Klaric v Commissioner of Police

The issues

1. The decision under review is the decision of 16 August 2018 as varied by the supplementary decision made on 6 June 2019. The issues to be considered in this application are whether the Commissioner: 1. holds the information sought by Mr Klaric; 2. can refuse to deal with aspects of the access application because he has already decided a previous application (s. 60(1)(b) GIPA Act); and 3. can refuse access to some information on the basis that there are public interest considerations against disclosure and, in particular, whether there is an overriding public interest against disclosure in circumstances where it could reasonably be expected disclosure would: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14 Table, cl 1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (s 14 Table, cl 1(e)); 3. prejudice the effective exercise by the agency of the agency's functions (s 14 Table, cl 1(f)); 4. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (s 14 Table, cl 1(g)); 5. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (s 14 Table, cl 1(h)); 6. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (s 14 Table, cl 2(b)); and 7. reveal an individual's personal information (s 14 Table cl 3(a)).

The items in dispute

1. It is convenient to deal with the items in dispute in the order they appear in the submissions made by Mr Klaric.

Items 1-12 - refuse to deal

1. Items 1 to 12 are requests for information relating to incidents that occurred prior to 19 June 2013.
2. In his previous GIPA request dated 10 October 2013 (the 2013 application) Mr Klaric requested: [A] copy of all the records, personal information, notes, opinions, remarks, et cetera held, about myself, in the Police files and computer systems that are accessible to the Police, including the information available to the Police on their vehicle mobile data terminals. Basically all information and records linked to my name.
3. In response to the 2013 application, Mr Klaric was provided with certain information up to 19 June 2013. The position of the Commissioner in relation to Items 1 to 12 is that this information was dealt with in response to the previous access application made under the GIPA Act for all information about Mr Klaric held by the police up to 19 June 2013. The Commissioner submits he may therefore refuse to deal with this part of the current access application under s 60(1)(b) of the GIPA Act.

Items 1 and 2

1. These items relate to an incident which occurred on 1 August 2011 in Luxford Road, Mount Druitt, when Mr Klaric's vehicle was stopped by police officers. Items 1 and 2 are requests for the notebook records of two police officers. In response to the 2013 application Mr Klaric had been provided with a COPS report of this incident. He believes that notebook entries by the two police officers should exist.
2. Mr Matthew Smith, Senior Advisory Officer, InfoLink, NSW Police Force, gives evidence that all information that was located was provided in response to the 2013 application.

Item 3

1. Item 3 is a request for the names of the two police officers referred to in items 1 and 2. The position of the Commissioner is that in response to the 2013 application records which contained the names of police officers were released to Mr Klaric. There are no other records which contain the names of other police officers involved in this incident.

Item 4

1. This item also refers to the same incident. Some information in a COPS report released to Mr Klaric in response to the 2013 application was redacted on the basis that its disclosure could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (s 14 Table, cl 2(b)). In this request Mr Klaric seeks access to the redacted information.

Item 5

1. On 12 April 2013 Mr Klaric while driving in Fairfield was pulled over by a Highway Patrol officer for the purpose of a vehicle safety check. He states that the officer was Constable Van Der Weegen. Mr Klaric states he later made a complaint about the Highway Patrol officer. He seeks access to Constable Van Der Weegen's logbook record of this incident which he believes exists.
2. The Commissioner states that no such logbook entry was located in response to the 2013 application.

Item 6

1. This item also concerns the 12 April 2013 Fairfield incident. Mr Klaric requests access to all information written about him and this incident and refers to the police commander's notebook and a COPS report. He believes these items should exist.
2. The Commissioner states that no other records were located in response to the 2013 application.

Item 7

1. This item concerns an incident on 28 April 2013 in Federal Street, West Ryde when Mr Klaric was pulled over by police while driving. One of the police officers was Brendan Smith. In response to the 2013 application Mr Klaric was provided with a copy of Brendan Smith's notebook entry in relation to this incident. Mr Klaric believes this notebook entry is not authentic and now seeks disclosure of the "real" notebook and disclosure of all redacted sections. Mr Klaric believes the notebook entry should be longer than the one with which he was provided.
2. The Commissioner states that the entire notebook entry (with redactions) was provided in response to the 2013 application.

Items 8 and 9

1. Item 8 is a request for access to the notebook entry by Brendan Smith's partner, Constable Cairns, in relation to the same incident. None was produced in response to his previous request but Mr Klaric believes one should exist. Item 9 is a request for the disclosure of the COPS record of the incident and any other records of the incident. Mr Klaric states he has been told that a COPS record may not exist and he has previously been provided with all information.
2. The Commissioner states that no notebook entry by Constable Cairns or a COPS record or other information was located in response to the 2013 application.

Item 10

1. This item is again in relation to the same incident in Federal Street, West Ryde on 28 April 2013 and requests access to all notes recorded relating to this incident by Sergeant Philip Skaysbrook. Mr Klaric believes this record should exist.
2. The Commissioner states that no record by Sergeant Philip Skaysbrook was located in response to the 2013 application.

Items 11 and 12

1. These items concerned an incident which occurred in George Street, Parramatta on 19 June 2013 in which Mr Klaric was apparently arrested. He seeks access to the notebook records of two officers - George Zaiter and John Robert Holstein. It appears he was previously provided with a COPS record but not with notebook records about this incident.
2. The Commissioner states that no such records were located in response to the 2013 application.

Items 1 - 12 consideration

1. In accordance with s 60 of the GIPA Act an agency can decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(b) is relevant to this application and provides: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): … (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application
2. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1).
3. There are two components to s 60(1)(b) of the GIPA Act. The first is whether the agency has already decided a previous application for the information concerned in the present application, or information that is substantially the same as that information; and secondly, whether there are reasonable grounds for believing that the agency would make a different decision on the application.
4. The terms of the 2013 application are set out above. In general terms, Mr Klaric sought access to all information and records about him held by the NSW Police Force. The current application seeks access to "all information [relating to him] on police records from 1/8/2011". Both applications refer to information on police vehicle information or data systems. Having compared the two access applications, I am satisfied that the information sought in the present application is substantially the same as that sought in the 2013 access application.
5. The Commissioner determined the 2013 application by releasing in full four COPS reports and five with redactions, one Information Report Summary was released in full and another in part and two police notebook entries were released in full. A decision was also made that the Commissioner did not hold any other information, relying on s 58(1)(b) of the GIPA Act.
6. Mr Klaric insists that there is other information which exists which should have been produced in response to the 2013 application. As was apparent at the hearing, however, this is speculation on his part. The Commissioner's response to the 2013 application was to provide certain information to Mr Klaric. Mr Klaric sought internal review of that decision and on that review was in fact provided with further information. Other information was withheld as the Commissioner formed the view that there was an overriding public interest consideration against disclosure. Mr Klaric has not provided any submissions or evidence which would indicate that that decision was in error. Indeed, as noted above, the Information Commissioner was satisfied that the Commissioner's decision was justified.
7. I am satisfied that insofar as the present application seeks access to information which pre-dates 19 June 2013, there are no reasonable grounds for believing that the agency would make a different decision on the present application. Both components of s 60(1)(b) of the GIPA Act are therefore established in relation to items 1 to 12.

Items 13 - 27

1. Items 13 to 27 (as described by Mr Klaric) relate to events and requests for information which post-date the Commissioner's response to the 2013 application.

Items 13-15

1. Mr Klaric states that on 14 August 2015 he was at his home when police kept driving past and one vehicle stopped. He said that Sergeant O'Connor came to his door and accused him of running from police and stealing mail from letterboxes. Two other police vehicles and four police officers arrived. Mr Klaric states he heard a female voice on Sergeant O'Connor's radio say "take extreme caution against the male occupant of this residence, he has severe warnings against him". He states there ended up being a confrontation with the police in his front yard.
2. In response to the current access request Mr Klaric was provided with a COPS report dated 17 July 2016 in full and another dated 30 July 2017 with redactions. As noted above, he has also been provided with various COPS reports in response to the 2013 application. In relation to items 13-15 Mr Klaric appears to be seeking access to information that has been redacted from the information provided to him and to information which he believes exists and has not been produced.
3. In Item 13 Mr Klaric seeks the disclosure of all information held about him on the police system that is relayed to police and available in their vehicle display systems. At the hearing Mr Klaric said he was asking for what was broadcast on the radio. By this I understand Mr Klaric to be seeking access to information upon which the statement he states he heard over the radio was based.
4. Mr Matthew Smith, Senior Advisory Officer, InfoLink, NSW Police Force states that NSW Police Force vehicles are fitted with a Mobile Data Terminal (MDT) which is a computer screen which links to the NSW Police Force COPS database and is used by officers in the performance of their duties to check certain information about members of the community, for example, to conduct a search of someone's name in the COPS database. He states that to the extent that information about Mr Klaric held on the COPS database was accessed via the MDT, those COPS events records have been provided to Mr Klaric.
5. The COPS records that have been provided to Mr Klaric in response to this access request have been provided in full or with redactions. The redactions have been on the basis that there is an overriding public interest consideration against release of the information on the basis of various clauses in the Table to s 14 of the GIPA Act. In so far as Mr Klaric seeks access to that redacted material in Item 13, this is dealt with below when considering the public interest considerations for and against disclosure.
6. Mr Smith also states that a number of other systems are installed in NSW Police Force vehicles, although not all vehicles have the same systems. He states that one such system is the In Car Video system (ICV) which is turned on automatically when a police car's lights are activated or can be turned on manually by an officer. The evidence of Mr Smith is that there was no ICV in the relevant police car relating to this incident and the Commissioner submits that no such information therefore exists.
7. Mr Klaric also seeks the notebook records relating to this incident prepared by Sergeant O'Connor (Item 14). He believes that such a record must exist. Mr Smith states searches have not revealed the existence of any records concerning an incident involving Mr Klaric on 14 August 2015.
8. Mr Klaric also sought to be provided with details of the person he states was in fact accused of the crime of stealing from letterboxes (Item 15). At the hearing he agreed that this information was not within the scope of his request as it did not relate to information held about him by the NSW Police Force.

Items 16 - 19

1. These items concern an incident which occurred on 17 July 2016 in Fairfield. Mr Klaric states that he was driving in Fairfield and was followed by a police vehicle through a number of streets. He states he was pulled over and falsely accused of poor driving and that when he confronted police and stated his legal rights, he was arrested. He accuses police of lying about what occurred during the incident. The two police officers involved in the incident were Constable Osbourne and Constable Moran.
2. In response to the access request Mr Klaric was provided with a COPS event record in full relating to this incident and an entry, with redactions, from the notebook of Constable Osbourne. He seeks access to the redacted portions of the notebook entry (Item 17). The Commissioner states that the redacted portions are subject to an overriding public interest consideration against disclosure as set out in clauses 1(f) and 2(b) in the Table to s 14.
3. Mr Klaric requested access to the notebook entry relating to this incident made by Constable Moran (Item 16). Constable Osbourne's notebook entry was however signed by both him and Constable Moran. At the hearing Mr Klaric accepted that no separate notebook entry by Constable Moran exists. He also withdrew his request for the information he described in Item 19 as the information sought was in fact the notebook entry of Constable Osbourne with which he had been provided in response to the application.
4. Mr Klaric states that during the incident the police officers made a phone call to their commander and a conversation ensued. In Item 18 he requests the name of the commander and states that he believes there should be some record or notes of this telephone call. The evidence of Mr Smith is that no details of any such call are recorded in the COPS event relating to the incident and that NSW Police Force does not have a record of telephone calls made by police officers in the course of the performance of their duties. The Commissioner submits this information is therefore not held: s 58(1)(b) GIPA Act.

Item 20

1. Mr Klaric made a complaint about the 17 July 2016 incident and in Item 20 he seeks release of the full report of the police investigation into the incident. Initial searches, as reflected in the original decision in relation to the request, did not reveal any complaint by Mr Klaric or any investigation. In response to information provided by Mr Klaric a document titled "NSW Police Force s150 PDF File, Complaint ID LMI1602791, Complainant Mr Gus Klaric, Complaint Title 'Unnecessary or improper use of arrest', Org Unit managing Fairfield" dated 21 September 2016 was located and this was the subject of the supplementary decision made on 4 June 2019.
2. The Investigation Report was released to Mr Klaric with redactions made on the basis that the there was an overriding public interest consideration against disclosure in accordance with clauses 1(d) - (h) of the Table to s 14 of the GIPA Act.

Item 21

1. Mr Klaric seeks access to all police records relating to an incident which occurred on 31 December 2016 at Merrylands. He states that he had been driving disabled people to Greystanes to show them the Christmas lights and was driving one person home at about 9:30 pm when he was pursued by a police vehicle. He states he was stopped by the police who accused him of having an awful driving record and one of the police officers accused him of running into her with his car. Mr Klaric states that he was at the police station later and lodged a complaint but in the end was made to leave the police station. He believes that records must exist in relation to this incident.
2. The evidence of Mr Smith is that there are no incidents involving Mr Klaric recorded for this date in the COPS database. The Commissioner submits that no information therefore exists in relation to this request.

Items 22-26

1. Items 22-26 relate to an incident which occurred on 30 July 2017 in West Ryde. Mr Klaric states that police officers had crashed their vehicle and he took photos of it. Police demanded he hand over his phone and drivers licence but he refused. He states that police used force and confiscated his phone, crashed tackled him to the ground, arrested him, handcuffed him and charged him. Mr Klaric states he was interviewed at the police station by Gerald Luck who wanted to delete the video from his phone.
2. Mr Klaric requests details of the reason why the police officers crashed their car (Item 22). He states he wants this information because he was accused verbally of causing the crash. The Commissioner submits that this information is outside the scope of the access application as it is not information about Mr Klaric. I agree that the information is outside the scope of the request.
3. In response to his access request Mr Klaric was provided with a COPS event record with redactions relating to this incident. He was also provided with the notebook entry of Constable Daniel Hawkins, also with redactions.
4. Mr Klaric requests that he be given access to the notebook entry made by Constable Leahy who also was at the incident. He states that he would expect that Constable Leahy would have made a notebook entry. Mr Smith provides evidence that no notebook entry by Constable Leahy has been located. The Commissioner submits that no such record exists.
5. Mr Klaric seeks the complete notebook record made by Constable Hawkins (Item 24). He believes that the entry should be much longer than that which he was provided. Redactions were made at the beginning and end of the entry and these redactions note that the information is "not related to requested event". Mr Klaric seeks access to the redacted material. Mr Smith states and the Commissioner submits that the full notebook entry has been provided.
6. I am satisfied from my perusal of the documents and the information provided by the Commissioner that the redacted information concerns other events and is not related to Mr Klaric. I am therefore satisfied that he has been provided with full access to Item 24.
7. Mr Klaric states that other police officers arrived at the scene of the incident and he requests that he be given their names (Item 25). Following the hearing Mr Klaric was provided with the names of the officers in the relevant vehicles.
8. Mr Klaric also seeks any notebook notes or computer entries made by Gerald Luck regarding his interview with him at the police station (Item 26). He states that a record should have been made of the interview. Mr Smith states that he contacted Constable Gerald Luck to undertake a search for any entry related to Mr Klaric on 30 July 2017. Constable Luck informed him that no records are held. The Commissioner submits that no record of the interview is held.

Item 27

1. Mr Klaric seeks access to "all the dates, times and persons who have accessed my records on the police computer system" (Item 27). The Commissioner states that this is not a record that is held by the NSW Police Force. Mr Smith explains that an audit that would reveal this information can be created by an officer of the NSW Police Force's Professional Standards command at the request of an officer or command. No such audit has been requested and therefore no such record exists.
2. At the hearing, Mr Klaric said he understood that no such document presently exists.

Consideration of remaining issues

1. The two broad issues which remain to be decided in relation to Items 13 - 27 are whether the agency holds further information in relation to Mr Klaric's request and whether there is an overriding public interest consideration against disclosure in relation to information which has been withheld from Mr Klaric.

Is there further information?

1. Under s 53 of the GIPA Act, an agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
2. Under s 58(1)(b) of the GIPA Act, an agency may decide an access application by deciding that the information is not held by the agency. That is a reviewable decision under s 80(e). The burden of establishing that the decision that an agency does not hold information is justified lies on the agency: GIPA Act s 105(1).
3. In reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches to locate relevant documents. The Tribunal has generally applied the approach of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464. In that decision the Commissioner outlined a two-stage approach to the question of what constitutes an adequate search. The first is to consider whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency. If that question is answered in the affirmative, then to consider whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances. (See Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5; McClymont v Department of Family and Community Services [2017] NSWCATAD 202.)
4. The Appeal Panel addressed the application of s 105 of the GIPA Act concerning the burden on the agency to justify its decision that it does not hold information in Webb v Port Stephens Council [2018] NSWCATAP 224 at [37] where it agreed that the correct approach is explained in Amos v Central Coast Council [2018] NSWCATAD 101 at [39]: The burden of establishing that the implicit decision that the Council does not hold information is justified lies on the Council: GIPA Act, s 105(1). The Council submitted that the onus is on the applicant to establish that the additional information exists. That proposition is not supported by the legislative scheme, nor by authority. In Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69], a case dealing with the Freedom of Information Act, Judge O'Connor remarked that an applicant "must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists [that is, that there is further material]." These remarks were applied in the context of the GIPA Act in Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [22]. These decisions suggest that the applicant has what is sometimes referred to as a "practical onus" to establish the existence, or possible existence, of further information. However, these comments should not be taken to detract from the respondent's legal onus to justify its decision under s 105 of the GIPA Act.
5. The Appeal Panel noted at [36] that, where there is relevant and credible material presented to support the decision, in practical terms, a burden will fall on the applicant to try and overcome or undermine the case from the agency. It is not enough for an applicant to base the assertion on a deep-seated distrust of the agency: Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69].
6. What constitutes a reasonable search will vary with the circumstances, however, key factors include the clarity of the request, the way the agency's record keeping system is organised and the ability to retrieve any information that is the subject of the request: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. That there may be some weaknesses in an agency's searches or failures in recordkeeping within the agency, does not necessarily lead to the conclusion that the search has not been reasonable: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49].
7. While it is unfortunate the documents relevant to Item 20 of Mr Klaric's request were not identified until close to the time of the first hearing, I am not satisfied that the fact that particular document was located establishes that other material exists. Mr Klaric makes various assertions that certain information that he seeks, primarily notebook and other entries relating to various incidents, should exist. The assertion appears to be made on the basis of his belief that in the normal course of policing these entries and records would be made. I accept these assertions are reasonable in order to at least establish the possibility that information of the kind sought exists. It remains to consider therefore whether in all the circumstances the search efforts made by the Commissioner to locate the requested documents have been reasonable.
8. Mr Matthew Smith has set out the steps which were taken to identify information caught by the access request made by Mr Klaric. This involved searches of the COPS database and contact with the Fairfield Police Area Command and the Ryde Police Are Command seeking access to records held in relation to Mr Klaric, including notebook entries. Mr Smith also made direct contact with other areas of the NSW Police Force and individual officers in relation to some items requested by Mr Klaric.
9. I am satisfied that the searches that were undertaken by the Commissioner were reasonable. Undertaking additional searches would involve a substantial and unreasonable diversion of resources of the respondent, and accordingly need not be undertaken. I am therefore satisfied that the decision that the Commissioner does not hold information is justified.

Is there an overriding public interest against disclosure?

1. Redactions were made to two documents released to Mr Klaric in the 16 August 2018 decision - the notebook entry by Constables Osbourne and Moran about the 17 July 2016 incident and the COPS report of the 30 July 2017 incident. Redactions were also made to the documents released in the 4 June 2019 decision in relation to Item 20. Before dealing with the redactions in detail, it is worth setting out the approach to be applied in considering whether there is an overriding public interest against disclosure of government information.
2. The objects of the GIPA Act as set out in s 3 are to open government to the public. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure" (s 5 of the GIPA Act). There are two situations in which there will be an overriding public interest against disclosure. The first concerns government information described in Schedule 1 to the GIPA Act and is not relevant to these proceedings.
3. In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a table in s 14 of the GIPA Act.
4. In the second situation, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.
5. In this application, the respondent refers to public interest considerations set out in the table in s 14 and submits that those considerations outweigh the considerations in favour of disclosure.

Public interest considerations in favour of disclosure

1. In addition to the general presumption in favour of disclosure of government information set out in s 12 of the GIPA Act, the Commissioner identifies the following as considerations in favour of disclosure:

• the records generally contain information which relates to Mr Klaric or which is known to him; and
• the public has a general right to access government information held by agencies.

1. Mr Klaric states that there is a public interest consideration in favour of disclosure as it is in the public interest to reveal corruption and misconduct on the part of police officers. In his supplementary decision of 4 June 2019 the Commissioner also identified that there is a general public interest in the disclosure of information which could reasonably expect to reveal or substantiate that an agency or member of that agency has been engaged in misconduct or negligent, improper or unlawful conduct.
2. I agree with the parties' characterisation of the public interest considerations in favour of disclosure.

Public interest considerations against disclosure

1. The public interest considerations against disclosure identified by the Commissioner as set out in the table to s 14 of the GIPA Act are set out above in [7].
2. Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
3. The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... 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 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.
4. In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: "[25] … The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC."
5. The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
6. The public interest considerations in cll 1(e), (f) and (h) and cl 2(b) require that there be some relevant "prejudice" to the agency. The term "prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from (Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]). The Appellant needs to show, however, more than a mere possibility, risk or chance of prejudice and it needs to be based on real and substantial grounds (Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at [22]).

Notebook entry 17 July 2016 and 30 July 2017 COPS report

1. Information was redacted from the notebook entry made by Constables Osbourne and Moran about the 17 July 2016 incident on the basis of cll 1(f) and 2(b) in the table to s 14. Similar information was redacted from the COPS report of the 30 July 2017 incident on the same basis. For ease of reference, those clauses provide that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to:

• prejudice the effective exercise by the agency of the agency's functions (cl 1(f)); and
• prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (cl 2(b)).

1. Confidential evidence was provided by Senior Constable Debbie Taylor-Johnson in relation to the information redacted.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. The Commissioner submits that disclosure of the redacted information could prejudice the NSW Police Force in exercising its crucial policing functions, which include the prevention and detection of crime and the protection of persons from injury or death and property from damage. He further submits that the effectiveness of any law enforcement agency depends heavily on the use of methods and techniques for preventing and detecting possible crimes. Details about such techniques and methods, and even the availability of such techniques and methods, must remain confidential to ensure their continuing value for law enforcement purposes.
8. I agree with the submission of the Commissioner that there is a significant public interest in ensuring that no prejudice is suffered by the NSW Police Force in exercising its crucial policing functions and that this public interest consideration against disclosure should be given substantial weight. I am also mindful, as the Commissioner has noted, that the information may be described as the personal information of Mr Klaric which is a factor in favour of disclosure which should also be given considerable weight.
9. Some information in the 30 July 2017 COPS report was redacted on the basis that its disclosure would reveal personal information (cl 3(a)). The information concerned is information about victims and witnesses. While the victims and witnesses are police officers whose names have been disclosed, I am satisfied that the redacted information is personal information about them which has not already been publicly disclosed as it concerns addresses, telephone numbers and other personal identifiers.
10. I am therefore satisfied that disclosure of the information could reasonably be expected to reveal an individual's personal information. The public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. [NOT FOR PUBLICATION] Mr Klaric has not advanced any particular argument about why he should be provided with the personal information of the officers concerned other than to rely on the public interest considerations in favour of disclosure as discussed above.

Item 20

1. Item 20 was the subject of the supplementary decision made on 4 June 2019. The document which was released to Mr Klaric with redactions is a report of an investigation conducted by the NSW Police Forces Professional Standards Command under Part 8A of the Police Act 1990 into a complaint made against police by Mr Klaric. The Commissioner submits that there is are public interest considerations against disclosure of the redacted information as disclosure could reasonably be expected to: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14 Table, cl 1(d)); 2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (s 14 Table, cl 1(e)); 3. prejudice the effective exercise by the agency of the agency's functions (s 14 Table, cl 1(f)); 4. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (s 14 Table, cl 1(g)); and 5. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (s 14 Table, cl 1(h)).
2. I note before proceeding to consider these matters that the Commissioner agreed during the hearing to the release of the information redacted from the cover sheet of the s150 pdf file (p 26 of the compilation) (Mr Klaric's name).
3. Detective Chief Inspector Stephen Newton, Professional Standards Manager, Professional Standards Command, NSW Police Force provided confidential evidence to the Tribunal about the investigation of complaints about police officer misconduct. I accept his evidence about the conduct of such investigations.
4. As noted by the Tribunal in Applicants v Commissioner of Police [2015] NSWCATAD 22 at [70] and confirmed by the evidence of Detective Chief Inspector Newton in this matter, the Commissioner's functions under Part 8A of the Police Act include receiving a complaint (s 130(1)), deciding whether to investigate a complaint (s 139), investigating a complaint or causing a complaint to be investigated (s 144) and providing the complainant with advice as to action taken as a result of the complaint (s 150(b)). In particular, the effective investigation of a Part 8A complaint is dependent upon the receipt of information provided by police officers in interviews. Further, the Commissioner's complaint handling functions generally are facilitated by an investigator providing a comprehensive report.
5. The Tribunal has had reason to examine the nature of investigations under Part 8A of the Police Act for the purposes of considering whether access should be provided to an investigation report on a number of occasions. Part 8A makes it clear that such investigations are to be conducted on a confidential basis. Invariably the Tribunal has found that police officers and complainants may be dissuaded from reporting misconduct or participating fully and frankly in investigations in future if they cannot be assured that the information they provide will be kept confidential. The Tribunal has also found that disclosure of an investigation report would prejudice the future supply of complaint information to the NSW Police Force, and prejudice the effectiveness of internal investigations into police officers in the future, particularly in circumstances where it is desirable that complainants and witnesses can come forward with confidence that their personal details will not be disclosed. The Tribunal has also accepted that revealing how an internal disciplinary matter is investigated is undesirable and may prejudice the effectiveness of future investigations: McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53; Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73; McLachlan v Commissioner of Police, NSW Police Force [2019] NSWCATAD 109.
6. In this case I also find that the public interest considerations against disclosure of the withheld information are supported by the evidence provided by Detective Chief Inspector Newton. These considerations are compelling and significant.

Balancing the public interest

1. I have found that each of the public interest considerations against disclosure relied upon by the Commissioner in relation to the notebook entry of 17 July 2016, the 30 July 2017 COPS report and the investigation report in Item 20 is present in this case. These are to be balanced against the public interest considerations in favour of disclosure as set out above.
2. Balancing the competing public interest considerations is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation" (Hurst v Wagga City Council [2011] NSWADT 307 at [70]).
3. In relation to the personal information redacted from the 30 July 2017 COPS record, I am satisfied that in this matter the public interest considerations against disclosure outweigh the public interest in favour of the disclosure of the personal information that has been redacted. There are clearly personal and operation reasons why that is so.
4. So far as the redactions from the notebook entry by Constables Osbourne and Moran and the 30 July 2017 COPS record on the basis of cll 1 (f) and 2(b) are concerned, I am satisfied, particularly in light of the evidence provided by Senior Constable Taylor-Johnson, that, even though the information sought is personal to Mr Klaric, the public interest considerations against disclosure far outweigh those in favour of disclosure.
5. In relation to Item 20 there are valid public interest considerations concerning accountability and transparency which favour disclosure, particularly whether police officers may have been engaged in misconduct or negligent, improper or unlawful conduct. I am also mindful that the complainant is Mr Klaric and he therefore has a substantial interest in the investigation of his complaint. I am, however, satisfied that the information is particularly sensitive and, having regard to the evidence of Senior Constable Taylor-Johnson and Detective Chief Inspector Newton, I am satisfied that there is an overriding public interest against disclosure for the reasons provided by the Commissioner.
6. The correct and preferable decision, therefore, other than in relation to the information which the Commissioner released or agreed to release to Mr Klaric during the course of proceedings, is to affirm the decision under review.

Orders 1. The Tribunal notes that the information sought by the applicant in Item 25 was released to the applicant during the hearing. 2. The Tribunal also notes that the information redacted from the cover sheet of the s150 pdf file referred to in Item was agreed to be released to the applicant. 3. The decision of the respondent is otherwise affirmed.

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: 10 February 2020