Pavan v Commissioner of the New South Wales Crime Commission & Anor
Gedeon v Commissioner of the New South Wales Crime Commission & Anor
Source
Original judgment source is linked above.
Catchwords
Pavan v Commissioner of the New South Wales Crime Commission & AnorGedeon v Commissioner of the New South Wales Crime Commission & Anor
Judgment (9 paragraphs)
[1]
r(s): 2016/00378516
Publication restriction: Section 64 (1) (d) of the Civil and Administrative Tribunal Act applies to those paragraphs of these reasons identified as paragraphs 53-57 inclusive 'not for publication'. Those paragraphs are not to be released to either the Applicant or the public.
[2]
Background
On 25 October 2010 Detective Kiem completed the application for authority to conduct a controlled operation under the Law Enforcement (Controlled Operations) Act 1997 ("LECOA"). On 26 October 2010 controlled operation authority CO10/275 was granted.
On 8 February 2011 Detective Kiem completed the application for authority to conduct a controlled operation under the LECOA. On 10 February 2011 controlled operation authority CO11/022 was granted.
Both controlled operations CO10/275 and CO11/022 were part of Strike Force Lindner, which was set up to investigate the illegal supply of firearms, explosives and drugs.
In controlled operation CO11/022, Craig Neary was a described target. On 28 June 2011 Craig Neary was charged with a number of offences relating to the unlawful sale of prohibited drugs and firearms. Evidence of Craig Neary's involvement in the offences was gained as part of the controlled operation CO11/022. Mr Neary pleaded guilty and was sentenced to a period of imprisonment of 5 years and six months imprisonment for the offences with a non-parole period of 3 years and 6 months.
On 17 February 2011 Mr Luke Johnson was arrested for a range of firearms and drug offences following the execution of covert and overt search warrants on a storage unit.
In Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59 the Applicant to these proceedings sought a range of documents including a copy of the application for a search warrant 08/2011, a full copy of the application for the related covert search warrant, and a copy of the application for Controlled Operation CO1122, and the 'DNA Notification Link' in respect of a Winchester 12 Gauge shotgun. Senior Member McAteer upheld the decision of the Commissioner to refuse access to the information sought.
In Neary v Commissioner of Police, NSW Police Force [2017] NSWCATAD 142 ("Neary"), the Applicant's agent and witness in Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59 sought access to the application, authority and costs records for controlled operation CO11/22. Mr Neary was a known target and evidence arising from the Controlled Operation was relied on in the successful prosecution against him. Senior Member Perrignon effectively affirmed a supplementary decision of the Commissioner to allow access to a redacted version of the application for controlled operation CO11/22, grant access to the authority, and allow access to a redacted version of the costs records.
On 7 September 2016 the Respondent received an application for access to the following information pursuant to the Government Information (Public Access) Act 2009 ("the GIPA Act"):
1. A copy of the DNA link notification reference No 23173;
2. A copy of any correspondence or documentation relating to the DNA testing and results of the incidents in relation to cops event No E4344545427, the DAL forensic receipt no Fs113096 that was received in the laboratory on the 11th May 2011 by M Chaumont and the DNA Link notification reference No 23173.
3. A complete copy of the authority for controlled operation CO10/275.
4. A complete copy of the application for controlled operation CO10/275.
In support of the requests, the Applicant stated the following:
The applicant makes application for information relating to DNA testing and reports from his prosecution in 2011 resulting from Operation Linder.
In 2011 Luke Owen Johnson was arrested and charged with serious offences by detective Hadley and Kiem he was prosecuted through to trial that was dismissed for lack of evidence.
During this prosecution a DNA Forensic Examination Request Form was submitted by Detective Justin Hadley and Detective Bruce Grassic in relation to cops event No E4344545427.
The Dal Forensic receipt no is Fs113096. It was received at the laboratory on the 11th May 2011 by M Chaumont.
The Police report resulting from this testing indicates that the DNA identified does not originate from Luke Johnson. The report states that the DNA recovered originates from an unknown male and has been entered into the DNA database.
A DNA Link Notification was produced on the 15/6/11 reference no 23173. That states; The DNA sample contained from the above mentioned person was profiled and placed on the DNA database and has matched with the crime scene listed on the right. This listing is for the matter of Johnson.
The name, barcode and CNI sections of the suspect sample in the copy of this link notification supplied in the brief of evidence in the Johnson matter is blank.
The applicant also believes that he was the target of a controlled operation involving detective Justin Hadley in late 2010 reference no 10/275. The Applicant believes that this controlled operation resulted in his failed prosecution.
On 21 October 2016 the Respondent determined the application, releasing in part a number of documents with redactions. The redactions to those documents were made to that information for which the Respondent determined the public interest considerations against disclosure outweighed those in favour of disclosure:
1. Copy of DNA Link Notification: Name and CNI redacted on the basis of clause 3(a) of the table to s14 of the GIPA Act ("Document 1");
2. Copy of facsimile including cover page, Police report relating to DNA testing, Forensic Examination Request Form P377 (DAL forensic receipt FS113096): two mobile phone numbers redacted on the basis of clause 3(a) of the table to s14 of the GIPA Act ("Document 2");
3. Copy of authority to conduct controlled operation: portions redacted on the basis of clauses 1(f), 2(a), 2(b), 3(a), 3(f) of the table to s14 of the GIPA Act ("Document 3");
4. Application for authority to conduct a controlled operation: portions redacted on the basis of clauses 1(f), 2(a), 2(b), 3(a), 3(f) of the table to s14 of the GIPA Act ("Document 4").
The Applicant sought review in the Tribunal on 18 November 2016 on the basis of a "deemed refusal". This conflicts with the Applicant's acknowledged receipt of the Respondent's decision of 21 October 2016, but can perhaps be understood with reference to the Tribunal's findings in Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59, in which circumstances there, involving the sane parties, were found to be a deemed refusal:
In making this observation the Tribunal notes that the respondent was dealing with a suite of GIPA requests from the applicant and his associate whereby as various amounts of information were provided through subsequent applications, this had the effect of identifying further information which became subject to further GIPA Act requests.
The evidence and submissions from the Applicant in these proceedings addressed the Respondent's refusal to release the redacted material. Accordingly I find that the references to a "deemed refusal" in the application for review to the Tribunal, in the language of s63 of the GIPA Act, should instead refer to a decision under s58(1)(d) of the GIPA Act.
Part of the hearing, incorporating confidential evidence and submissions by the Respondent, was conducted pursuant to 107 of the GIPA Act in the absence of the applicant and his legal representative. Where I have considered it necessary, I incorporate what transpired in the confidential session by way of confidential reasons.
[3]
Jurisdiction
The Tribunal's jurisdiction to conduct this review derives from s. 100 of the GIPA Act read with s. 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s. 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s. 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s. 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s. 63(3).
[4]
The GIPA Act
Section 3(1) of the GIPA Act provides:
3 Object of Act
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.
Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.
Section 55(2) of the GIPA Act provides that personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure.
Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to:
1. identify relevant public interest considerations in favour of disclosure,
2. identify relevant public interest considerations against disclosure,
3. attribute weight to each consideration for and against disclosure, and
4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act.
Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act.
Relevant to these proceedings is Clause 3 of the Table at section 14, which provide:
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):
(a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,
(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,
…
(f) expose a person to a risk of harm or of serious harassment or serious intimidation.
The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act:
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.
Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent.
The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure: Mannix v Department of Education and Communities [2014] NSWCATAD 35 at [5-10]. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].
[5]
"Could reasonably be expected…"
The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:
In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require 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 those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].
[6]
The Mosaic effect
The "mosaic effect" is particularly relevant to access applications for information from controlled operations such as these, and was specifically considered in Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59 against a similar factual background. In Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [92] the Appeal Panel referred to the "mosaic effect" as:
…a phenomenon whereby access applicants build up a picture of the whole, through completing parts of the mosaic, by means such as access applications, other forms of research and inquiry, and pre-existing personal knowledge of the circumstances of interest. They might thereby be able obtain an understanding of, for example, the extent to which the applicant's activities are being monitored and the types of information being compiled. The following explanation was given in Saleam v Commissioner of Police, New South Wales Police Service [2002] NSWADT 40 by Robinson JM at [26]:
The argument is, in brief, that, as a factual matter, the applicant or a person or persons on his behalf is undertaking a systematic approach to the making of numerous FOI Special Branch applications for the purpose of and with the ultimate aim of him putting the pieces together and discovering significantly more than he is otherwise entitled to. Such information sought to be impermissibly discovered by the applicant through his implementation of this process includes the name or names of informants of the respondent or information from which those names might be likely identified and other operational information that would not normally be made available to the applicant.
[7]
Consideration
At hearing, the Tribunal was informed that the redacted information in Document 2, comprising two mobile telephone numbers, was no longer sought.
The Respondent's evidence and submissions were largely focussed on how disclosure of the redacted information in Documents 1, 3 and 4 could identify an informant, and the effects that would have on the Respondent's functions, both specifically in relation to the controlled operation CO10/275, and generally. Detective Superintendent Blackmore gave detailed evidence in similar terms to that given by him in Neary at [40] to [52] regarding the use and protection of informants and its effects on the Respondent's functions and investigative methodology, and I accept his evidence. Detective Sergeant Kiem gave evidence specific to Controlled Operation CO10/275, Controlled Operation CO11/022, the investigation of Luke Johnson and Craig Neary, and why she believed the Applicant was interested in Controlled Operation CO10/275:
On 10 February 2011 a controlled operation authority 11/022 was granted.
Included in the last page of the application above point H I included a reference to '10/275' merely to identify the earlier controlled operation as part of SF Lindner, rather than to suggest that the Applicant was subject to another controlled operation. A copy of this page has been filed by the Applicant.
She also gave generalised evidence about the use of informants and their role in the Respondent's investigations and other functions, which I similarly accept.
While the Tribunal is not bound by the doctrine of precedent, that is, it is not formally bound to follow earlier decisions, the Tribunal should exercise caution in re-opening prior, considered rulings of an earlier Tribunal. As noted in Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22 at [21]:
21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings.
22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level…
23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case.
In these proceedings, the bases for redacting information in documents captured by the Applicant's requests for the authority to conduct controlled operation CO10/275 and application to conduct a controlled operation CO10/275 are conceded to be similar considerations and reasons to those considered by the Tribunal in Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59 and Neary v Commissioner of Police, NSW Police Force [2017] NSWCATAD 142, involving the same individuals. The Applicant did not challenge the Respondent's evidence in these proceedings and conceded that some of the information was correctly withheld, but submitted that because of the difference in public interest considerations against disclosure in these proceedings, there was "room for more information to be released".
The applicant gave evidence of his beliefs that he was the target of a controlled operation, that only one civilian participant was involved in the controlled operation that was targeting him, and that he knew who that person was. He believed that person had knowingly and falsely provided information to cause his arrest and prosecution. Whilst he claimed in submissions to not wanting to know the identity of any informant, I find that his evidence does not support this submission.
The Applicant submitted that the difference in these proceedings was that the evidence demonstrated that the Respondent had conducted a "failed controlled operation" and a "failed prosecution" against the Applicant. This was said to derive from the fact that none of the thirty-six offences the Applicant was charged with were supply offences, in circumstances where the stated purpose for Strike Force Lindner was the investigation of illegal supply of firearms, explosives and drugs. The Applicant submitted that where a controlled operation was focussed on particular offences, it was a substantive failure of that controlled operation if the particular offences were not charged. The failure of a controlled operation was said to "raise concerns about whether the agency is protecting the effective exercise of its functions, or is taking impermissible, non-Table considerations in to account".
I disagree with the submission that there was a "failed controlled operation" as a result of Strike Force Lindner, Controlled Operation CO10/275 or Controlled Operation CO11/022. There is no evidential basis for the Applicant's assumptions and submission that any controlled operation conducted was a failure. Whilst Detective Sergeant Kiem has referred to Strike Force Lindner being "set up to investigate the illegal supply of firearms, explosive and prohibited drugs", there is no basis for the Tribunal to draw any inference that the sole purpose of any operations conducted as part of the Strike Force were to investigate "supply", as opposed to other types of offences, or that the Applicant was a named subject to a controlled operation, or that the failure to charge the Applicant with a supply offence results in a failure of a controlled operation. These are assumptions made by the Applicant which are not supported by evidence.
I also disagree with the Applicant's submission that the "failure" of an operation would demonstrate that the agency was not "protecting the effective exercise of its functions". The functions of the Respondent include the conduct of investigations and operations. Whether or not those operations and investigations are deemed by an individual to be a "success" or a "failure" has no effect on the exercise of those functions, and has no general impact on applying the public interest considerations against disclosure identified in the table to section 14 of the GIPA Act for the purpose of determining an access application under the GIPA Act.
I also disagree that an inference should or could be drawn by the Tribunal from the dismissal or withdrawal of criminal charges against the Applicant that there was a "failed prosecution", or that this has or would have any impact on the public interest considerations against disclosure relevant to determination of these proceedings. The only impact I consider that the Applicant's criminal charges would have in these proceedings, is when considering the personal interest considerations pursuant to s55 of the GIPA Act.
Referring to the "mosaic effect", which was otherwise not specifically raised by the Respondent in these proceedings but was an issue in Johnson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 59, the Applicant submitted that "persons other than the Applicant will be able to engage the mosaic effect to learn more than they normally could" if the information sought was unredacted, but that this "general impact can be removed by releasing information in such a way that it is only meaningful to the Applicant", specifically by the creation of a new document under s75 of the Act. Tied in with this submission was the Applicant's submission that because the identity of the informant was not sought, this should discount the weight afforded to the considerations in the table to section 14 of the GIPA Act referring to disclosure or revealing of the identity of an informant.
I reject this submission. Pursuant to s75(2)(a), there is no requirement for the Respondent to create a new record for the purpose of complying with its obligations under the GIPA Act. There is also nothing before the Tribunal which would explain how the Respondent could create a document including the redacted information so that it was "only meaningful to the applicant" and could not be used by a third party as part of a mosaic of information which combines to disclose information for which there is an overriding public interest against disclosure. Further, in making the correct and preferable decision, the Tribunal must ensure under s107(1) that it does not disclose any information for which there is an overriding public interest against disclosure, and it could not ensure this by ordering the release of the subject information to the Applicant in a new record. Whether or not the Applicant wants disclosure of the informant's name or identity is not critical. If the disclosure of the information sought would reveal or tend to reveal an informant's identity, there is a public interest consideration against its disclosure.
Turning specifically to the documents in question, Document 1 is a DNA link notification reference No 23173, in which a name and "CNI" has been redacted on the basis of clause 3(a) of the Table to s14 of the GIPA Act. The "CNI" is the number in the NSW Police 'Central Names Index' allocated to a person on his or her first contact with police, against which details of any subsequent contact with police are recorded.
The Applicant submitted that because this document in its redacted form was included in the brief of evidence against the Applicant, this demonstrated exculpatory information withheld from the Applicant, and therefore "significant public interest considerations in favour of holding the Agency accountable for what appears to have been inadequate disclosure in a criminal trial"; further, that the CNI could be safely released because the Applicant had no access to the relevant database to discover the identity behind the string of numbers.
In my view the public interest consideration in favour of disclosure pursuant to s12 of the GIPA Act are the general public interest pursuant to s12(1), and I agree that there is a public interest here in favour of holding an Agency accountable for its actions, as expressed in the GIPA Act at s12(2)(a) and (b), and perhaps s12(2)(d). However I give little weight to these considerations in relation to Document 1. While there is a possibility that disclosure of the redacted information in Document 1 could support an argument that there had been inadequate disclosure in a criminal trial, on an objective assessment of the evidence before me, there is nothing to suggest whether that document did play any particular role in the criminal proceedings, and even if it did, to what extent it was significant or otherwise. I therefore don't consider that its disclosure could reasonably be expected to have any of the effects identified in s12(2) of the GIPA Act. I similarly place minimal weight on the personal factors identified by the applicant pursuant to s55 of the Act. Whilst Document 1 was used in criminal proceedings against the Applicant insofar as it was included in the Brief of Evidence, his claimed motivation in these proceedings for seeking access to the redacted material was his belief that the redacted information would be exculpatory. In circumstances where, on his evidence, the charges against him were withdrawn or dismissed for lack of evidence, the weight to be afforded to this consideration warrants minimisation.
In contrast, I ascribe significant weight to the Respondent's submission that revealing the redacted information in Document 1 would reveal a person's personal information. On an objective assessment of the evidence, the redacted information would clearly disclose an individual name associated with a CIN. The association between the name and CIN is the epitome of "personal information" within the meaning of the GIPA Act. Whilst it may be true, as submitted by the Applicant, that the Applicant has no access to the Police database to obtain the information connected with the CNI, there is no evidence upon which I can make that finding, and further, consideration of the "mosaic effect" leads me to a conclusion that the disclosure of the name and CNI could reasonably be expected to identify an individual's personal information. Accordingly, the public interest considerations against disclosure outweigh those in favour, and I affirm the Respondent's decision with respect to Document 1.
Document 3 and 4, being pages 7 through to 24 of the documents released by the Respondent, contain redacted information pertaining to the application for authority and the authority for Controlled Operation CO10/275. On my review of those documents, as was confirmed with the Respondent in confidential submissions, there were some redactions made which didn't specifically contain information which would be subject to a public interest consideration against disclosure. For example, a whole sentence was redacted where only a portion of the sentence contained a subject disclosure. Additionally, the final redactions made on pages 10 and 24 were conceded by the Respondent at hearing to have been disclosed. The information conceded by the Respondent is identified at Annexure A and is not addressed further in these reasons.
The Applicant submitted that, to the extent that the redactions resembled the information disclosed in Dowe v Commissioner of the New South Wales Crime Commission & Anor; Pavan v Commissioner of the New South Wales Crime Commission & Anor; Gedeon v Commissioner of the New South Wales Crime Commission & Anor; Zaiter & Anor v Commissioner of the New South Wales Crime Commission & Anor [2006] NSWSC 1312 ("Dowe"), the considerations at clause 1(f) and 2(b) of the Table to s14 of the GIPA Act "fall away", and "given the level of specificity already on the public record" with respect to the use and handling of informants by the Respondent, the consideration at clause 2(a) of the table "cannot be said to have major influence on the future provision of information".
I disagree with the Applicant's contention that because certain information was disclosed in Dowe, the considerations at clauses 1(f) and 2(b) of the Table to s14 "fall away" or are not relevant. Information on the public record as a result of published decisions in Dowe and other criminal proceedings concerning the use of controlled operations does not mean that the particular circumstances of this controlled operation, being controlled operation CO10/275, should be on the public record. Whilst the open evidence and submissions of the Respondent addresses the relevant considerations in a general sense, the Respondent has not redacted and thereby withheld material from the public record which is of a general nature regarding the generalised utility and methodology of controlled operations and informants in the exercise of the Respondent's functions. The information withheld is specific to the circumstances of this particular controlled operation.
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
[Not for publication]
On my review of the evidence, the relevant public interest considerations in favour of disclosure of the information redacted from Documents 3 and 4 are the general public interest pursuant to s12(1), that the disclosure of the information could reasonably be expected to inform the public about the operations of the Respondent and, in particular, their policies and practices for dealing with members of the public including their use of registered sources, informants, and controlled operations pursuant to s12(2)(b). I afford these considerations some weight. There is significant public interest in allowing scrutiny of the effective exercise of the functions and operations of law enforcement agencies, and in their particular interactions with the general public and individuals. The Applicant's personal considerations, as expressed in his evidence as beliefs regarding the targets and scope of the controlled operations, support these generalised considerations.
However, in my view the weight to be ascribed to the public interest considerations against disclosure at clauses 1(f), 2(a), 2(b), 3(a) and 3(f) of the Table to s14 of the GIPA Act in the specific circumstances of these proceedings are more significant. I accept the Respondent's evidence and submissions on these considerations. On balance, the public interest considerations against disclosure of the redacted information in Documents 3 and 4 far outweighs the public interest considerations in favour of disclosure.
As discussed above, and for the reasons expressed above, I do not consider it appropriate for there to be a new document created with the information sought by the Applicant. However, the decision made by the Respondent on 21 October 2016 has some deficiencies in its reasons. In particular, it refers to and attaches documents with redactions which have since been conceded, as identified in paragraph 50 above, and it addresses the public interest considerations for and against disclosure in a global or general sense, rather than addressing them with particularity in relation to the information sought by the access application which was redacted, and the particular documents identified by the Respondent as caught by that access application.
Accordingly, the correct and preferable decision is, in accordance with s63(3)(c) of the ADR Act, to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside.
[8]
ORDERS
1. The respondent's decision of 21 October 2016 is set aside.
2. In substitution, the following decision is made in accordance with these reasons for decision:
1. Copy of DNA Link Notification released in part, with name and CNI redacted as per previous release to the Applicant.
2. Copy of facsimile including cover page, Police report relating to DNA testing, forensic examination request form P377 (DAL forensic receipt FS113096) released in part, with two mobile phone numbers redacted as per previous release to the Applicant.
3. Copy of authority to Conduct controlled operation CO10/275 released in part, with redactions as per previous release to the Applicant, except for the words in inverted commas only at Annexure A, which are to be released.
4. Copy of Application for Authority to Conduct a Controlled Operation CO/10/275 released in part, with redactions as per previous release to the Applicant, except for the following words in inverted commas only at Annexure A, which are to be released.
Annexure A (100 KB, pdf)
[9]
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: 28 September 2017