Kent v Commissioner of Police, New South Wales Police Force

Statutory framework and relevant law

1. The GIPA Act was introduced in 2009 to facilitate public access to government information.
2. Section 3 provides that the object and intent of the GIPA Act is as follows: (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. (2) It is the intention of Parliament-- (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
3. Relevantly, s 5 provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
4. Section 9 provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. Section 11 provides that the GIPA Act overrides secrecy provisions in other legislation, other than a provision of the law listed in Schedule 1 as an overriding secrecy law. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Examples of public interest considerations in favour of disclosure are set out in the Note to s 12 as follows: Note--:The following are examples of public interest considerations in favour of disclosure of information-- (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
5. Section 13 sets out how the public interest test must be assessed and provides: There is an "overriding public interest against disclosure" of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
6. Section 14 of the GIPA Act sets out the public interest considerations against disclosure and provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (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.
7. Section 14(1) provides that there are certain documents where it is "conclusively presumed" that there is an overriding public interest against disclosure. Those documents, or classes of documents, are listed in Schedule 1 of the GIPA Act and include, for instance, overriding secrecy laws (cl 1), cabinet information (cl 2), executive council information (cl 3), contempt (cl 4), legal professional privilege (cl 5), documents affecting law enforcement and public safety (cl 7), adoption and care and protection of children (cls 9 and 10) and Ministerial code of conduct. (cl 11). The Commissioner does not rely on any of these grounds.
8. The Table to s 14(2) enumerates seven different grounds for public interest considerations that may be taken into account as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information. The seven grounds are: responsible and effective government (clause 1); law enforcement and security (clause 2); individual rights, judicial process and natural justice (clause 3); business interests of agencies and other persons (clause 4); environment, culture, economy and general matters (clause 5); secrecy provisions (clause 6) and exempt documents under Interstate Freedom of Information legislation (clause 7).
9. Each of these considerations, with the exception of the exempt documents ground, require determination of whether disclosure of the information "could reasonably be expected" to have one or more of the effects (or in the case of the secrecy ground, contraventions) outlined within each of the grounds. To establish one of the six considerations described in the Table it is therefore necessary to identify the listed effects (or contraventions) and make an assessment about whether disclosure of the requested information could reasonably be expected to have that effect or constitute a contravention.
10. The Commissioner relies on the public interest considerations referred to in clauses1(d), 1(f), 3(a) and 3(b) of the Table to s 14(2). Clauses 1(d) and 1(f) relate to considerations concerning responsible and effective government. Clauses 3(a) and 3(b), relate to considerations concerning individual rights, judicial process and natural justice. The test is whether disclosure of the information could reasonably be expected to have one or more of the effects listed in the Table. It is therefore apt to outline the relevant effects relied on in detail, which are as follows: 1 (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, ……… 1(f) prejudice the effective exercise by an agency of the agency's functions, …….. 3(a) reveal an individual's personal information, 3(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 ,
11. Section 15 of the GIPA Act sets out the principles that apply to agencies and, relevantly, to the Tribunal, when making a determination as to whether there is an overriding public interest against disclosure of government information. Decision-makers must make public interest determinations in accordance with the following principles: (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.
12. Section 53 of the GIPA Act sets out the obligations of an agency and the searches it must undertake once a request for information is received. The obligation to provide access to government information is limited to the information held by the agency when the application is made. There is no dispute that the Commissioner has undertaken the necessary searches and has identified the material that responds to the request for access to information. The contentious issue in this case is whether the material identified which responds to the request for access should be disclosed.
13. Section 54 provides that an agency must take such steps, if any, as are reasonably practicable to consult with a person before providing access to the government information if the information is of a kind that requires consultation under the section, the person may reasonably be expected to have concerns about the disclosure of the information and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information: s 54(1) of the GIPA Act. In this case, the Commissioner has refused to disclose personal information of a third party and, as such, this obligation has not arisen and is not in dispute.
14. Under s 55, an agency is entitled to take into account the personal factors of the application in determining whether there is an overriding public interest against or in favour of disclosure of government information: ss 55(1) and (2) of the GIPA Act. An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for: s 55(4) of the GIPA Act. The personal factors of the application that may be taken into account are: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant.
15. This provision is relevant because some of the redacted information includes information relating to Mr Kent and he submits that he has good reason for seeking access to this information in relation to claims he may have against a third party.
16. Section 58(1) provides that applications for review are to be decided by the agency: deciding to provide access to the government information sought (subs (a)); deciding that the information is not held by the agency (subs (b)); deciding that the information is already available to the applicant (subs (c)); deciding to refuse the application because there is an overriding public interest against disclosure (subs (d)); deciding to refuse to deal with the application (subs (e)) and deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact (subs (f)).
17. The decision made by the Commissioner was made under both ss 58(1)(a) and (d) of the GIPA Act. As already noted, the Commissioner has disclosed certain information in the police event report to Mr Kent under s 58(1)(a) but has refused to disclose the redacted information. This decision was made pursuant to s 58(1)(d) of the GIPA Act. It is the refusal of the Commissioner to disclose the redacted information which is the subject of the dispute in this review.
18. Section 80 of the GIPA Act sets out the decisions of an agency which are "reviewable decisions" for the purposes of Part 5 of the GIPA Act. Relevantly, this includes a decision to refuse to provide access to information in response to an access application. Section 82 of the GIPA Act allows a person aggrieved by a reviewable decision of an agency to seek an internal review. Section 100 provides that a person who is aggrieved by a reviewable decision may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 105 provides that the onus is on the agency to justify decisions made in respect of access under the GIPA Act.
19. Section 63 of the ADR Act provides that the Tribunal must make the "correct and preferable" decision based on the material before it at the time of the decision. In determining the application for review, the Tribunal may decide to affirm or vary the decision or set aside the decision and make a decision in substitution or set aside the decision and remit the matter for reconsideration by the administrator, in this case the Commissioner, in accordance with any directions or recommendations of the Tribunal.

Issues and submissions

1. The issue in this case is whether the request made by Mr Kent to access the redacted information in the police event report should be refused, allowed, or whether the decision should be varied or set aside and substituted with another decision or set aside and remitted to the Commissioner for reconsideration. In making this decision, I must make the correct and preferable decision. As already noted, the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. This requires the Tribunal to make an assessment of the public interest considerations, both in favour and against disclosure, and weigh those considerations against each other to form a view about where the balance between those competing considerations lies.
2. A preliminary issue is whether any of the considerations identified by the Commissioner in the Table to s 14(2) of the GIPA Act, as being public interest considerations against disclosure, are established. Even if I am satisfied that the redacted information falls within those considerations, I must still undertake an assessment to determine whether the public interest considerations in favour of disclosure are outweighed by the public interest considerations against disclosure. In determining whether there is an overriding public interest against disclosure, I can take into account the personal factors of the application under s 55 of the GIPA Act.
3. Mr Kent submits that the information requested relates to information about him and, in particular, includes details about an assault and abuse on him and damage to his property. He claims that this information is required so he can prepare a civil case about his mistreatment and to assist him in receiving a diagnosis for ongoing mental health issues. He claims that he was forced to defend himself as a result of the incident reported to police and information about this incident is critical to any claims that he may have for a wrongful complaint made against him which he says has caused him mental health issues. Mr Kent further submits that this information is not confidential because he knows the identity of the third party and withholding the information from him is unfair discrimination against him based on his gender. The reason for the non-disclosure is to deliberately hide information to protect misandry and a sexist system.
4. While the Commissioner identifies that there are public interest considerations in favour of disclosure, it is submitted that the public interest considerations in clauses (1)(d) and (f) of the Table to s 14(2) about responsible and effective government weigh strongly against disclosure. Disclosing information about complainants, where this information was obtained in confidence, could reasonably be expected to prejudice the supply of such information to NSW Police in the future and this could thereby prejudice the effective exercise by NSW Police of its functions. It is further submitted that disclosing certain redacted information would reveal an individual's personal information and would contravene the information protection principle under the PPIP Act, which falls within clauses 3(a) and (b) of the Table.

Disputed police event report

1. The report which is the subject of dispute is a report dated 18 August 2029 with an event reference number E 72758165. The report is seven pages in length. The majority of the report is unredacted.
2. Mr Kent and the Tribunal were provided with a redacted version of this report. The Tribunal was also provided with an unredacted version of the report. During a confidential hearing, details of the information contained in the unredacted version of the report were discussed. Set out below is a description of the information contained in the redacted and unredacted report. The description of the information contained in the redacted part of the report is necessarily general for the purposes of these reasons.
3. The unredacted version of the report sets out the date, the police officer who created the report and the time that it was created. The report has been allocated a CNI number and it is recorded as a domestic violence notification. The address of the incident is recorded. Mr Kent is referred to as the contact person for the victim notification. The unredacted version of the report refers to two victims, one being Mr Kent. He is referred to throughout the report as 'Victim 2'. The other person referred to in the report is referred to as 'Victim 1'. Information relating to this person has been redacted.
4. There are numerous redactions on each page of the report.
5. The redactions on the first page all concern information about the person identified as Victim 1. This information redacted is information relating to the other person involved in the incident, which includes details of the person's name, contact details and mobile telephone number. The information has been redacted on the basis of the public interest consideration against disclosure, clauses 3(a) and (b) of the Table to s 14(2).
6. The 'narrative details' about the incident commence on page 2 and continue until page 5. Certain information included in the narrative details is unredacted. For instance, information that has been disclosed to Mr Kent include the supervisor who attended the incident, whether an apprehended domestic violence order had been sought in relation to the incident, whether there were previous apprehended domestic violence orders and the previous history for the person of interest. In this case, it is recorded that there was no previous history. It is recorded that both parties informed the police that this was the first argument which had become emotional and was possibly contributed to the by the fact that both parties were moderately affected by alcohol. This information is redacted.
7. The second page of the report contains narrative details relating to the incident. The date, time and location of this incident is recorded. The information redacted comprises a brief description of the nature of the disturbance reported (being adjacent to the notation CAD message details) and the contact details for the other party, including a reference to any injuries and medical treatment received. The information that is redacted on this page has been redacted on the basis of the public interest considerations against disclosure, clauses 1(d), 1(f), 3(a) and 3(b) of the Table to s 14(2).
8. The third page of the report contains redacted material about the relationship between Mr Kent and the other person referred to in the report. Included within the redacted material is a proforma question in the report which the Commissioner concedes could be disclosed because the question itself does not raise any disclosure concerns. The information that is redacted on this page has been redacted on the basis of public interest considerations, clauses 3(a) and 3(b) of the Table to s 14(2).
9. The fourth page of the report contains redacted information about a previous incident, details about how Mr Kent and the other person in the report met and details of what actually happened at the property. It is this latter information which is of most interest to Mr Kent. The information that is redacted on this page has been redacted on the basis of public interest consideration, clauses 3(a) and 3(b) of the Table to s 14(2). In submissions and during the hearing, it was also contended that the information about the incident should not be disclosed on the basis of clauses 1(d) and (f) of the Table to s 14(2).
10. The fifth page of the report includes both redacted and unredacted information. It is noted that Mr Kent is unsure about what he wanted to do and that he had elected to sleep at a friend's place. The information about the location of Mr Kent's friends and family has been redacted. It is noted in the report that Mr Kent left the house prior to the police leaving and that Victim 1 went into the house with the intention of sleeping in the house. It is also recorded, and this information is unredacted, that both victims were affected by alcohol, there were no mental health issues and there was no damage to property. It is also noted that there were no firearms or dangerous weapons seized and neither the victims nor the police held fears. The redacted information at the bottom of this page includes personal details about Victim 1, being the full name, date of birth, address and mobile number. This has been repeated at various places in the report and has been redacted on each occasion. The information that is redacted on this page has been redacted on the basis of public interest consideration, clauses 3(a) and 3(b) of the Table to s 14(2).
11. The information on page 6 of the report includes details of an informant caller, including the informers name and the contact details. The further redacted information sets out the content of the information given to police by the informant. The rest of the information included on page 6 is unredacted. This information sets out the time and date of the incident, the notation that the incident is recorded as a 'domestic violence episode' involving a 'verbal argument' and that no further investigation is required. Mr Kent's details are recorded as a victim. The details of the informant are redacted on the basis of clauses 3(a) and 3(b) of the Table and the information about the details provided by the informant are redacted on the basis of clauses 1(d), 1(f), 3(a) and 3(b).
12. Page 7 of the police report, which is the final page of the report, includes personal details of Victim 1. There is also information about the injury type recorded on this page which has been redacted. The material redacted under the heading "injury reported date/time" includes three questions in respect of which there are two answers which have also been redacted, one of the answers have been left blank. This information relates to the other victim. It is not clear why the questions have been redacted although the reason given for the redaction of this section is that the information includes private information under the public interest consideration against disclosure, clauses 3(a) and (b).
13. In summary, while much of the police report is unredacted and has therefore been disclosed to Mr Kent, the key aspects of the report that have been redacted are the name, and other identifying features of the other victim, the identity and contact details of an informant and the information provided by the informant, details about the relationship between Mr Kent and the other party, the general location of Mr Kent's family and friends and information about what police have recorded has happened at the incident.
14. Not having had the benefit of reviewing the unredacted information, Mr Kent seeks access to all of the redacted material, but it is apparent from his submissions that the information he seeks is the record by the police of what is reported to have happened and about the other victim's injuries. The information about these matters is recorded in four places in the report, namely in the narrative on pages 2, 4, 6 and 7. This information has been redacted primarily on the basis that it is personal information (cl 3(a) and (b)), although the information on page 6 (relating to the informant) is also redacted on the basis of cl 1(d) and (f) and at the hearing these public interest considerations were identified as additional grounds for the non-disclosure of information on page 4.

Statements and oral evidence

1. The Commissioner provided a statement from Mr Paul Brodie, Sergeant of Police, Lake Illawarra Police District, NSW Police Force. He has been a serving police officer for approximately 36 years. In 2017 he was appointed as team leader of the domestic violence team in the Lake Illawarra Police District. He currently holds this role. As part of his role, he works as a first responder and has daily interactions with members of the general public in the course of conducting police duties and functions. He supervises the domestic violence operatives within his team, ensures the District's response to domestic violence complies with relevant legislation and policy and liaises with numerous government and non-government agencies regarding victim protection and the status of investigations. The domestic violence team does not respond to an issue to an initial complaint of domestic violence or attend the scene and it is the role of the team to progress the matter through the court system once initial investigations are carried out by general duties officers.
2. Mr Brodie was not involved in the investigation which is the subject of the disputed police report. However, he is familiar with the police reporting systems and has review the relevant documents. According to Mr Brodie, the NSW Police Force maintains a number of databases which hold information relevant to criminal investigations and intelligence. The computerised operational policing system, known as COPS, is an electronic database used by NSW Police as a record keeping system to capture, record and store operational information and intelligence on an organisation-wide basis. It provides a means by which police officers record and inquire on numerous functions that are of interest to police. When an officer makes a record on COPS relating to an event, the COPS system allocates a reference number to that entry. COPS consists of many sub-databases and the events sub-database is used to create a record of information that is specifically linked to an incident or event that is occurred. The information in COPS is used to identify, assess, and evaluate the law enforcement environment. It is a secure and confidential database it can only be accessed by law enforcement personnel with appropriate security clearance. The police event report is recorded in COPS.
3. Mr Brodie states that COPS contains personal information about persons in respect of which NSW Police has important obligations to protect and preserve their privacy. Law enforcement personnel with appropriate clearance accessing COPS must first always given acknowledgement before entering the system that the information to be accessed is confidential and can only be used for lawful purposes.
4. Mr Brodie has reviewed the unredacted version of the COPS event, which is in dispute, being event E 72758165. He states that it is apparent that the record contains information that was supplied to NSW Police by members of the public to assist with the commencement and progress of an investigation. It is his view that members of the public provide this information with the expectation of confidentiality. He further states that, based on his experience in dealing with information held by NSW Police, it is his belief that individuals who supply information to police officers for the purpose investigation usually have an expectation that the information will be maintained confidentially and that members of the public often expressed concern about the confidentiality of the information they are supplying. Police officers regularly give assurances about confidentiality to encourage members of the public to provide information. Mr Brodie states that even where the assurance is not explicitly provided, it is usual to preserve the confidentiality of that information, except to the extent disclosure is necessary for the purpose of an investigation or for legal proceedings.
5. Mr Brodie refers to regulation 76 of the Police Regulation 2015 (NSW) which requires members of the NSW Police to treat all information that comes into their knowledge and in their official capacity as strictly confidential and that they are not to disclose confidential information without proper authority. He notes that the rules relating to confidentiality and the importance of preserving confidentiality of information are included in the professional conduct rules and policies governing the NSW Police Force and, in particular, the NSW Police Force Code of Conduct and Ethics, its Customer Service Charter and Standards of Professional Conduct. He notes that it is generally recognised within the NSW Police Force that that cooperation of the public to assist investigations depends on an expectation that information given to the NSW Police Force will be kept confidential and on the fact that members of the public trust the NSW Police Force to do that. He refers to the fact that the release of information in breach of the expectation of confidentiality may breach a person's privacy, cause embarrassment and potentially expose a person to physical and psychological harm or to significant consequences in their lives.
6. Mr Brodie states that in cases involving the supply of information about domestic partners or former domestic partners, personal sensitivities can arise. There can be degree of unpredictability about the effect of the public release of a piece of information. He states that in his experience it is crucial to the ability of the NSW Police Force to function effectively so that members of the public can trust that information they provide will be kept confidential and not discussed with persons outside the investigative team and, often especially, that it not be disclosed to domestic partners or former domestic partners involved, except to the extent necessary to progress an investigation.
7. Mr Brodie states that he is concerned that releasing information that has been supplied confidentially in the course of an investigation would lead to loss of loss of trust in the NSW Police Force and that if members of the public did not feel confident that their information could be kept confidential, he would expect them to be reluctant to engage with Police and less likely to share information necessary for the exercise of police functions. This would impact upon the NSW Police Force in doing its job.
8. Mr Brodie further states that, in his opinion, the release of information supplied to the NSW Police Force that had been redacted from the COPS event E 72758165 could reasonably be expected to have a systemic impact on the capacity of NSW Police Force to gather information for the effective exercise of its functions. This is because the NSW Police Force is dependent on the willingness of members of the public to disclose information to it. He also raises concerns that the release of information supplied to NSW Police Force in matters involving domestic partners or domestic or former domestic partners has the potential to exacerbate existing tensions or disputes.
9. Mr Kent gave oral evidence, which included making submissions about why he was seeking the information. He also provided witnesses statements from third parties relating to the incident.
10. Mr Kent says that the redacted information provided to him is not sufficient for his needs. He says that the incident recorded in the COPS event report arose out of a dispute with the other person referred to in the report who claims that she suffered an injury which is not recorded in her medical records. He wants to understand what the records show about what happened and he challenges what is the person says happened. He says that he is not seeking medical information about his former partner that would infringe her privacy. This is information is important for him because he wishes to seek redress in relation to the events that occurred that night and claims subsequently made against him.
11. In his written statement as to why he wishes to have access to the redacted information, Mr Kent states as follows: All I am after is the full police report that stipulates what happened that night. There is information relating to it as [person] injured herself, refused medical care and was told to take out a mental health plan that they later sent information to the Andrew Crescent address for. As a male victim I am just looking for justice, and closure as it cost me thousands in damages. Your information is contradictory to facts as I am the victim, which is on the part of the report conveniently left out, therefore it can only deter all victims from reporting if they are ignored and covered up to fit an agenda. It is disgraceful. Police did nothing to help me as a male victim, they did not remove her from my house and now they're trying to cover it all up. Absolutely and utterly disgusting. If the police had done their job and removed her like I asked, further damages would not have been caused and further abuse would have been avoided.
12. Mr Kent also provided character references and witness statements from friends and neighbours.
13. Mr Kent provided a written statement from his former housemate where the incident occurred. The statement is undated. According to the author of the statement, he arrived at the house following the weekend away after the incident had occurred. He noticed that the premises contained broken pots and pans and the person identified as the other victim approached him in a very emotional state. She had a cut on her hand. He also observed that there was further damage to the property. He asked her to leave the premises and that she was no longer welcome in the house. The police had been called and arrived shortly thereafter. Mr Kent's housemate then outlined the details of what Mr Kent told him about how the incident occurred. He stated that he could no longer live in the house after this and left the premises.
14. Mr Kent provided a further written statement dated 17 August 2020 from a friend. This statement was addressed to the 'Presiding Magistrate'. The statement outlined the observations of Mr Kent's friend about the relationship between Mr Kent and the person identified as the other victim and the fact that they would frequently argue. In her statement, she described a number of incidents that she had observed involving Mr Kent and this person.
15. Neither witness was required for cross examination.

Does the redacted information fall within one of the categories in the Table to s 14(2)?

1. The question for the Tribunal is to determine whether or not there is an overriding public interest against disclosure of the government information, which is the subject of this dispute, having regard to the underlying presumption in favour of disclosure of government information contained in s 5 of the GIPA Act.
2. Whether the redacted information falls within one of the categories in the Table to s 14(2) is a critical issue because these are the only public interest considerations that may be taken into account as public interest disclosures against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
3. The Commissioner relies on the public interest considerations referred to in clauses 1(d), 1(f), 3(a) and 3(b) of the Table to s 14(2).
4. To form a view about whether any of the redacted information falls within the public interest considerations set out in clauses 3(a) and 3(b) of the Table, I must be satisfied that disclosure of the redacted information could reasonably be expected to have the effect of revealing an individual's personal information (ie clause 3(a)) or contravene an information protection principle under the PPIP Act or a health privacy principle under the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) (ie clause 3(b)).
5. The PPIP Act provides that "personal information" means information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion (s 4 of the PPIP Act). Information about an injury to a person and whether that person has sought or will seek treatment for that injury is "health information" within the meaning in s 6 of the HRIP Act because it is person information about the physical health or disability of an individual and about the individual's express wish about the future provision of health services to him or her. Section 18(1) of the PPIP Act places limits on the disclosure of personal information held unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
6. The information comprised in the redacted parts of the report on pages 1, 2 and 5 of the report includes details of the other victim's name, the contact details, mobile telephone number, date of birth, and residential address or information about victim 2's family and friends. On Page 6 of the report there is a section that is redacted in relation to an informant. Details of the informant, including their contact details, are included in this section of the report. I am satisfied that all of this redacted information, which has been redacted on the basis of clause 3(a) of the Table, is personal information within the meaning of s 4 of the PPIP Act. Accordingly, it follows that disclosure of this information could reasonably be expected to have the effect of revealing an individual's personal information, namely the personal information about victim 1, the informant and Mr Kent's family and friends. It is irrelevant that Mr Kent may know some of this information in relation to victim 1 and his friends and family. This information is still personal information in relation to those individuals, including the informant, and disclosure under the GIPA Act is not confined to the person seeking access, it is disclosure at large. Further, I am not satisfied that any of the exceptions set out in s 18(1) of the PPIP Act apply.
7. Redacted information on pages 3 and 4 includes information about the relationship between victim 1 and Mr Kent. I am satisfied that this is also personal information about victim 1 and while this information may be known to Mr Kent, this does not change the essential character of the information. I find that disclosure of this information could reasonably be expected to have the effect of revealing an individual's personal information, namely personal information about victim 1's relationship with Mr Kent.
8. On the last page of the report, there are details about an injury victim 1 is said to have sustained. I am satisfied that this is information falling with public interest consideration, clause 3(b) and, as such, disclosure of this information could reasonably be expected to have the effect of revealing an individual's personal health information, namely the health information about victim 1.
9. In relation to the narratives on pages 2 and 4, being the police record of what had happened at the incident, this information is based on the police inquiries, including information they were told by Mr Kent and victim 1, this information has been redacted based on clauses 3(a) and (b). I accept this is personal information about victim 1 and disclosure of this information could reasonably be expected to have the effect of revealing personal information about what happened between victim 1 and Mr Kent.
10. The alternative ground for the redaction is based on the public interest considerations referred to in clauses 1(d) and (f). To form a view about whether any of the redacted information falls within the public interest considerations set out in clauses 1(d) and 1(f) of the Table, I must be satisfied that disclosure of the redacted information could reasonably be expected to have the effect of prejudicing the supply to the NSW police force of confidential information that facilitates the effective exercise of its functions or, in the alternative, prejudice the effective exercise by NSW Police of its functions.
11. As noted, the redacted information comprises an outline of what happened as part of the police investigation when they attended the scene. It appears to be information provided by victim 1 and Mr Kent. It is not apparent that there were other witnesses. The information provided by the informant, while identified as personal information of the informant, is also identified as information falling within the public interest considerations referred to in clause 1(d) and 1(f).
12. The question for the Tribunal is the effect of disclosure of this information and whether disclosure could reasonably be expected to have the effect of prejudicing the supply to the NSW Police Force of confidential information that facilitates the effective exercise of its functions or, in the alternative, prejudice the effective exercise by NSW Police of its functions.
13. The Commissioner submits that information was obtained in confidence and that this information facilitates the effective exercise of the Commissioner's functions. It is also submitted that effective exercise of the functions of the Commissioner would be prejudiced by the disclosure of the information. The relevant functions being exercised that would be prejudiced are the law enforcement and investigative functions of the NSW Police Force as set out in s 6 of the Police Act 1990 (NSW). The Commissioner contends that it is well established principle that for an agency to satisfy the Tribunal that information was obtained in confidence it is not necessary to show that there was an express obligation or understanding that the information was given in confidence. It is sufficient for this to be implied from the circumstances in which the information was given (for instance, Vella v Commissioner of Police, NSW Police Force (2009) NSWADT 68). The Commissioner also relies on the decision of the Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri (2012) NSWADTAP 19, where it was held that the question of whether information is confidential is to be examined by reference to the conditions under which the agency conducts the service within which the information was received. The focus should be on the point of receipt and the administrative conditions and community understanding which surround it.
14. Relevantly, the Commissioner relies on Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 at [69], where the Supreme Court held: When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that 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 a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of criminal investigations reveal 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.
15. On the question of prejudice, the Commissioner relies on the decision of the Appeal Panel, in a different context, in Director General, Department of Education and Training v Mullet and Randazzo (No. 2) [2002] NSWADTAP 29 at [50], where it was observed as follows: We acknowledge that conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future co-operation with similar inquiries. However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication that may have previously occurred; and some might withdraw cooperation completely out of fear reasonable or otherwise have adverse repercussions flowing from publicity. To that extent, a relevant prejudice to the future supply of information would arise.
16. The Commissioner relies on the NSW Police Force Standards of Professional Conduct, its Customer Service Charter and reg 76 of the Police Regulations 2015, all of which impose obligations on NSW Police to handle information provided to them confidentially and to maintain confidentiality in relation to this information. The Commissioner also relies on the statement of Paul Brodie, who states that it is the practice of NSW Police to preserve confidentiality in relation to information obtained in an investigation, except to the extent disclosure is necessary for the purposes of an investigation and legal proceedings. He states that NSW Police depend on the willingness of members of the public to cooperate with it, including by providing information to assist investigations and other functions. It is his view that it is generally recognised that cooperation depends on the expectation that information provided will be kept confidential. He also states that disclosure of certain information may breach personal privacy and additionally expose a person to physical and psychological harm if the information is released. In his opinion, release of information supplied by members of the public may have a systemic impact on the capacity of the NSW Police Force to effectively exercise its functions if there is a loss of trusted that information provided would be kept confidential.
17. This evidence is from an experienced police officer. It is authoritative and is consistent with the Tribunal and Court authorities referred to above. Mr Kent has not provided any evidence to the contrary. Nor does he challenge this evidence. His submissions are primarily to the effect that the public interest in favour of disclosure and his personal circumstances should outweigh these matters.
18. In the present case, it is also relevant to note that some of the information redacted has been provided by an informant. While the informant has given the police their name and contact details and this has been recorded by police, I accept the evidence of Mr Brodie that it would be usual to preserve the confidentiality of the informant's name and details unless this information became critical to an investigation or criminal proceeding. I also accept his evidence that it could be prejudicial to the supply of information by members of the public if the details of informants and the information they provide is released. It is also relevant to note that may be possible to identify an informant by the nature of the information provided.
19. These principles also relate to information provided by any witnesses at the scene of an incident, particularly if there are potential issues about domestic violence.
20. Having regard to the evidence of Mr Brodie, the legal authorities and the well-established principles about the importance of confidentiality in the conduct if police duties and functions, I am satisfied that the disclosure of information provided to police in this context, being the redacted information on pages 2, 4 and 6 of the police report, could reasonably be expected to have the effect of prejudicing the supply to the NSW Police Force of confidential information that facilitates the effective exercise of its functions and prejudices the effective exercise by the NSW Police Force of its functions
21. Accordingly, with the exception of the proforma question on page 3 of the police report (referred to in [41] above), I am satisfied that there is a public interest against disclosure in respect of the information redacted, either on the basis of clauses 3(a) and (b) or 1(d) and (f) in the Table to s 14(2 )of the GIPA Act

Public interest considerations in favour of disclosure

1. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. It is noted that nothing limits any other public interest considerations in favour of disclosure of government information that may be taken into account but includes specific examples of public interest considerations in favour of disclosure of information as a note to s 12(2). These examples can be briefly be described as: disclosure of information that could reasonably be expected to promote open discussion of public affairs and enhance government accountability (12(2)(a)); disclosure of information that could reasonably be expected to inform the public about the operations of the agencies (s 12(2)b)), disclosure of information that could reasonably be expected to ensure effective oversight of the expenditure of public funds (12(2)(c)); information that is personal information of the person to whom it is to be disclosed (12(2)(d)); and disclosure of information that could reasonably be expected to reveal or substantiate that an agency has engaged in misconduct or negligent, improper or unlawful conduct (12(2)(e)).
2. Mr Kent contends that the reason why there is a public interest in disclosure of this information is that it is personal information about him and the disclosure of the information relates to what he alleges is improper conduct by NSW Police in failing to properly investigate the other protagonist to the incident. He alleges there is misandry in the NSW Police Force. He does not make submissions to the effect that disclosure of the information would advance any of first three examples in s 12(2), although it could be inferred that his contention raises an argument that disclosure of the information about the incident could reasonably be expected to inform the public about how NSW Police operate in dealing with domestic violence incidents. In my view, the police report relates to a specific investigation and disclosure relating to one incident would not of itself be expected to inform the public more generally about the operations of NSW Police in these circumstances. As such, I am not satisfied that the redacted information falls within this example.
3. I accept that the information sought by Mr Kent is personal information about him because it relates to an incident in which he was involved, and thereby directly falls within the example in s 12(2)(d). He alleges that NSW Police have a discriminatory approach which is revealed by the way that they investigated this incident. Having review the redacted information, I am not not of the view that this information could reasonably be expected to reveal or substantiate that NSW Police have engaged in negligent, improper or unlawful conduct, falling within s 12(2e). On the face of the reporting, it appears that NSW Police have taken a neutral reasonable approach in responding to the incident. Despite this, Mr Kent makes this contention and seeks to explore the issue of whether NSW Police have adopted a discriminatory approach and information about what they have reported may be relevant to this ground, even though it does not in my view establish or support his allegation.
4. Accordingly, I accept that these two matters are public interest considerations in favour of disclosure in respect of the police record of what happened at the incident. However, this does not extend to the other information redacted, which includes details of the informant, the information provided by the informant, which is more general in nature, and the personal information provided by victim 1, including details of her injuries. This information is not personal information about Mr Kent, and it is difficult to see how information about any injury sustained by victim 1 and any treatment raises an issue of misconduct or improper or unlawful conduct by NSW Police.
5. Mr Kent also states that he seeks the information because it is relevant to another claim either made by victim 1 or that he proposes to make in relation to victim 1 and about his mental health issues. While information about what the victim said about this "injury" at the time may be relevant to any subsequent claims, the details of which were not provided by Mr Kent, the connection is not immediately obvious, nor does it fall within the specific examples referred to in s 12(2). There may be a public interest in favour of disclosure to support any claim proposed to be made by Mr Kent against victim 1 but the details of this are vague. Further, if Mr Kent proposes to make an application or has already made an application against victim 1, he may do so and more specific and authoritative details about this issue would be disclosed through any court process either in a claim that he makes or if he is defending a claim. At the hearing, Mr Kent said the victim 1 made a claim about an injury but that she did not seek treatment for this injury. This information would be apparent or disclosable from other records and appears to be information that Mr Kent knows or suspects in any event. Accordingly, I am not satisfied this public consideration in favour of disclosure is established and I note that there is some overlap between this and consideration of personal factors, examined below.

Consideration of personal factors of the application

1. Under section 55 of the GIPA Act, in determining whether there is an overriding public interest against disclosure of information, an agency (and therefore the Tribunal) is entitled to take into account personal factors of the application call which includes the applicant's identity and relationship with any other person, the applicant's motives for making application and any other factors particular to the applicant. These personal factors can be taken into account as factors both in favour of and against providing access.
2. In the present case, one of Mr Kent's stated motives for making the access application is because he wants to use this information in making claim and "wants justice" and the fact that NSW Police did not remove victim 1 from his house is something for which he seeks address. It is unclear, but it is apparent from Mr Kent's submissions that he was subsequently involved in some dispute with victim 1 that he states cost him "thousands in damages". Particulars and evidence of this claim have no being provided, however, if the claim is that Mr Kent was the tenant of the property and he subsequently had difficulty evicting victim 1 from the property, there is nothing in the police report that would particularly assist him in that regard, given that Mr Kent already has provided evidence from others about what is said to have happened at the property and damage caused by victim 1 that he could rely on in making any claim. Accordingly, while I accept that there was the relationship between Mr Kent and victim 1 and that he has genuine motives for seeking access to the information, these personal factors weigh in favour of disclosure, but not strongly so.

Public interest test - balancing exercise

1. Section 13 provides that there is an overriding public interest against disclosure if, and only if, there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 15 sets out the principles that apply to the public interest determination and relevantly provides the agencies must exercise their functions so as to promote the object of the Act. The Commissioner submits where the balance lies between competing interests it is "a question of fact and degree requiring the weighing of competing matters and is not a task that is amenable to mathematical calculation" (referring to Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94] and Salmon v Department of Justice (Corrective Services NSW) [2014] NSWCATAD 160 at [46]).
2. As already noted, I am satisfied that the public interest considerations against disclosure information identified by the Commissioner have been established, namely on the basis the disclosure could reasonably be expected to, in respect of some of the redacted information, reveal personal information, and in respect of the reports about the incident provided by witnesses and the informant, could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the Commissioner's functions and/or prejudice the effective exercise by the Commissioner of the functions more generally. These public interest considerations weigh strongly against disclosure, particularly when the combined effect of these considerations is taken into account.
3. The effectiveness of law enforcement and the investigative functions undertaken by NSW Police are fundamental to responsible and effective government and in upholding the law. I accept the evidence provided and submissions made by the Commissioner about the importance of confidentiality and trust and integrity in law enforcement procedures and processes. Relevantly, principles about these matters have been incorporated into regulation and the relevant guidelines and codes of conduct for the NSW Police Force. I accept there is evidence and well-established authority, also supported by the court and Tribunal precedent and commentary, that there is a community expectation that information provided during the course of an investigation will be kept confidential, unless it is required to be disclosed through court or enforcement/investigation processes or, having undertaken the weighing exercise established under the GIPA Act, where it is appropriate and justified.
4. On the other hand, the public interest considerations in favour of disclosure as outlined above do not weigh strongly in favour of disclosure because those considerations are personal to Mr Kent, he has not established grounds as to why disclosure of this information is in the public interest more generally and the information sought will not achieve the purpose for which the information is sought in any event.

Conclusion

1. Accordingly, I am satisfied on the facts of this case and the material before me that, with the exception of the proforma question on page 3 of the police report (referred to in [41] above), there is an overriding public interest against disclosure of the information that has been redacted in the police report. As such, part of the police report, being the redacted question on page 3, should be released but the other redacted material should not.

Orders

1. The respondent's determination to refuse to grant access to the redacted information is affirmed, with the exception of the finding made at paragraph 95.

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: 21 October 2024