NSWNSWCATAD

Hopson v Commissioner of Police, NSW Police Force

[2017] NSWCATAD 379

NCAT Administrative and Equal Opportunity|2017-10-16

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2017-10-16

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

Background

On 24 May 2017 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for access to documents concerning the applicant. These documents were held by the respondent agency.
That access application was made on 22 March 2017 to the respondent under the Government Information (Public Access) Act 2009 (the GIPA Act) whereby the applicant was seeking copies of specific information relating to his assessment for promotion within his employer agency. The applicant is a Police Officer and his employer is the respondent agency. The applicant was seeking to understand the basis of his assessment, result, and review in respect of promotion applications that he submitted and the ensuing processes that he undertook. Ultimately he sought all of the information relating to that process, including (but not limited to) the particulars of the decision makers. Initially the respondent refused to provide much of the requested information.
The access application requested: 1. 1. Any written policy document of explanatory notes held by NSWPF or any legal interpretation given by an appropriately qualified legal officer that has deemed clauses 41 (3) (c ) of the Police Regulation 2015 only applies to seeking a review of an Eligibility Program result. 2. 2. Any written record outlining why a resit of certain aspects of the Eligibility Program undertaken by Leading Senior Constable Hopson on 19/10/16 was 'not recommended' as is stated in an email from the Appointments Unit to LSC Hopson on 16/12/16. 3. 3. All written notes made by both assessors of the 'Behavioural Interview' component of the Sergeants Eligibility Program undertaken by LSC Hopson on 19 October 2016. 4. 4. All written records / minutes of the Promotions Review Committee meeting that occurred on 8 March 2017 that relate to the review submitted by LSC Hopson. The reference number in regards to that meeting is CI43/2016/10. Correspondence forwarded to LSC Hopson in relation to that meeting dated 27 March 2017 and signed by Superintendent Clark.

[8]

Background before the Tribunal

The applicant had been initially refused the information he sought in full. However following the first Case Conference the majority of the documents were released by the respondent, albeit with a number of redactions. These redactions however were found to relate to matters outside of the scope of the application. This was uncovered mainly through party / party correspondence whereby the terms 'written notes' were applied resulting in the initial redaction of 'printed material'.
A subsequent application was made to the respondent under the GIPA Act. More information (related to these proceedings) was released as a result of that process. The basis of the further application was to settle the issue about the description of the information limiting the scope, and as a result limiting the volume of information. For example the 'written notes' approach had the effect of limiting the information, and withholding 'printed' material. The subsequent application overcame any restrictive descriptions.
By the time that the matter came on for hearing the only information remaining in dispute was the name of the person appointed as the Chairperson of the Promotions Review Committee.
At the open hearing the Tribunal took evidence from the deponent of Exhibit 'R-2' Superintendent Clark. In the confidential session the Tribunal took evidence from the Chairperson of the Promotions Review Committee who is the deponent of both Exhibit 'R-1' and 'RC-1' (the confidential exhibit).
Having regard to the principle of open justice these open reasons will provide much of the confidential evidence, especially as only the actual identity of the Chairperson is confidential to these proceedings. The gender and substantive occupation of the Chairperson were not confidential, nor was the fact that that evidence would be examined in confidential session under section 107 of the GIPA Act.
Section 107 provides: 107 Procedure for dealing with public interest considerations 1. In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. 2. On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. 3. On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: 1. the public and the applicant, and 2. the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
Following the usual practice in administrative reviews under the GIPA Act (as the onus rests with the agency to substantiate that the decision should be affirmed) the respondent set out its open and closed case followed by the applicant. This is in conformity with the terms of s 105 which provides that the onus is on the agency to justify decisions.

[9]

Witness 1

Superintendent Clark gave evidence and adopted his signed and witnessed statement as true and correct in his evidence in chief. (Exhibit 'R - 2'). The witness is in charge of the Workforce Management Branch and is currently temporarily the Commander of Human Resources for the New South Wales Police Force. He gave evidence about the process of the promotions system consistent with his signed statement. Reference was made to the 'Section C' document which was used to record the rationale for the outcomes of applications referred for review. The witness was asked how those documents are stored and advised that they were 'stored locally'. They were only accessible by two administrative staff attached to the Unit and the review officers who complete the review.
The witness was asked about processes relating to the Chairperson. The witness advised that the appointment was not publically gazetted. In addition the Chair (Chairperson) never writes to an individual candidate / officer. The witness gave evidence that there are individuals who manage records between the Minister's Office, and that he took her (the Chairperson) along to meet staff of that office upon her appointment.
In cross-examination the witness confirmed that he does not take part in the actual process. The Committee can ask for any material concerning roles and candidates and the witness is the conduit for such material. Confidentiality is attached to every aspect of the process.
When asked about his knowledge of the anonymity condition attaching to the Chairperson, the witness advised that to his understanding, this arose through discussions between the appointee and the Minister. Reference was made to the two letters annexed to Exhibit 'R -1' being the current Chairperson appointment correspondence / advice of the Minister (A) and reappointment advice (B). The only references to the role in those letters was a reference to Clause 41 (2) (c) of the Police Regulation 2008 and the relevant Premier's Guidelines (Annexure A) and Cl 42 and Cl 46 (3) of the Regulation in annexure 'B'. It was noted that nowhere in those provisions were any references to anonymity of the role, or that the identity of the office holder was to be protected information.
The witness believes that the current 'anonymity' situation arose only from the current Chairperson, in that it was raised by her. When pressed as to the basis of such a belief, the witness understood that it was not a matter attaching to previous appointments. The witness gave evidence that it was his understanding that the Chair had a genuine fear of being assaulted and that this aspect arises from the Chairperson sitting on the Integrity Panel, their role being in part to decide to 'remove individuals from the promotions list when adverse integrity reviews occur.'
It was further suggested that the gender of the current Chair may have precipitated the current safety concerns whereas previous Chairs were not concerned with such issues.
The witness clarified in cross examination that the Form 'C' and the applicant's own processes through the Branch related only to promotions reviews and was unrelated to integrity matters. The form is not used for integrity review matters.
In re-examination the witness stated that he has performed the role in the Workforce Management Branch for four years, and that the 'last two Chairs' (including the current one) had some confidentiality arrangement. The previous Chair had some arrangement for part or all of their appointment, but again the witness was not privy to the arrangements or specific basis. This altered the earlier evidence given in cross-examination slightly.
The witness was not aware of any 'good reason' for disclosure. The witness referred to the terms of Cl 76 of the Police Regulation 2015 concerning the need to keep certain police information confidential.
The Tribunal inquired of the witness as to the types of matters dealt with as integrity matters, and the volume of matters. The witness was asked whether 181D matters, sustained complaint findings or other matters fell into that category. The witness advised that there were 2 or 3 integrity matters in the last 12 months and that the Chairperson was the sole decision maker on those.
The matters did not necessarily relate to section 181D (Police Act 1990) - loss of Commissioner's confidence matters. The Chairperson only becomes involved in s181D issues in respect of the reviews of the decision to remove an officer from the promotions list.

[11]

Confidential Witness 1

The witness was sworn and asked in evidence in chief about her conditions of employment engagement. The witness stated that her identity was guaranteed to remain confidential in the role and when asked who gave her that 'express condition' the witness answered: 'Superintendent Clark'.
The witness advised that the then Minister's Chief of Staff ('B.S.') had apparently called the former Chair and clarified a number of matters relating to the role, including that the position was confidential. The witness gave evidence as to why confidentiality is important, such as with integrity matters.
When asked to elaborate the witness advised that in her role she was dealing with individuals who might not be happy. She elaborated that the individuals she was referring to were 'armed' and were 'trained to be decisive' and to 'back their own judgement'. For these reasons it was stated that 'the person making the decision is subject to a risk'.
The witness advised that she took the position on the explicit understanding and undertaking that the role would be confidential and that her identity would not be disclosed generally. The witness advised that she had previously (and concurrently) does other legal work for the New South Wales Police Force.
The witness indicated that in certain other contexts (which were closed within organisations) she had been required to disclose all of her interests (including this role). The witness was comfortable with this approach as in her view it was sufficiently removed from the industrial / employment context where decisions could be considered 'adverse' by subject individuals. The context of these other organisations that the witness as involved with were unrelated to employment.
The Tribunal inquired of the witness whether she had any evidence of the risk (real or perceived) arising from performance of the role of Chairperson. The witness reiterated her earlier evidence that there was potential for an adverse incident. In addition the witness was unsure whether she expressly sought the confidentiality condition or whether that was offered to her. In any event the witness was clear that her decision to accept the appointment was based on two criteria, that the position was available and the confidentiality grounds.
There was some discussion in the evidence (and acknowledgement by the witness) of the requirement that the identity of decision makers is usually known, and that such criteria apply (for example) to Court and Tribunal adjudicators.

[14]

The breach of confidence grounds

The respondent submitted that the Chairperson is not an employee of the New South Wales Police Force (NSWPF). They also submitted that she was a civilian not associated with the NSWPF but appointed by the Minister for Police to Chair the Committee.
The respondent submitted that the correct approach in respect of this ground was to identify whether the disclosure of the relevant information could reasonably be expected to found legal action brought in respect of the claimed obligation of confidence on one or more of the following causes of action, citing Re B and Brisbane North Regional Health Authority (1994) 1 QAR 279.
Reference was also made to the decision in Public Service Association & Professional Officers Association, Amalgamated Union (NSW) v Premier's Department [2002] NSWADT 227. (PSA v Premier's Department) The respondent referred to the five matters established by the Tribunal at paragraph 53 of that decision. [53] ..If the hypothetical cause of action was an equitable action for breach of confidence, five matters had to be established: first, the information must be capable of being specifically identifiable as information which is secret rather than generally available; second, the subject matter of the obligation of confidence must not be trivial or useless or generally known; third, the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; four, it must be established that the disclosure of the information would constitute an unauthorised disclosure; and, five, it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.
The respondent submitted that both the Chairperson and Superintendent Clark's evidence was that the appointment was made by the Minister and not underpinned by a written contract or terms of appointment. The respondent submitted that the appointment terms were verbally agreed between Superintendent Clark and the Chairperson and those terms included the confidential nature of the appointment. Specifically that the Chairperson's identity not be disclosed or made public.
On the basis of the verbal contract the respondent submitted that the five preconditions as set out in PSA v Premier's Department were made out. The information was: 1. (the identity of the Chairperson) is specifically identifiable that is secret, and is not generally available; 2. the information is not trivial or generally known; 3. having regard to the terms of the appointment and the assurance provided to the Chairperson as to anonymity, the recipient (that is the agency, via its representative in the relevant matter, Superintendent Clark) was fixed with an equitable obligation not to use the information in an unauthorised way; 4. disclosure of the information would constitute an unauthorised disclosure, as it would contravene the assurance provided to the Chairperson which formed the basis of the Chairperson's acceptance of the appointment; and 5. the Chairperson would suffer detriment if the information were disclosed, namely, the loss of privacy and anonymity of which the Chairperson was assured.
The respondent submitted that the disclosure of the information would therefore found an action for breach of confidence or at the very least (quoting the words of the statute) it 'could reasonably be expected' to found such an action.
The respondent submitted that it would be a: 'bizarre result that a breach of confidence could occur by the disclosure of the information, leaving the Chairperson without remedy, in circumstances where the agency could avoid liability under s. 113 of the GIPA Act'.

[15]

Applicant's submissions

In response the applicant submitted that his motivation for seeking the information is due to a failure by the NSWPF to conduct the review process correctly. In order to consider any subsequent legal action against NSWPF the applicant submitted that he is entitled to the name of the Chairperson.
The applicant submitted that based on a comparison of the documents he had obtained, and Superintendent Clark's detailed letter containing reasons for the Committee's decision, there was a gap in the record keeping. The submission being that whilst the NSWPF stated that there was no further written record, it seemed unlikely that the Superintendent would have had access to such detailed information without a written record having previously been made.
The applicant submitted that the Chairperson is a person who is part of a process making important decisions about my employment and that as a result he is entitled to know their identity.
The applicant submitted that in any other Tribunal / Court / Committee process a party to that process would be entitled to know the identity of the persons sitting in judgement of him. In addition Magistrates and Judges hearing the most serious crimes do not have their identities suppressed.
The applicant strongly refuted any assertion (if made) that serving police officers would pose a risk to the safety of the decision maker if their identity was known.
The applicant made a strong submission concerning the nature of the agreement between the NSWPF and the Chairperson, and in his submission that agreement had already been breached. Referring to paragraph 10 of Exhibit 'R-2' the applicant observed: 'Following each appointment I agreed with each Chairperson that all NSWPF documentation would refer to them only as the Chairperson and would not disclose their identity.'
The applicant submitted that Annexure 'C' of the Respondent's submissions was clearly NSWPF documentation and that document contained (albeit redacted in the open copy) the Chairperson's name.
The applicant submitted that the above evidence illustrated that the 'agreement' between the Chairperson and the NSWPF had not been complied with, and as a result the agreement is already breached and release to the applicant would not create any further detrimental effect to NSWPF.

[16]

Consideration of the evidence

In my view the state of affairs relating to the terms of the Chairperson's appointment (in respect of keeping their identity confidential) is somewhat unusual. The agreement seems to depart from the usual convention that decision making be open and transparent and the names of government decision makers be either a matter of public record, or at the very least known to the parties to which those decisions relate. The usual practice would be for the identities of front line or subordinate officers to (where applicable) have their identities protected.
I also note that s12 (2) of the GIPA Act provides some examples of public interest considerations in favour of disclosure. I note that these examples are not exhaustive but that items (a) and (b) to the Note to s12 appear applicable to the current facts. Note. The following are examples of public interest considerations in favour of disclosure of information: 1. 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. 2. 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.
Whilst the confidential witness gave evidence as to her perception of the need for (what I might refer to as) 'security measures' (due to the nature of the work and the fact that she is a member of the public), when pressed no evidence or specifics of the real risk was provided. Other than a general perception arising from an analysis of the respondent's written material, and the inference concerning a greater risk attaching to the 'integrity list' work, no specific examples were cited. In addition the oral evidence of the confidential witness seemed to be based on an inference that the type of personality cultivated for law enforcement officers (the fact that they are determinative, back their own judgement, and are decisive) is indicative of some greater risk to her well-being. All of these issues arose in the evidence of that witness and were used to illustrate why her details (name) should remain confidential. In addition the fact that these individuals (police officers) were armed was a matter of some significance to the witness. These arguments elicited through the confidential evidence seem more aligned to an argument under cl 3 (a), (b) but in particular cl (f) of the Table to s 14 of the GIPA Act.
I note that the respondent did not rely on any cl 3 (f) argument, that the disclosure of the information could generally be expected to: (f) expose a person to a risk of harm or serious harassment or serious intimidation.
This argument was only advanced in general terms by the confidential witness in her oral evidence.
Notwithstanding the fact that cl (f) is not specifically relied upon by the respondent, I observe that had it been pleaded then I would find that the evidence is not sufficient to displace or override the general presumption in favour of disclosure. In addition I observe that on the evidence before the Tribunal the argument appears somewhat misplaced in general terms. The subject matter of the work of the Chairperson is essentially industrially based, with merits reviews of occupational matters being the predominant work, and probity assessments of the integrity of some officers being a small proportion of the role.
I observe that the terms of the engagement of contractors, employees, and appointees of arms of the Crown are usually subject to law, and also by mutually agreed terms. However those terms cannot be contrary to law. In this instance the appointment was subject to conditions under Premier's Guidelines and the Police Regulation 2008 and 2015. The Guidelines were not produced to the Tribunal and the evidence seems to indicate a verbal contract or terms of engagement between the Chairperson and the Minister / NSWPF. However the GIPA Act overlays all Crown information in New South Wales (unless identified in Sch 1 or similar provisions apply) as a starting point as being publically available.
In addition to this sits the concept of open justice and the requirement for the identity of a decision maker to be known to persons directly impacted by that decision. For example the GIPA Act excludes information concerning the judicial functions of a court or tribunal from release. However that restriction (under judicial functions) does not go as far as the identity of the decision maker, which is considered to be information of an administrative nature.
However, GIPA is not a legislative regime concerned with conduct unless that conduct gores to subverting the operation of the Act. Sections 116 to 120 deal with such matters. Nothing in these proceedings in my view concerns the matters covered in those sections. There is no evidence (or argument) that the respondent has failed to properly consider the relevant matters in the discharge of its obligations under the GIPA Act.
The specific grounds argued by the respondent at the conclusion of the evidence relate to cl 1 (g) from the Table to section 14 being the founding of an action for breach of confidence.

[20]

113 Protection in respect of actions for defamation or breach of confidence 1. If government information is disclosed pursuant to a decision under this Act, and the person by whom the decision is made believes in good faith, when making the decision, that this Act permits or requires the decision to be made: 1. no action for defamation or breach of confidence lies against the Crown, an agency or an officer of an agency by reason of the making of the decision or the disclosure of information, and 2. no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the disclosure of information lies against the author of a record containing the information or any other person by reason of the author or other person having supplied the record to an agency. 1. Neither the giving of access to information pursuant to a decision under this Act nor the making of such a decision constitutes, for the purposes of the law relating to defamation or breach of confidence, an authorisation or approval of the publication of a record containing the information or its contents by the person to whom the information is disclosed.

On the other hand the GIPA Act contemplates (by the fact that cl (1) (g) sits outside of Sch (1), that there will be circumstances whereby irrespective of the fact that the release of information could found an action for breach of confidence etc., that information will be invariably released. If it is released after a proper consideration of the application, the agency is quarantined from any legal repercussion arising by the operation of section 113.
Cl 1 (g) includes other words than 'breach of confidence', namely or otherwise result in the disclosure of information provided to the agency in confidence. This aspect of the clause is also enlivened by the evidence and appears to be the stronger prong upon which the Chairperson's third party argument is predicated. It is clear from the evidence that (appropriately or otherwise), the position was offered on the provision that the Chairperson's identity not be disclosed.
Whilst the individual applied for the position, and on the evidence before the Tribunal their name at that time was not provided in confidence, the appointment agreement of terms (albeit only verbal), created a confidential setting of that information in particular. What other matters (if any) were to remain confidential is unknown. Signatures and residential addresses were redacted by the respondent from the information and the open evidence filed in these proceedings. This was presumably to prevent constructive identification of the Chairperson.
Having considered the evidence and submissions of the parties in the context of PSA -v Premier's Department and noting the satisfaction from a technical perspective of the five grounds from that case, it would appear that there is sufficient weight attaching to the sole public interest consideration against disclosure. The Chairperson took the appointment on the condition of anonymity. The Chairperson stated that it was an 'express condition'. (Para 4 Exhibit 'R-1'). Whilst I do not necessarily share the Chairpersons views concerning the basis for the requirement of anonymity, and in particular the level of risk, the views that must be balanced are those set out in the evidence, and balanced against the objects and words of the Act. In particular the general public interest in favour of disclosure of government information.
It may be that notwithstanding the ultimate decision in these proceedings, the respondent needs to review the terms of ongoing or future appointments to the Chairperson position (or similar), or seek some explicit legislative basis if sufficient evidence exists. Such a basis might ultimately reside in Schedule 2 of the GIPA Act but I make no findings or recommendations in this regard as such a matter does not strictly arise. If anything in this case the evidence for change in the law was not strong, being more focused to an issue about the process and undertakings given.
Whilst I note that if the information was to be released by the agency, the third party would be prevented from any cause of action in accordance with s 113 of the GIPA Act, I am not certain as to how that provision would operate in respect of information ordered to be released by the Tribunal. The wording of s113 sub (1) refers to the 'person by whom the decision is made'. S 113 sub (1) (a) refers to 'the Crown, an agency or an officer of an agency'.
I also note in addition that the respondent has clearly consulted with the third party and obtained their views. The third party (Chairperson) has provided confidential and open evidence in these proceedings. I must have regard to that evidence when discharging my functions under both the GIPA Act and the Administrative Decisions Review Act 1997. As I am unable to test the level of risk further (in the absence of a controlled release or similar prior release of her name) in my view I must have strong regard to that evidence as being the basis for the confidentiality requirement.

Hopson v Commissioner of Police, NSW Police Force - [2017] NSWCATAD 379 - NSWCATAD 2017 case summary — Zoe