HSF v Commissioner of Police, NSW Police Force

Texts Cited: None

Category: Principal judgment

Parties: HSF (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation: Self-represented (Applicant)
Solicitors:
Maddocks Lawyers (Respondent)

File Number(s): 2026/00198580

Publication restriction: Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked “NOT FOR PUBLICATION”, other than to the respondent (the Commissioner of Police, NSW Police Force) is prohibited.

REASONS FOR DECISION

Background

1. These proceedings concern a request that HSF (the applicant) made to the Commissioner of Police, NSW Police Force (the respondent) on 7 July 2025 (the GIPA request) for access to information under the Government Information (Public Access) Act 2009 (the GIPA Act).

2. The applicant sought access to the following information:

Confirmation of and a recorded copy of my 000 recording to Police on 17 October 2024 and any bodycam footage when police attended the residence. Officers attended from Katoomba Police Station.

Confirmation that a safety check was called in on my behalf on 17 October 2024 by [person named].

Event number (number provided) – Katoomba Police Station

Copy of Officer (name provided)’s body cam footage from 25 January 2025 when he took my verbal statement requesting an ADVO and listened to my evidence (voice recording).

2. A copy of the body cam footage from 31 January 2025 when Officer (name provided) visited my residence and performed a welfare check for my children and spoke to [person named].

3. A copy of the body cam footage from when the officers served me the interim ADVO and information on the date of the first mention (10 Feb 2025).

For the Police ADVO Application (since withdrawn) taken out against me by (name provided).

Police Appln (number provided). Case no: (number provided), I am requesting:

1. Copy of letters and emails provided in support of withdrawal of this ADVO.

Event (number provided)

Requesting a copy of the missing persons report in my name on 10 April 2025 – Katoomba Police Station – Sergeant (name provided) after a safety check was called in by [person named].

Please also provide any documentation provided to the Consular Operations & Emergency Centre (hyperlink provided).

Decision at first instance

3. On 18 August 2025, the respondent issued a Notice of Decision under the GIPA Act, and decided:

4. In relation to the request for confirmation regarding a safety-check on 17 October 2024, to provide access in part to the information sought under ss 58(1)(a) and (d) of the GIPA Act, on the basis that there is an overriding public interest against disclosure of the withheld information under cll 1(d), 1(f), 2(b), 3(a), 3(b), 4(d) and 6 of the table to s 14(2) of the GIPA Act;

5. In relation to the requests for BWV footage relating to service of the ADVO and documentation provided to the Consular Operations & Emergency Centre, the requested information was not held: s 58(1)(b) of the GIPA Act;

6. to release the COPS event and email correspondence in part.

7. to provide the applicant with view-only access to the BWV recordings that depict an interaction between herself and the Police, namely: (1) On 17 October 2024 - IMS ID-20568699-0003 and IMS ID-20568700-0001; and (2) On 25 January 2025 - IMS ID-21522993-0011 and IMS ID-21522994-0004.

8. To refuse access to the 000 call on 17 October 2024 and the BWV dated 25 January 2025 (IMS ID-21568265-0009 and IMS ID-21568266-0004).

9. Further, the respondent decided to withhold certain information on the basis that it was either irrelevant to the GIPA request or was not within the scope of the GIPA request: s 74 of the GIPA Act.

External review

5. On 25 September 2025, the applicant applied to the Information Commissioner for a review of the decision, and on 9 April 2026, the Information Commissioner determined that the respondent’s decision was justified and made no recommendation.

Application for Administrative Review

6. On 8 May 2026, the Tribunal received the current application, which sought review of the decision on the following grounds:

I seek full copy access to Body Cam 2 (25 Jan 2025 – currently restricted to view-only) and Body Cam 3 (31 Jan 2025 – refused in full). Body Cam 3 records police disclosing my DV report to my ex-partner despite my explicit objection that doing so would endanger me, while police did not intend to grant an AVO. PICAD 1(d) does not apply: the person whose privacy is claimed to be protected did not seek out police, did not want to make a report and declined to make a statement.

7. On 15 July 2026, the applicant confirmed that the scope of the application is limited to the body worn video files.

Respondent’s case

Evidence of Inspector Graham

8. The respondent relied upon a statement of Inspector David Graham dated 7 October 2026, which was admitted into evidence and marked as Exhibit A, subject to his attendance for the purposes of cross-examination by the applicant.

9. Inspector Graham stated that he is currently the Professional Standards & Service Delivery Command Inspector for the Area Command. He stated that in the decision at first instance, the respondent gave weight to cll 1(d) and 1(f) of the table to s 14(2) of the GIPA Act, with respect to two BWV recordings dated 31 January 2025, as these include information that was provided to police by third parties in confidence and concern matters of a very personal nature. He stated that the collection and storage of information potentially related to criminal activity or alleged domestic violence incidents, is central to what police do and in his experience, disclosure of such information could not only diminish the confidence of members of the public in reporting matters of such sensitive nature to police, but could impair the flow of information to police officers that would severely impact the law enforcement functions of the NSW Police Force.

10. In addition, the NSW Police Force is bound by the Customer Service Charter, which requires police to maintain confidentiality of information received from members of the public. There is an expectation that information provided to police will be treated in a confidential manner.

11. Inspector Graham stated that the respondent also gave strong weight to the public interest considerations against disclosure in cll 3(a) and 3(b) of the table to s 14(2). In relation to the withheld BWV recordings from 25 and 31 January 2025, the Information Commissioner concluded that that reliance on these considerations was justified. He reviewed the video recordings and stated that they clearly include personal information relating to the applicant and other individuals that is not limited to names or other personal identifiers, but also information regarding their personal circumstances. They reference other individuals in the context of highly sensitive matters. That information is not already in the public domain and disclosing it could arguably breach their rights to have that information protected, particularly where there is no reason to believe that those individuals would agree to the disclosure.

12. In relation to reliance on cl 6 of the table to s 14(2) of the GIPA Act, Inspector Graham noted that the Information Commissioner concluded that reliance upon it was justified, He stated that s 40 of the Surveillance Devices Act 2007 (SDA) prohibits the use, communication or publication of ‘protected information”, such as BWV and there are punitive consequences, such as imprisonment, that are tied to a breach of s 40 SDA. Therefore, disclosure of the BWV recordings in response to the GIPA request would arguably constitute a contravention of the SDA.

13. However, Inspector Graham stated that having viewed the WBV from 17 October 2025 and 25 January 2025, which depict interactions between the applicant and police, it is reasonable that she be permitted view only access to that material, but it is not otherwise appropriate to provide her with copies of any of the recordings.

14. In cross-examination, the applicant asked the witness if he had seen all of the BWV recordings. He replied “yes”. She then asked why there were two BWV recordings relating to her attendance at the Police Station and the attendance at her residence in January 2025? The witness replied to the effect that BWV gives an officer discretion to activate and deactivate recording.

15. The applicant had no further questions for the witness and he was excused from further attendance.

Respondent’s submissions

16. The respondent relied upon written submissions filed on 10 August 2026, Submissions in reply filed on 14 September 2026 and oral submissions.

17. In relation to the public interest test, the respondent identified the following public interest considerations in favour of disclosure:

18. The statutory presumption in favour of the disclosure of government information : s 5 of the GIPA Act;

19. The general right of the public to have access to government information held by agencies: s 9 of the GIPA Act;

20. Release of the information requested could reasonably be expected to promote accountability and transparency of the respondent;

21. Disclosure of the information could reasonably by expected to inform the public about the operations of government agencies and their policies and practices for dealing with members of the public;

22. Disclosure of the information is expected to facilitate procedural fairness;

23. The disputed information includes the applicant’s personal information and it is in the public interest for her to have access to it;

24. The disclosure of the information will assist in understanding the investigator’s findings and promote accountability of police investigations and actions; and

25. The disputed information includes information that the applicant provided to the respondent and disclosure could assist the public to see whether records are properly maintained.

26. In relation to public interest considerations against disclosure, the respondent relied upon cll 1(d), 1(f), 3(a), 3(b) and 6 of the table to s 14(2) of the GIPA Act. Reliance on cl 4(d) was not pressed.

27. In relation to the meaning of “could reasonably be expected to” in s 14(2), the respondent relied upon the decision in Transport for NS**W v Searle [2018] NSWCATAP 93 (Searle), where the Appeal Panel determined that the phrase should be given its ordinary meaning and it requires a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that the disclosure would have the relevant effect.

28. In relation to cl 1(d) of the table to s 14(2) of the GIPA Act, the respondent relied upon the Tribunal’s decision in Collins v Secretary, Department of Education [2025] NSWCATAD 151 at [81], where it observed that the Tribunal must be satisfied that: (a) the information was obtained in confidence; (b) disclosure of the information could reasonably be expected to prejudice the supply of such information to the respondent in the future; and (c) the information facilitates the effective exercise of the respondent’s functions.

29. In the context of disclosure of the BWV recordings, the respondent relied upon my decision in Zadravec v Commissioner of Police, NSW Police Force [2026] NSWCATAD 54 (Zadravec), where I stressed the importance of giving “considerable” weight to the public interest consideration under cl 1(d), and noted that “disclosure of information provided confidentially in the course of making a complaint… or assisting the police in responding to a complaint… could reasonably be expected to have the effect contended for in respect of clauses 1(d) and 1(f).”

30. Further, in Zadravec, I referred to the decision of the Supreme Court of NSW in Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [69} regarding the consideration of disclosure of confidential or “sensitive” matters:

When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that a person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is strong public interest in criminal offences being reported to the police and the sources of information not drying up.

23. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, the Administrative Decisions Tribunal held that the question of whether the information supplied is confidential information must be examined, primarily at least, by reference to the agency’s evidence under which it conducts the service within which the information was received. The enquiry should focus on the point of receipt, and the administrative standards and community understandings which surround it. Further in Seremetis v Commissioner of Police; Seremetis v Department of Communities and Justice [2020] NSWCATAD 317 at [72], the Tribunal held that in the usual case, information supplied to NSW Police will be treated as confidential.

24. The respondent argued that those who supplied the disputed information did so with the expectation that it was confidential information and that it would likely only be used for the purposes for which it was obtained, that is, responding to and investigating an alleged domestic violence episode.

25. As to disclosure, that is “making known to a person information that the person to whom the disclosure is made did not previously know”: Nasr v State of New South Wales [2007] NSWCA 101 at [27]. “Prejudice” means “to cause detriment or disadvantage” or to “impede or derogate from’: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. In Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAD 95, Senior Member Molony stated:

Confidential communications between Police and witnesses is to be preferred. Disclosure of what witnesses, including a potential suspect, tell Police will prejudice the supply to Police of such confidential information, and will, in turn, impact on the effective exercise of Policing functions.

26. Further, in McDonald V Commissioner of Police, NSW Police Force [2019] NSWCATAD 66 at [67], the Tribunal applied Camilleri and observed that:

In considering whether or not there would be a prejudice to the future supply of confidential information one does not ask whether it would reasonably be expected that a particular person considering disclosure may refuse to supply such information but rather whether the agency’s general ability to obtain such information in the future would likely to be prejudiced.

27. The respondent also argued that the Customer Services Charter requires the respondent to maintain the confidentiality of information received from members of the public. Given the nature of the incident and the information gathered, if the respondent discloses information provided in confidence, it is likely that individuals will be reluctant to provide information for fear of reprisal or other adverse action., prejudicing the supply of confidential information of this kind to the respondent in the future. It is also likely that the disclosure of this information will lead people to be, at a minimum, inhibited and guarded when supplying information in relation to incidents of domestic disputes, impairing the flow of information to police officers.

28. In Robinson v Department of Health [2002] NSWADT 222 at [71], the Administrative Decisions Tribunal held that the effective performance of an agency’s investigative functions depended to a large extent on the cooperation of those who had relevant information. if information obtained confidentially is released under the GIPA Act, then the disclosure could reasonably be expected to have a substantial adverse effect on the effective performance by an agency of the agency’s functions.

29. “Function” is defined in cl 1 of sch 4 of the GIPA Act as including “power, authority or duty”. The functions of NSW Police include those set out in s 6 of the Police Act 1990*,* relevantly:

Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions—

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section—

police services includes—

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

30. In Simring v Commissioner of Police [2009] NSWSC 270 at [69], the Supreme Court of NSW observed that “…If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police.”

31. Therefore, significant weight should be given to cl 1(d) of the table to s 14(2) of the GIPA Act.

32. In relation to cl 1(f) of the table to s 14(2) of the GIPA Act, the respondent argued that this is relevant to the BWV dated 31 January 2025 to which access has been disputed. The Tribunal has acknowledged that cl 1(f) is in similar terms to cl 1(d) and the analysis set out in relation to cl 1(d) also applies to cl 1(f). If the disputed information was released, it could have a serious impact on the investigative functions of the respondent. Relevantly, in Harding v Commissioner of Police, NSW Police Force [2026] NSWCATAD 139 (Harding), The Tribunal considered a request for disclosure of BWV recordings that were refused by the agency as they contained excluded information relating to the prosecutorial functions of the ODPP. The Tribunal referred to the finding in Head v Commissioner of Police (NSW) [2010] NSWADT 27 at [67], where the Administrative Decisions Tribunal emphasised the importance of preserving the “confidentiality over the identity of complainants and witnesses and the information provided even after investigations are concluded” in order to “maintain the flow of information”.

33. In Harding, the Tribunal referred to the finding in Eggleton v Commissioner of Police (NSW) [2022] NSWCATAD 218 at [60], where I held:

Witnesses and other persons who provide information to police trust that it will be kept confidential unless it is used for the purpose of court proceedings, or on their authority. If confidential information is disclosed under the GIPA Act, people will lose trust in police. If that trust is breached, the flow of information to police officers could dry up, which would severely impact on the agency’s crime investigation function.

34. Therefore, significant weight should be given to cl 1(f).

35. In relation to cll 3(a) and 3(b) of the table to s 14(2) of the GIPA Act, the respondent argued that the BWV recordings from 25 January 2025 and 31 January 2025 depict the applicant and other persons by way of audio and video recording. These also disclose personal affairs about the applicant and other individuals. This kind of information include personal information (as defined in cl 4 of sch 4 of the GIPA Act) as it is information about individuals whose identities are apparent or can reasonably be ascertained from the information, and when held by an agency such as the respondent, is generally only disclosed to the person to whom the information directly relates.

36. While the applicant was present during the event, and is aware of the other individual involved, as the Appeal Panel held in Commissioner of Police (NSW) v Field [2016] NSWCATAP 59, this does not make the personal information contained in the event report “public knowledge*”**.* The applicant has not advanced any particular argument as about why she should be provided with the personal information of the other individuals whose identity is discernible in the BWV recordings other than to rely on the public interest considerations in favour of disclosure.

37. In Zadravec, the Tribunal analysed the public interest consideration in cl 3(a) after reviewing the BWV footage requested for “view only” access by the applicant. That footage contained discussions and allegations that had not yet been tested by the applicant revealing personal information regarding individuals, including her former husband, and personal information regarding her former husband’s home address, family and hiss response to the applicant’s allegations. In that matter, I held that this public interest consideration against disclosure carried significant weight.

38. In relation to cl 3(b) of the table to s 14(2) of the GIPA Act, the respondent argued that this applies to the BWV recordings fated 25 January 2025 and 31 January 2025. In Harding, the Tribunal held that the BWV footage was not collected for the purpose of being disclosed to the applicant and that this consideration should be given significant weight when dealing with an individual’s personal information. The personal information was recorded by police in the course of their duties for law enforcement purposes and its disclosure is not permitted under s 18 of the Privacy and Personal Information Protection Act (the PPIPA).

39. Accordingly, significant weight should be given to cl 3(b) of the table to s 14(2) of the GIPA Act.

40. In relation to cl 6 of the table to s 14(2), the evidence of Inspector Graham is that the provisions of the SDA apply to all six of the BWV recordings . In Cheung v Commissioner of Police [2019] NSWCATAD 249, the Tribunal held that s 40 SDA is a secrecy provision for the purposes of cl 6, and stated:

55. 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.

41. The respondent argued that this matter is analogous to Cheung, as the applicant argues that the recordings should be disclosed to her as the use of the body worn surveillance device was overt, she was aware at the time of recording that she was being recorded by way of a surveillance device, and the contents of the recordings are known to her. However, the Tribunal has recognised that Parliament’s inclusion of BWV recordings under the definition of “protected information” formalises the seriousness of its intention to significantly restrict disclosure “unless necessary for a specified purpose”.

42. In balancing the public interest, as set out in the decisions of Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the respondent argued that there is an overriding public interest against disclosure of the disputed BWV recordings.

43. The respondent concluded that s 72 of the GIPA Act provides that an agency ay provide access in any of several ways and s 72(2) provides that it must provide access in the way requested by the applicant unless certain exceptions apply, including where “there is an overriding public interest against disclosure of the information in the way requested by the applicant”. Therefore, it decided to grant view-only access to the recordings on 17 October 2024 and 25 January 2025.

44. The respondent concluded that the correct and preferable decision is to affirm the decision under review.

Applicant’s case

45. The applicant relied upon her statement foiled on 31 August 2026. This was admitted into evidence and marked as Exhibit 1.

46. The applicant stated that In October 2024, she experienced “a domestic and family violence incident” in which her ex-partner “pursued me aggressively in our car after I left the house to get away from him” and she alleged that “he nearly hit me with our car while I was on foot and then drove recklessly and in manner that frightened me after I got in the car with him. Fearing for my safety, I called NSW Police*”**.*

47. The applicant alleged that when police officers arrived at her place of residence, “I was shut down in a stage of traumatic shock” and that she “wanted to leave my home urgently before (he) returned home*”,* but the attending officers responded by “*scheduling me under the Mental Health Act 2007 (NSW)**”*, and this interaction is recorded on two BWV recordings dated 17 October 2024.

48. The applicant also stated that on 25 January 2025, she attended the local Police Station to formally seek an AVO against her ex-partner on the grounds of coercive control. She said she spoke to an officer (whom she identified), but “before I was permitted to make a statement, (he) appeared dismissive and said words to the effect of : “Only two people have ever been charged with coercive *control, and we don’t know much about it”. She said that she made a statement on BWV in which she described “a historic pattern of behaviour, including the October 2024 incident. Officer (*name provided) listened to an audio recording I had made and asked me to send him a copy”, and she did so. He then said that he did not think that there was anything that Police could do and he left the room to speak with a constable for about two minutes. When he returned, he stated that what she had described was not coercive control and that Police would not apply for an ADVO on her behalf. This was captured on two BWV recordings dated 25 January 2025.

49. The applicant then stated that on 31 January 2025, the officer’s car arrived at her place of residence and that she approached him and asked whether his arrival meant that he would take out the ADVO. However, he said that he would not, and that he needed to speak with her ex-partner “to get his side of the story”. She stated:

9. I explicitly told Officer (name provided) not to do this. I told him it would place me at risk because (he) was unaware I had approached police. I physically attempted to block him from approaching my house and stated that I wished to withdraw my enquiry and close the matter. Officer (name provided) disregarded this, entered my property regardless, despite telling me that no coercive control or domestic violence had occurred and that no action would be taken. Given his statements I believe he had no genuine lawful reason to demand entry to my residence.

10. Officer (name provided) told my children, then aged approximately 9 and 6, he was “checking on their welfare” a check that lasted approximately 10 seconds. He then required me to bring (my ex-partner) outside so they could speak privately, They spoke for a few minutes, until I stepped outside during this conversation to ask what was happening, at which Officer (name provided) told me to go back inside, I did not, I questioned Officer (name provided) why I had to go inside when he was at my house, which appeared to annoy him.

11. (my ex-partner) told the officer he had never hit me, but that I had once “tapped him in the chest” with my fingers during an argument.

12. Officer (name provided) then told me he would be taking out an ADVO against me. I became distressed and asked how he could take (my ex partner’s) account over my own evidence of what had occurred, I said that what had happened was worse than what (he) accused me of. Officer (name provided) responded by saying, “You’re lying. You said that he never hit you”.

50. The applicant stated that this interaction is recorded in the BWV dated 31 January 2025 and the provisional ADVO application paperwork did not record that the interaction was initiated from her own report seeking protection from coercive control. Instead, it recorded that she had attended the Police Station to discuss relationship issues. Her ex-partner attempted to have the ADVO application withdrawn and it was ultimately withdrawn after involvement by her solicitor.

51. The applicant alleged that less than two weeks later, and her ex-partner had moved out of the house, he reported her to Police as a missing person. He also told her that Police informed him that she had travelled to Los Angeles, and she expressed the view that Police had breached her privacy. She also alleged that the missing persons report indicated that she suffered from bipolar disorder or schizophrenia. She said that she attempted to have this information corrected under the PPIPA, but the respondent refused to deal with her application.

52. The applicant alleged that all six BWV recordings arise from and relate to the same continuous sequence of events and she did not believe that any of the could be fairly or fully understood in isolation from the others. Police “sectioned” me under the Mental Health Act when they should have sought to understand my fears if I needed protection. They dismissed her report of coercive control and ignored the evidence she provided, yet acted on a counter-allegation without evidence; a welfare check became the occasion form an entry that she expressly refused and precipitated the events that led to an ADVO against her, and she was very nearly charged with assault after her ex-partner repeatedly tried to have withdrawn. She concluded:

I do not consider this pattern can be properly assessed by viewing any single recording in isolation whether by copy or supervised viewing, without reference to the others.

53. The applicant also stated:

26. I make this statement because I consider the conduct described above raises serious questions about the way I was treated by police as a person who had sought their protection, and because I am seeking access to the BWV recordings – particularly those from 31 January 2025 – to properly assess and pursue any available remedies in relation to that conduct, including the apparent entry onto my property without my consent and without an evident lawful basis.

27. I do not have, and I have not sought, the consent of (my ex partner) to the release of the 31 January 2025 recordings to me,. I understand that the appropriate response to this, consistent with the Tribunal’s approach in ither waters involving body worn video, is for any part of the recordings identifying him or my children to be pixelated and/or dubbed, not for access to be refused outright. My concern rests solely on Officer (name provided)’s actions.

54. In her written submissions, the applicant argued that the respondent had not established any proper basis for the public interest considerations against disclosure, although she accepted that the BWV recordings included personal information of her ex-partner and her children.

55. The applicant stated that her evidence raises specific matters that go to potential misconduct or impropriety, which are capable of being assessed only by reference to the refused recordings themselves and no supervised viewing. She also argued that there “systemic public interest in the misidentification of domestic violence victims”, and she sought to rely upon NSW Bureau of Crime Statistics and Research data that was reported by the ABC in December 2024 and a report from the ABC’s “7:30” program. In that matter, the ABC obtained Body Worn Video and a Magistrate expressed an opinion that the matter should be referred to the LECC.

56. The applicant also argued that consistent with the decision in Morgan v Commissioner of Police [2021] NSWCATAD 173, the disputed BWV could have been supplied with pixelation or dubbing to protect the personal identity of any third party who has not consented to the release of the information.

57. The applicant also argued that her ex-partner’s subsequent actions in attempting to have the ADVO against her set aside, is not indicative of any objection to her obtaining a record of the disputed BWV recording and that absence of consent is answered by redaction and not refusal.

58. The applicant concluded that the decision under review should be set aside and that she should be given unrestricted access to the disputed information.

Respondent’s submissions in reply

59. The respondent stated that it had decided to vary the decision under review, such as to provide the applicant with view-only access to the second of the BWV recordings dated 31 January 2025, as she was present when that recording was made. It decided to provide her with view-only access to that recording.

60. In response to the applicant’s argument regarding Morgan, the respondent noted that the matter concerned an incident that occurred involving an Indigenous Australian and Police and that while the Tribunal ultimately determined to release the footage in pixelated form to protect the identities of any third parties, it did so by giving significant weight to the applicant’s personal factors for seeking access, which were “to inform the public about matters concerning his arrest and the broader issue of policing Indigenous Australian**s”.

61. The respondent argued that Morgan is distinguishable on its facts and that while domestic violence is a serious issue in society that warrants public discussion, this matter is one of a highly personal and sensitive nature, involving children and the applicant’s ex-partner, and requires consideration of very personal and sensitive matters involving individuals.

62. Further, in Yongai v Commissioner of Police, NSW Police Force [2026] NSWCATAD 144 (Yongai), the Tribunal held that consent must be express and explicit and cannot merely be inferred by conduct. If there is no evidence that the third parties in the footage have consented to the release of the recordings, the Tribunal is unlikely to consider full disclosure by way of copy.

63. Finally, the respondent argued that the exercise of pixelating the disputed recordings to ensure that no information of third parties is disclosed is a costly exercise given the number and length of the footage sought to be disclosed in full by the applicant. It cannot incur unreasonable costs particularly where it maintains that there is an overriding public interest against disclosure of a copy of the recordings.

Respondent’s oral submissions

64. In referring to the applicant’s arguments regarding Morgan, the respondent stated that the BWV recordings on 25 January 2025, involved the applicant playing a recording that she made of a “discussion” between herself and her ex-partner, including allegations of coercive control, which was recorded on the BWV. In the first of the BWV recordings of that date, there is nothing to pixelate, as it records the applicant in a one-on-one discussion with a police officer and playing the audio recording from her phone. The Police Officer’s words relate to the contents of the recording and respond to it and it is not possible to either dub or pixelate one part of a conversation.

65. The respondent also stated that this is not a case where the applicant has a greater special interest than her ex-partner in the information in the disputed BWV and there is no evidence that either of the BWV recordings dated 25 January 2025 establish any allegation of misconduct by police in the way that the information in the BWV was handled. It is apparent that the applicant had not viewed the BWV recordings before she made her statement, as her recollection of events is not supported by the actual recordings.

66. Accordingly, the respondent argued that the correct and preferable decision is to affirm the decision as varied to grant view only access to the final BWV recording stated 31 January 2025.

Confidential hearing

67. The respondent lodged copies of all BWV recordings with the Tribunal on a confidential basis and the Tribunal determined that it was necessary to view and consider them in the absence of the applicant under s 107 of the GIPA Act.

68. Accordingly, the Tribunal excused the applicant from further attendance at the hearing and stated that upon completion of the confidential hearing, it would reserve its decision.

69. The Tribunal viewed all of the BWV recordings. Having done so, it is apparent that the applicant did not take the opportunity to view the five recordings to which she was granted view-only access before she completed and signed her statement (Ex 1), as the contents do not support her version of events on 17 October 2024, 25 January 2025 and 31 January 2025.

70. As the Tribunal lacks jurisdiction to consider the conduct of police officers, I do not consider it necessary to make any further comment in relation to these five recordings.

71. In relation to the disputed BWV recording (IMS ID-21568265-009), the vast majority of the footage is focussed on the applicant’s ex-husband as he is engaged in a one-on-one discussion with a police officer. I do not intend to report the contents of the discussion other than to say that it contains his personal information, which is highly sensitive in nature.

72. [NOT FOR PUBLICATION]

Confidential submissions

73. [NOT FOR PUBLICATION]

Consideration

Legal principles

74. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a “reviewable decision”.

75. I am satisfied that the Decision dated 18 August 2025, as varied on 14 September 2026, is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.

76. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states:

63. Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

77. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

The GIPA Act

78. In respect of access applications, s 9(1) of the GIPA Act relevantly provides:

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.

79. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below:

80. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

81. Section 12 provides that there “is a general public interest in favour of the disclosure of government information” and the NSW Information Commissioner “can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies”.

82. Section 13 sets out a “public interest test” which requires a determination of whether “on balance” there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.

83. In Flack and Hurst, the Tribunal confirmed that the “public interest test” under s 13 requires agencies to start with the presumption in favour of disclosure of information and: (1) identify the public interest in favour of disclosure (s 12); (2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

84. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

85. Section 14 relevantly provides:

14. Public interest considerations against disclosure

…

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

83. It is only necessary that the considerations in the s 14 Table “could reasonably be expected” to have the effect identified. The onus is on the agency “to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect”: McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a “reasonable” administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a “mere risk or chance”: Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

84. Section 14(2) of the GIPA Act provides:

The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

85. Clause 1 of the table to s 14(2) – “Responsible and effective government” – provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

…

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions, …

(f) prejudice the effective exercise by an agency of the agency’s functions,

86. Clause 3 of the table to s 14(2) – “Individual rights, judicial processes and natural justice” - provides that 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; or

(b) Contravene an information protection principle under the PPIPA.

87. Clause 6 of the table to s 14(2) – “Secrecy provisions”, provides that 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.

88. Section 72(1) provides that access to government information may be provided by an Agency 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.

89. Section 72(2) provides that 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.

90. Section 73 provides that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world”.

91. Section 105 places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).Sect

92. Section 107 sets out the procedure for dealing with public interest considerations and provides:

(2) 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—

(a) the public and the applicant, and

(b) 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.

93. Section 112 provides:

Report on improper conduct

If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of—

(a) the Minister who appears to NCAT to have responsibility for the agency, or

(b) if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner.

SDA

94. Section 40(1) provides:

A person is guilty of an offence if—

(a) the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and

(b) the person knows that, or is reckless as to whether, the information is protected information, and

(c) the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section.

Police Act 1990

95. Section 10 provides:

Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions—

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section—

police services includes—

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

The Public interest test

Public interest considerations in favour of disclosure

96. The respondent has identified an extensive list of public interest considerations in favour of disclosure, which I accept and adopt as being appropriate in the circumstances of this matter. The respondent also correctly identified that the applicant has a personal interest in the information, as much of it is her information.

97. In my view, each of these considerations should be afforded significant weight.

Public interest considerations against disclosure

98. Based on the evidence before me, including the evidence received during the confidential hearing, I am satisfied the information contained in the disputed BWV recording dated 31 January 2025 was provided to police by the applicant’s ex-husband in confidence.

99. I am satisfied that cl 1(d) of the table to s 14(2) has been made out and that disclosure could reasonably be expected to prejudice the supply to the NSWPF of confidential information that facilitates the effective exercise of its functions. I accept Inspector Graham’s evidence on this issue, which was not challenged by the applicant.

100. Based on the same evidence, I am satisfied that cl 1(f) of the able to s 14(2) has also been made out and that disclosure could reasonably be expected to prejudice the effective exercise by the NSWPF of its functions.

101. I am also satisfied that the information contained in the disputed BWV recording is personal information of the applicant’s ex-husband. “Personal information” is defined in cl 4(1) of sch 4 to mean “information or an opinion… about an individual… whose identity is apparent or can reasonably be ascertained from the information or opinion”.

102. In this matter, the applicant’s ex-husband is seen and heard whilst speaking with a police officer regarding the applicant’s allegations. This occurred on the front porch of the applicant’s home, in the applicant’s absence, and whilst it is possible that she was eavesdropping from inside the front door (as she came outside to challenge what was being said), this does not mean that the information has already been “disclosed”. Therefore, to grant access to this information would “reveal” it to the world at large.

103. Further, I am satisfied that cl 3(b) of the table to s 14(2) has been made out, and that disclosure of the disputed information would contravene the information privacy principle in s 18(1) of the PPIPA. Specifically:

104. Disclosure under the GIPA Act is not directly related to the purpose for which the information was collected (which was to allow the individual to respond to allegations that the applicant made against them) and, given the nature of the information and the circumstances in which it was supplied, it would be expected that the individual concerned would object to the disclosure;

105. In circumstances where the information was supplied confidentially to the NSWPF, the individual concerned would not have been aware, nor was the individual notified in accordance with s 10 of the PPIPA, that information of this nature would usually be disclosed to an applicant under the GIPA Act; and

106. There is no basis for a reasonable belief that disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual or a concerned person.

107. The applicant sought to argue that consent can be inferred given her ex-husband’s later actions in attempting to have the ADVO against her dismissed. I reject that argument and I accept as the Tribunal held in Yong**ai at [144], consent must be express and explicit and cannot merely be inferred by conduct and if there is no evidence that the third parties in the footage have consented to its release, the Tribunal is unlikely to consider full disclosure by way of copy.

108. Based on the evidence of Inspector Graham, which was not challenged by the applicant, I accept the respondent’s argument that by operation of cl 6(1) of the table to s 14(2), disclosure of the disputed BWV recording to the applicant would constitute a contravention of s 40 of the SDA.

109. In my view, each of these considerations should be afforded substantial weight.

Balancing the public interest

107. I have applied the public interest test to this matter as required by the decision in Leech and I am satisfied that the public interest considerations against disclosure of the withheld information outweigh those in favour of its disclosure and that there is an overriding public interest against its disclosure.

Alleged misconduct by an officer of the respondent

108. In Ex 1, the applicant sought to impugn the conduct of the police officers who attended her home on 17 October 2024 and 31 January 2025, by accusing them of misconduct. However, this Tribunal has no power to entertain the applicant’s allegations of misconduct against police officers as set out at length in Ex 1.

109. Having viewed all of the BWV recordings during the confidential hearing, I observe that their contents do not support the applicant’s version of events that occurred on 17 October 2024, 25 January 2025 and 31 January 2025.

110. Rather, the Tribunal’s power under s 112 of the GIPA Act is invoked “where an officer of the agency has failed to exercise in good faith a function conferred on the officer by or under th**is Act.”

111. There is no evidence before the Tribunal that would justify any referral to the Minister under s 112 of the GPA Act and I decline to do so.

Conclusion

112. I am satisfied that the correct and preferable decision is to affirm the decision under review, as varied on 14 September 2026.

Order

113. The decision under review is varied to permit view-only access to MWV IMD ID-21568266-0004 dated 31 January 2025, but is otherwise affirmed.

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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