant weight.
14. Having followed the two-step process outlined in Camilleri, I am satisfied that the Commissioner, who bears the onus, has established that the public interest considerations against the disclosure of the BWV footage, on balance, outweigh the public interest considerations in favour of disclosure. In the case of the BWV, the weight accorded to the secrecy considerations, outweigh the considerations in favour of disclosure. The extent to which disclosure of the BWV footage could encourage a public discussion on the role of the New South Wales Police in providing assistance to motorists, is not clear.
15. I take note that the Respondent has offered to make available the BWV footage in question for viewing by the Respondent or his agent, on the basis that the viewing may be paused at required times so that the viewer can take their time in examining the footage. The parties have informed the Tribunal since the date of hearing that communications have taken place between them to allow viewing access. The Applicant therefore will not be denied the opportunity to view the footage he seeks and will be able to do so in a way that allows him (and/or his representative) access to the information sought at their own pace and with the benefit of that viewing, take advice as regards any claims he wishes to pursue.
16. It follows that the provision to the Applicant with viewing access only to the BWV footage is the correct and preferable decision.

ICV footage

1. The balancing of the factors going to whether the ICV footage should be released or not turn, firstly, on whether the disclosure could reasonably be expected to reveal an individual's personal information. To the extent that the persons involved are the Applicant's wife and children, I do not consider that this is a matter that carries much weight. To the extent that the ICV footage contains information about the number plates of other vehicles, this will be a matter that carries weight. However, the time and costs and time of pixelation and redaction do not, in my opinion, have a significant bearing on the balancing exercise in this matter. To the extent that the ICV footage records police radio communications concerning matters unrelated to the Applicant, similar considerations apply as regards the costs of redaction.
2. I refer to my comments above as regards Clauses 1(f) and 2(b) of the Table in s 14 of the GIPA Act. I do not place significant weight on the considerations raised by these paragraphs for the reasons set out at [80] above. I find that the matters going to the effective functioning of the agency and law enforcement do not outweigh considerations in favour of disclosure. I therefore find in favour of disclosure of the ICV footage of 9 April 2023.

Conduct of police officer

1. 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.

Orders 1. The Respondent's decision pursuant to s 59(1)(b) of the GIPA Act made on 18 August 2023 is set aside. 2. In substitution, a decision is made that the Respondent is to grant access to the ICV footage taken on 9 April 2023, except for police radio communications and other information disclosing the identity of any third party who has not provided consent for the disclosure of their personal information, which is to be pixelated or otherwise obscured. 3. The Respondent's decision that the Applicant is given access to the BWV footage pursuant to s 72(1)(c) of the GIPA Act is affirmed. 4. The viewing access ordered under (3) above to be facilitated online by the Respondent by way of a secure file transfer platform service.

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: 27 June 2024