Langker v Department of Premier and Cabinet; Langker v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-08-11

e Mountains City Council [2020] NSWCATAD 121 McDonald v Commissioner of Police, NSW Police Force [2019] NSWCATAD 66 Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 Raven v The University of Sydney [2015] NSWCATAD 104 Re Southland Coal Pty Ltd (in liq) (2006) 59 ACSR 87 Richards v Commissioner, Department of Corrective Services (NSW) [2011] NSWADT 98 Saggers v Environment Protection Authority [2013] NSWADT 109 Simring v Commissioner of Police (NSW) [2009] NSWSC 270 South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 Thomson v Commissioner of Police (NSW) [2021] NSWCATAD 53 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Texts Cited: Macquarie Dictionary Category: Principal judgment Parties: 2023/00088474: Kristo Langker (Applicant) Department of Premier and Cabinet (Respondent) Also heard: Commissioner of Police, NSW Police Force (see s 104(3), Government Information (Public Access) Act 2009) Information Commissioner (see s 104(1), Government Information (Public Access) Act 2009)

2023/00157675: Kristo Langker (Applicant) Commissioner of Police, NSW Police Force (Respondent) Information Commissioner (see s 104(1), Government Information (Public Access) Act 2009) Representation: Counsel: C Parkin & S Yates (Applicant)

Solicitors: XD Law, (Applicant) Crown Solicitor (Respondents) File Number(s): 2023/00088474 and 2023/00157675 Publication restriction: Pursuant to s 64(b), (c) and (d) of the Civil and Administrative Tribunal Act 2013 the material filed by the respondent on a confidential basis, those paragraphs of these reasons identified as [Not for publication], the evidence given in private before the Tribunal and the record of that part of the proceedings conducted in private pursuant to s 49 is not to be released to either the applicant or to the public.

REASONS FOR DECISION

Kristo Langker, the applicant, is a producer for the FriendlyJordies YouTube channel which features commentator and comedian Jordan Shanks-Markovina. On 4 June 2021 Mr Langker was arrested by the Fixated Persons Investigation Unit, NSW Police Force and charged with stalking and intimidating former NSW Deputy Premier John Barilaro. Mr Langker pleaded not guilty to all charges. The charges were withdrawn in March 2022.
Mr Langker contends that the allegations made against him were misconceived states that the conduct of police in relation to the charges has been called into question in the NSW Parliament. The matter has also been the subject of considerable reporting and comment in the media.
The proceedings before the Tribunal concern two applications made by Mr Langker seeking access to certain information under the Government Information (Public Access) Act 2009 (the GIPA Act).
Mr Langker made an application to the Department of Premier and Cabinet (DPC) on 22 November 2022 seeking access to the following information: 1. Communication between the Former Deputy Premier Giovanni Barilaro and his office staff with NSW Police Force regarding Kristo Langker, Jordan Shanks-Markovina, FriendlyJordies and Strike Force Wyargine. We note the Former Deputy Premier's chief of staff, Ms Siobhan Hamblin, has provided sworn testimony she provided a mobile phone and laptop to the NSW Department of Premier and Cabinet on around 21 October 2021. We believe relevant communications will be stored on these devices. We would expect other devices provided to the Department of Premier and Cabinet from other members of the Deputy Premier's office at around this time will contain further relevant communications. We confirm communication includes, but is not limited to, emails (including from the email address siobhan.hamblin@deputypremier.nsw.gov.au), text messages and telephone call logs. We further note this matter is of significant public interest. The arrest and subsequent dropping of all charges against our client was extensively covered in the media. By date: August 2019 to October 2021 By type: emails, letters, file notes, telephone call logs.
DPC made a decision on 20 January 2023 to provide partial access to six documents, being email chains between officers of the NSW Police Force and Ms Hamblin and to refuse access to a further two documents in full. These two documents were unsigned witness statements made by Ms Hamblin and Mr Barilaro. Access to the information was refused on the grounds: 1. that it was conclusively presumed to be subject to an overriding public interest against disclosure under Sch 1 cl 7 of the GIPA Act; and/or 2. it was subject to an overriding public interest against disclosure applying the public interest test under s 13 of the GIPA Act.
I note that DPC has now been replaced by two separate agencies - The Cabinet Office and Premier's Department. In these reasons I will continue to refer to DPC as the respondent.
On 17 March 2023 Mr Langker sought review of that decision by the Tribunal (the DPC application). The Commissioner of Police, NSW Police Force (the Commissioner) exercised her right to appear and be heard in the proceedings under s 104(3) of the GIPA Act. The Information Commissioner also exercised her right to appear and be heard under s 104(1), but ultimately did not take an active part in the proceedings.
On 24 November 2022 Mr Langker made another access application under the GIPA Act to the Commissioner seeking access to certain information. The application was later amended and Mr Langker sought access to: 1. A copy of the Event Report/Case Report in relation to the charges laid against Kristo Langker and Jordan Shanks-Markovina. 2. Copy of correspondence from the complainant or individuals acting on the complainant's behalf to the investigators. 3. Email correspondence between investigative officers from the time of arrest, until the time the charges were dismissed. 4. Notebook entries from the investigative officers relating to the investigation.
A decision was not made within the statutory timeframe set out in s 57 of the GIPA Act and, as a result, the Commissioner was deemed to have refused to deal with the application.
On 17 May 2023, the applicant filed an application for review of the respondent's deemed refusal (the NSW Police application). On 30 May 2023 the Commissioner made a late determination of Mr Langker's access application. The Commissioner identified in excess of 2000 pages of documents responsive to the access request. Access to some information was granted in part. Access to the bulk of the information was refused on the grounds: 1. that it was conclusively presumed to be subject to an overriding public interest against disclosure under Sch 1 cll 5 and 7 of the GIPA Act; and/or 2. it was subject to an overriding public interest against disclosure applying the public interest test under s 13 of the GIPA Act.
It is the late determination which is the decision under review in these proceedings. The Information Commissioner also exercised her to appear and be heard under s 104(1) in this matter, but ultimately did not take an active part in the proceedings.

The scope of the review

In relation to the DPC application the issues for determination are:

whether DPC holds further information responsive to Mr Langker's access request;
whether the conclusive presumption in Sch 1 cl 7 applies to certain information; and
whether there is an overriding public interest against disclosure in relation to the balance of the information sought to be withheld.

In relation to the NSW Police application the issues for determination are:

whether the conclusive presumptions in Sch 1 cll 5 and 7 apply to certain information; and
whether there is an overriding public interest against disclosure in relation to the balance of the information sought to be withheld.

The role of the Tribunal

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. Section 9 of the GIPA Act gives a person who makes an access application for government information a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. There is no dispute that the information sought by Mr Langker is government information.
A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision to refuse to provide access to information in response to an access application is a reviewable decision for the purposes of the GIPA Act: s 80 (d). A decision that government information is not held by the agency is also a reviewable decision: s 80(e).
The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
The burden of establishing that a decision made under the GIPA Act is justified lies on the agency: s 105(1) of the GIPA Act. Under s 107 of the GIPA Act the Tribunal is required to preserve the confidentiality of information in relation to which there is, or is claimed to be, an overriding public interest against disclosure.

Evidence before the Tribunal

The material before the Tribunal in these applications includes:

Affidavit of Natalija Nikolic affirmed 28 July 2023
An Aide Memoir prepared by the applicant concerning documents provided to the Legislative Council by the respondents to the GIPA applications under Standing Order 52
Statement of Detective A/Inspector Stephen Hunt dated 12 May 2023
Statement of Eric Rixon dated 13 May 2023
Statement of Detective A/Inspector Stephen Hunt dated 30 June 2023
Statement of Matthew Smith dated 30 June 2023
Affidavit of A/Superintendent Allan Treadwell sworn 3 July 2023
Confidential statement of Detective Inspector Stephen Hunt dated 22 September 2023
Schedule and updated schedule of documents withheld in whole or in part in the NSW Police application
Structure Chart for NSW Police Counter Terrorism & Special Tactics Command

Both parties made written submissions and the Commissioner filed further confidential submissions after the hearing arose during a confidential sessions at the hearing held in accordance with s 107(2) of the GIPA Act. DPC and the Commissioner also filed with the Tribunal on a confidential basis a copy of the information in relation to which access had been withheld.

DPC application - whether further information is held

Mr Langker states that DPC did not conduct adequate searches for information responsive to his access request. In effect, he asserts that DPC holds further information falling within the scope of his request. DPC states that no further information responsive to the access request is held. The burden is on DPC to prove that the government information applied for is not held by it.
In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [44] the Appeal Panel summarised the Tribunal's task in reviewing a decision of an agency that it does not hold the information sought as follows: 1. identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); 2. determine whether the agency has proved any relevant factual issues on the balance of probabilities; 3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; 4. applying those findings, decide what the correct or preferable decision is; 5. affirm, set aside or vary the agency's decision: s 63(3) of the ADR Act.
Section 53 of the GIPA Act imposes an obligation on an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources".
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].
A cursory search which is unable to find the requested information is unlikely to satisfy the obligation imposed on an agency by s 53: Wojciechowska at [36]. It is a question of fact whether or not the searches that were undertaken were reasonable and adequate: Thomson v Commissioner for Police [2021] NSWCATAD 53 at [57].
As was stated by the Appeal Panel in Wojciechowska at [43], whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether a decision that "information is not held" is the "correct and preferable decision". A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency.
Eric Rixon, Associate Director, Digital Infrastructure Projects and Operations, Digital and Information Branch, DPC, provided a statement and was cross examined at the hearing. He states that he was responsible for coordinating and overseeing the searches that were undertaken for information responsive to the request to DPC. Mr Rixon states that he identified two locations where information may be held, being the Minister's Office shared network "G Drive", and the mailboxes of the former Deputy Premier's staff. At the hearing he also referred to a public folder shared across a Minister's office. He said that when a person leaves DPC their mailbox is retained for seven years. Ministerial office G drives and public folders are also retained.
Mr Rixon stated that the G Drive had been transferred from the Office of the former Deputy Premier, Mr Barilaro, to the Office of the then Deputy Premier pursuant to cl. 8 of Sch. 2 of the Members of Parliament Staff Act 2013 (the MoPS Act). As a result, the contents of the G drive did not form part of the records of DPC.
Mr Rixon states that the mailboxes of the 32 former staff who worked in the former Deputy Premier Barilaro's office between August 2019 and October 2021 were searched to identify any emails with police referring to "Kristo Langker", "Jordan Shanks-Markovina", "FriendlyJordies" or "Strike Force Wyargine". He states that the email chains and statements that were dealt with in the DPC decision were identified.
When asked about the search terms at the hearing, Mr Rixon said these search terms were provided to him by the Legal Branch of DPC and only records with exact matches would be located. His evidence was that, using these terms, records containing "Mr Langker", "Jordan Shanks" or "Friendly Jordies" would not be located. Abbreviations or spelling errors would also not be picked up.
The DPC access application from Mr Langker referred to Ms Hamblin's laptop and mobile phone. Mr Rixon states it is the practice of Digital and Information Branch to wipe any devices upon their return so that they could be either retired or reissued to another staff member. He states he did not undertake any searches of the mobile phone or laptop previously issued to Ms Hamblin as Ms Hamblin's devices would have been wiped of any information on the day, or days immediately following, their return to DPC. He did not check to ascertain if the laptop had in fact been wiped. His evidence also is that in any event documents, the desktop and pictures on the laptop are synchronised to the network. At the hearing he was unable to say if any search of documents of former office staff had been searched in response to the access request but said it was usual practice to do so.
Mr Rixon was referred to a document which stated that on 21 October 2021 the status of the laptop that had been allocated to Ms Hamblin was changed from "Active" to "Storage". He stated that the change to "Storage" meant that the laptop was ready to be handed out to the next person.
Mr Rixon states that DPC does not maintain logs or records of the content of messages sent to and from departmental phones, other than records that Ministerial staff may have saved in systems provided by DPC. He states that staff may screenshot messages that need to be retained for record-keeping purposes and save those screenshots on the G-drive.
DPC submits that the Tribunal may be satisfied that it has undertaken thorough searches for responsive information, consistent with its obligations under s 53 of the GIPA Act, and that is not apparent what further searches could be undertaken to identify further responsive information held by it. In these circumstances, it is submitted that the Tribunal should affirm the implicit decision that no further information is held by the respondent as the correct and preferable decision.
Mr Langker states that the search terms used by DPC were inadequate and it was not reasonable for the terms to be confined in the way they were. He put forward some alternative terms at the hearing which he states should have been used. He refers to Mr Rixon's evidence that he could not say whether the files/documents of former staff had been searched and submits that I could not be satisfied that they had been searched. Mr Langker also submits, on the basis of Mr Rixon's evidence, I could not be satisfied that Ms Hamblin's laptop, which had been specifically identified in the access application, had been searched.
In relation to the search terms, I note that the terms used by DPC were the terms set out in Mr Langker's access request. I also note that the information which was found to be responsive to the searches conducted does in fact include some of the alternative terms referred to by Mr Langker at the hearing which casts doubt on the evidence of Mr Rixon that only exact matches of the full terms would be located. It is far from clear, however, whether that is because, for example, the search term "Langker" in addition to "Kristo Langker" was in fact used or whether using the term "Kristo Langker" will identify records containing the single word "Langker".
An agency is required to undertake reasonable searches to locate information which may be responsive to an access request. It does not, in my view, have to submit every possible permutation of search terms to satisfy the requirement of reasonableness. Indeed, it is unrealistic to expect possible spelling errors to be identified and used as search terms when responding to an access request. However, in the circumstances of the DPC application the scope of the searches appears to have been unduly restrictive by virtue of the limited search terms used to conduct the search.
I accept that the physical laptop previously allocated to Hamblin has not been searched. While Mr Langker sought to cast doubt on whether Ms Hamblin's laptop had been wiped in accordance with the usual practice, there is no evidence that the usual practice did not take place. The fact that the status of the laptop was changed from "Active" to "Storage" on 21 October 2021 in combination with Mr Rixon's evidence, which I accept, that the use of the term "Storage" means that the laptop is ready to be redeployed, strongly indicates that data of a previous user of the laptop had been deleted. In any event, that data (documents, desktop and pictures) had been synchronised to the server and were therefore available to be searched.
The access request sought access to "communications" and referred specifically to emails, text messages and telephone call logs but was not limited to those items. Communication with police could have been through other means including through a letter or other document. Indeed, letters and file notes were also referred to in the access application. It is unclear, however, whether documents which had been synchronised to the server from Ms Hamblin's laptop have been searched. The evidence of Mr Rixon indicates that it is a DPC server that he refers to, but there is no evidence about where those documents are located on the server. It is possible they were synchronised to the G drive which was transferred to the new Minister's office but it is also possible that they are located in a drive under DPC's control. For the sake of completeness a search for such documents should be conducted.
I cannot be satisfied that DPC does not hold further information falling within the scope of the access request. The inclusion of the terms "Langker", "Shanks" and "Wyargine", in my opinion, are more likely to result in "reasonable" searches for the requested information. It is, however, a matter for DPC when undertaking reasonable searches to identify search terms that are not unduly restrictive taking into account the operation of the search engines used for finding information. Searches are also to be undertaken for records responsive to the request in locations other than the mailboxes of the former Deputy Premier's staff as discussed in [39].

Principles relating to disclosure of information

As noted above, under the GIPA Act 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 Sch 1 to the GIPA Act. Once the information is established to be of a kind specified in Sch 1, no further inquiry is made.
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. Under s 13 there is an overriding public interest against disclosure of government information for the purposes of the GIPA Act if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. An exhaustive list of public interest considerations against disclosure are set out in the table in s 14 of the GIPA Act.
In this 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.
Information sought in both the DPC application and the NSW Police application has been withheld on the basis that there is an overriding public interest against disclosure of "a document created by the ... Counter Terrorism and Special Tactics Command of the NSW Police Force" - the conclusive presumption in Sch 1 cl 7 of the GIPA Act. Information has also been withheld in the NSW Police decision upon the basis that it falls within the conclusive presumption in Sch 1 cl 5 that there is "an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)".
Mr Langker accepts that if the withheld information falls within cll 5 or 7, no further inquiry needs to be made. He does not concede, however, that the clauses in fact apply to the information currently withheld.
In relation to the balancing test and the public interest considerations against disclosure, DPC and the Commissioner refer to public interest considerations set out in cll 1(d), 1(f), 1(g), 1(h), 2(b), 3(a) and 3(b) of the table in s 14 and submit that those considerations outweigh the considerations in favour of disclosure.

The conclusive presumption in Sch 1 cl 7

DPC and the Commissioner both submit that certain information falls within the conclusive presumption against disclosure contained in cl 7 of Sch 1. Clause 7 is concerned with documents affecting law enforcement and public safety and, in general, concerns information contained in documents created by a number of named NSW law enforcement units. One of these units is the Counter Terrorism and Special Tactics Command of the NSW Police Force.
When considering whether information falls within a conclusive presumption against disclosure the task of the Tribunal has been described as follows in Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121 at [11]: Unlike information for which public interest considerations against disclosure are claimed, material for which a conclusive presumption is maintained is not assessed or weighted for consideration of release, but rather assessed as to whether it meets the definition of the conclusive presumption descriptor. If such information is assessed as meeting that description then no further assessment or weighting occurs and the material is withheld at that point.
In Broadbent v Commissioner of Police [2021] NSWCATAD 287 the Tribunal analysed the provisions contained in cl 7. Clause 7(b) concerns the Counter Terrorism and Special Tactics Command and the Tribunal concluded at [41] proof that a document was created by the Command is sufficient to enliven the conclusive presumption that there is an overriding public interest against disclosure of the information contained in the document. The document need not have been created by the Command in the exercise of its functions relating to terrorism.
Mr Langker accepts that the conclusive presumption applies to emails created by members of the Counter Terrorism and Special Tactics Command but does not accept that DPC and the Commissioner have discharged the burden of demonstrating that the emails were in fact created by members of that Command or that the Fixated Persons Investigation Unit was part of that Command. He also does not accept that draft witness statements were created by members of the Command.
Detective Inspector Stephen Hunt has provided affidavits in respect of both the DPC application and the NSW Police Force application. DI Hunt is the head of the Security Investigation Unit within the NSW Police Force. He states that the Security Investigation Unit, formerly called the Fixated Persons Investigation Unit, was established in 2017 and forms part of the Counter Terrorism and Special Tactics Command. I have also been provided with an Organisation Chart for the Counter Terrorism and Special Tactics Command which identifies the Fixated Persons Investigation Unit as being part of the Command.
In relation to the DPC application DI Hunt states that several emails within the email chains identified as being responsive to the application were authored by officers of the Fixated Persons Investigation Unit. In his affidavit he identifies the names of those officers. DPC refused access to these emails and to the two unsigned witness statements of Ms Hamblin and Mr Barilaro that were attached to the emails.
DI Hunt states that the unsigned witness statements would have been prepared by officers of the Fixated Persons Investigation Unit on the basis of information provided to the unit by the witnesses. He states that draft witness statements are usually prepared by police officers based on information that has been conveyed to them by a witness. This information is typically provided in a face to face interview with police officers but can also be obtained through email or telephone conversations for the purpose of preparing the final statements. DI Hunt states that when a statement is being taken, it will be typed out by the officer or officers taking the statement and then provided to the witness for their review. The officer will then work with the witness to make any necessary revisions to the statement, until it reaches a point where the witness is satisfied with the record and ready to sign it as an accurate record of the evidence.
A substantial portion of the information to which Mr Langker was refused access in the NSW Police application is said to be information which falls within cl 7. The majority of the withheld pages are emails and their attachments. DI Hunt gives similar evidence in relation to this information as he did with respect to the DPC application.
During the confidential session held at the hearing, the Commissioner identified that certain pages in the information to which access had been refused on the basis of the conclusive presumption in fact do not fall within cl 7 as the relevant communication was not authored by an officer of the Counter Terrorism and Special Tactics Command. These are pages 433-434, 267-274, 901-903 and 985. I am satisfied that that is the case.
In relation to pages 433-434 it is, however, claimed that there is an overriding public interest against disclosure applying the public interest test in s 13 of the GIPA Act. This matter will be dealt with below when considering other material to which it is said there is an overriding public interest against disclosure.
In relation to pages 267-274 and 901-903, the Commissioner does not oppose release of the information except submits that personal information of other persons within the information should not be released. There is some doubt whether page 985 falls within the scope of Mr Langker's request in any event. The Commissioner, however, does not oppose release of the information.
DPC and the Commissioner both submit that, if I am satisfied that the remainder of the relevant documents are created by officers of the Fixated Persons Investigation Unit, I must determine that the correct and preferable decision is to refuse access to the information within the documents, as that information is conclusively presumed to be subject to an overriding public interest against disclosure.
A substantial proportion of the information to which access has been refused are emails authored by officers of the Fixated Persons Investigation Unit, or the Counter Terrorism and Special Tactics Command. This is not surprising considering: 1. the relevant investigation was undertaken by the Fixated Persons Unit; and 2. the access application was framed by reference to correspondence to, and between, investigative officers.
It is apparent from email signatures and the like, the identity of the officers making the communications and the content of the communications that the emails were created by officers within the Fixated Persons Investigation Unit. I am satisfied from the evidence of DI Hunt and the organisation chart provided that the Fixated Persons Investigation Unit formed part of the Counter Terrorism and Special Tactics Command. One email is authored by an officer in the Protection Operations Unit which the organisation chart shows to be part of Counter Terrorism and Special Tactics Command. It is accepted that an email is a document as defined in Sch 4 of the Interpretation Act 1987. I am therefore satisfied that the relevant communications fall within cl 7.
Mr Langker raises an issue in relation to some email chains caught by the request and states that careful consideration needs to be given to who in fact created the emails forming part of the chain. Some emails have been authored by officers of the Fixated Persons Investigation Unit while others forming part of the chain have been created by persons outside that Unit. DPC and the Commissioner both argue that emails authored by persons outside the Unit (if not released) may either be caught by another conclusive presumption (client legal privilege in Sch 1 cl 5) or are subject to the public interest test in s 13 of the GIPA Act. I agree that emails authored by persons who do not fall within cl 7 can only be withheld if another conclusive presumption applies or there is an overriding public interest against disclosure.
The information identified by DPC and the Commissioner as being responsive to the access requests includes signed and unsigned witness statements. The Commissioner and DPC submit that these statements also fall within cl 7 as they are documents created by officers of the Fixated Persons Investigation Unit. The documents include draft and signed statements by Mr Barilaro and Ms Hamblin. There are also signed statements made by other persons.
For information to fall within Sch 1 cl 7 it must be contained in "a document created by" the relevant law enforcement agency. The Macquarie Dictionary relevantly defines "create" to mean "to bring into being; cause to exist; produce".
DI Hunt states that the witness statements would have been prepared by officers of the Fixated Persons Investigation Unit on the basis of information provided by the witness. He states that witnesses typically provide information in a face-to-face interview with officers and officers may also engage with witnesses by telephone and/or email for the purposes of preparing and finalising statements. DI Hunt states that when a statement is being taken, it will generally be typed out by the officer (or officers) taking the statement, and then provided to the witness for their review. He further states the officer will then work with the witness to make any necessary revisions to the statement, until it reaches a point where the witness is satisfied with the record and ready to sign it as an accurate record of their evidence.
Each of the signed and unsigned witness statements bear the name of the person making the statement and the person who either has witnessed the signing of the statement or is the proposed witness to the signing of the statement where the statement is in draft form. I am satisfied that each of the witnesses or proposed witnesses to the statements is an officer of the Fixated Persons Investigation Unit. DI Hunt acknowledged at the hearing that he had not made specific inquiries as to how the witness statements caught by the access applications had been prepared. I am satisfied, however, on the basis of his evidence, from which he did not resile, that the document containing the statement was initially created by an officer in the Fixated Persons Investigation Unit in the matter described by DI Hunt. That officer is most likely to be the officer who has witnessed or is proposed to witness the statement.
DI Hunt was questioned extensively at the hearing about witness statements provided to police. He agreed when questioned that, when a witness signs a statement, they adopt the statement as their own. Mr Langker refers to emails from Ms Hamblin to officers within the Fixated Persons Investigation Unit which refer to attached statements from her and Mr Barilaro and/or changes made to the statements. Mr Langker submits that, once changes are made or a witness signs a statement, it is different to the document that was created by the Counter Terrorism and Special Tactics Command and is no longer the document of the Command.
A distinction needs to be made, however, between a "statement" and a "document". Clause 7 is concerned with a document. As stated above, I am satisfied that the witness statements were prepared by officers within the Fixated Persons Investigation Unit. In my view the documents containing these statements were created by those officers. The fact that some parts of the contents of the document may have been edited, changed in some way or added to, including by being signed by the maker of the statement, does not mean that the document can no longer be said to be created by the Counter Terrorism and Special Tactics Command. In my view, there would need to be fundamental and extensive changes to the content of the document such that the document could no longer be said to be created by the Counter Terrorism and Special Tactics Command but instead is created by the person who makes a change to the contents of the document or signs the document. On the available evidence, I can draw no such conclusion in relation to the signed witness statements.
I am satisfied that the information which is sought to be withheld on the basis of the conclusive presumption in Sch 1 cl 7, including the draft and signed witness statements, does fall within that clause. This aspect of both decisions must be affirmed.

Information subject to a claim of legal professional privilege

The Commissioner submits that some information in respect of the NSW Police application attracts the conclusive presumption in Sch 1, cl 5 of the GIPA Act on the basis there is an overriding public interest against disclosure of that information as it would be privileged from production in legal proceedings on the grounds of client legal privilege.
Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.
In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are: 1. the existence of a client and lawyer relationship; and 2. the confidential nature of the communication or document; and 3. the communication or document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. for use in existing or anticipated litigation.
These considerations are embodied within sections 118 and 119 of the Evidence Act 1995.
A "dominant purpose" is one that predominates over other purposes; it is the prevailing or paramount purpose: AWB v Cole [2006] FCA 1234 per Young J at [44]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 per Finn J; AWB v Cole [2006] FCA 1234 per Young J at [44]; Colefax v Department of Education and Communities [2013] NSWADT 75 at [28].
Claims of privilege may be made over communications with inhouse legal officers, including government inhouse legal officers: see, for example, Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95.
It is not only the primary record of the advice that is privileged. Summaries of the advice and documents recording instructions to provide legal advice attract the privilege if they are prepared or made for the purpose of providing advice to a client: Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 at [30]; Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 at [34].
Where an agency claims that certain information would be privileged from production in legal proceedings on the ground of client legal privilege, it has the onus of establishing this: see GIPA Act, s 105 and Sch 1, cl 5. This means it is required to establish the factual matters necessary to found a claim under s 118 or s 119 of the Evidence Act, including that relevant persons are a client and a lawyer, that a document or communication is confidential and that the dominant purpose for which a communication was made or a document was prepared is one contemplated by the provision relied upon: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [25]. In some cases, it will be obvious from an examination of the written communication itself that the dominant purpose of the communication was the provision of legal advice: Chamley v Sydney Children's Hospital Network [2013] NSWADT 197 at [32].
The privilege extends to any document prepared by a lawyer or client from which the nature of the advice may be inferred: Re Southland Coal Pty Ltd (in liq) (2006) 59 ACSR 87 at [14e]; Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 141 ALR 545 (Gummow J). In Propend Gummow J gives the example of communications between the various legal advisers of the client, draft pleadings, draft correspondence with the client or the other party, and bills of costs: at 597.
Copies of non-privileged documents may be privileged if those copies were made for the "dominant purpose" of a lawyer providing legal advice: Propend at 552-553. On this basis, non-privileged documents copied and compiled for the purpose of instructing a solicitor or briefing counsel may be subject to a claim of privilege.
The information over which client legal privilege is claimed in the NSW Police application may be broadly classified as falling within the following categories: 1. communications between officers of the Fixated Persons Investigation Unit and officers of the Operational Legal Advice Unit; 2. communications between officers of the Fixated Persons Investigation Unit and officers of the Police Prosecutions Command; and 3. communications between officers of the Fixated Persons Investigation Unit and officers of the Office of the General Counsel and the Crown Solicitor's Office.
Superintendent Allan Treadwell is the Commander of the Operational Legal Services Command in the NSW Police Force. He states that the Operational Legal Advice Unit is one of the business units falling within the Operational Legal Services Command and is responsible for providing legal services, including written and oral legal advice, to the NSW Police Force on operational matters. Superintendent Treadwell states that the Operational Legal Advice Unit employed admitted solicitors with current practicing certificates and a number of other officers who are not admitted, but are referred to as "legal consultants".
Superintendent Treadwell states that, where an officer is admitted as a solicitor, this will be apparent in their email sign-off on written communications. He states that, on occasion, advice may be initially drafted by a legal consultant who is not a solicitor but any such advice cannot be finalised and conveyed until it has been settled and adopted by the Manager of the Operational Legal Advice Unit, who must be an admitted solicitor with a current practising certificate.
In relation to the second category of information as set out above, that is, communications with officers of the Police Prosecutions Command, Superintendent Treadwell states that it is not a requirement that police prosecutors be admitted as solicitors, although some are. The Commander of the Police Prosecutions Command, however, must be admitted and hold a current practising certificate. The evidence of Superintendent Treadwell is that prosecutors act as agents of the Commander, and the Commander takes responsibility for all communications and advice given by prosecutors.
I note that Section 117 of the Evidence Act defines "lawyer" to mean an Australian lawyer, a foreign lawyer, or an employee or agent of either of them. The Tribunal has accepted that privilege attaches to the communications of prosecutors, even where prosecutors themselves are not admitted solicitors, by operation of this agency between the prosecutor and the Commander: Campbell v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 12; Agarwal v Commissioner of Police, NSW Police Force [2022] NSWCATAD 331.
The third category of information includes emails between officers of the Fixated Persons Investigation Unit and officers of the Office of the General Council and the Crown Solicitor's Office. Superintendent Treadwell states that the Office of the General Council is a separate Command within the NSW Police Force and all lawyers employed in the Office of the General Counsel must maintain a current practising certificate. He states that the Office of the General Counsel is also responsible for engagement of external legal service providers, such as the Crown Solicitor's Office, with solicitors of the Office of the General Counsel responsible for managing the engagement and interaction between the legal advisers and operational police officers.
In relation to all three categories of information Superintendent Treadwell provides evidence as to the arrangements in place to clearly mark advice as confidential and privileged; to include warnings that communications may contain legal advice subject to legal professional privilege; that communications are marked with the classification "Legal privilege"; and the arrangements for storage of communications in legal files with restrictions on access. He also states that officers understand the confidential nature of the communications and that confidentiality is maintained as a matter of practice. He further states that privilege may only be waived by either the Commissioner or General Counsel.
Mr Langker does not accept that in all instances where client legal privilege is claimed that the dominant purpose of the relevant communications was for the provision of legal advice and/or legal services in connection with litigation that was then ongoing.
The Commissioner has helpfully provided a confidential schedule which sets out the basis upon which privilege is claimed with respect to each document. On the day of the hearing a confidential session was held in which the Commissioner gave further details of her claim for privilege over various documents. I also note that a considerable number of the claimed privileged communications are also said to fall within the conclusive presumption in Sch 1 cl 7 as they are authored by officers of the Fixated Persons Investigation Unit.
Based on my perusal of the documents over which privilege has been claimed it is apparent that the communications are between officers of the Fixated Persons Investigation Unit and the solicitors of the Operational Legal Advice Unit; between officers of the Fixated Persons Investigation Unit and solicitors of the Police Prosecutions Command; and between officers of the Fixated Persons Investigation Unit and solicitors of the Office of the General Council and the Crown Solicitor's Office. I note that the documents appear voluminous but there is a good deal of repetition in their content.
Also from my perusal of the documents, I am satisfied in accordance with the principles set out above in relation to client legal privilege that the communications are for the dominant purpose of seeking or receiving legal advice, including in the context of commenced or anticipated legal proceedings. I am therefore satisfied that the information is subject to client legal privilege. I note that the neither the Commissioner nor General Counsel has waived privilege.
This aspect of the decision to refuse access must be affirmed.

Information to which the public interest test applies

In both applications information has been withheld from Mr Langker on the basis that there is an overriding public interest against disclosure applying the public interest test provided for in s 13 of the GIPA Act. In the DPC application this is generally information supplied by Ms Hamblin to officers of the Fixated Persons Investigation Unit via email in the period April to September 2021. In the NSW Police application it is generally information supplied by third parties to investigating officers of the Fixated Persons Investigation Unit via email in the course of the investigation.
As noted above, in this situation identified public interest considerations against disclosure must be balanced against those public interest considerations in favour of disclosure to determine whether there is an overriding public interest against disclosure.

Public interest considerations in favour of disclosure

Mr Langker refers to the general right of the public to have access to government information set out in s 12(1) of the GIPA Act as a consideration in favour of disclosure. Referring to matters set out in the Note to s 12, Mr Langker also states that the following public interest considerations in favour of disclosure are engaged.

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.

Mr Langker states that there is a real public interest in exposing for public scrutiny and discussion any instance where a person has been wrongly charged with offences against a Member of Parliament. He states that this is particularly the case where the Member of Parliament and/or his staff have been in active communication with the police and potentially urging the charging. DPC and the Commissioner agree that this is a factor to be taken into account, however, do not accept Mr Langker's submissions as to how this consideration arises. They state that the submissions engage in speculation concerning the role of Mr Barilaro and his former staff.
I accept that there is a public interest consideration in favour of disclosure where disclosure could reveal irregularities in the charging of persons with criminal offences. Disclosure of such information could reasonably be expected to enhance the accountability of the relevant agencies. The weight to be given to this consideration, however, must depend on whether disclosure could in fact have the claimed effect.
Mr Langker also refers to an order for papers made by the Legislative Council under Standing Order 52 from DPC and the Commissioner, amongst others. Documents were produced in response to the order in April and May 2022. He states that there are discrepancies between what was produced to the Legislative Council and responses to the GIPA applications and queries why documents were produced to Mr Lanker in response to the GIPA application which were not produced to the Parliament under SO 52. As a result, he states that disclosure of such of the information that has not been disclosed would enhance Government accountability. In particular, Mr Langker states that disclosure would inform public debate about whether there was negligence on the part of DPC in responding to the SO 52 order or improper and unlawful conduct.
DPC and the Commissioner submit that it is difficult to see how disclosure of the limited information in issue in these applications could shed any light on issues relating to the adequacy of production of documents to the Legislative Council such that this would be a public interest favouring disclosure. They note that the call for papers under SO 52 was directed to a number of agencies for different time frames in respect of information in different terms. The call is also dealt with in a different legal framework to an access request under the GIPA Act. While Mr Langker has gone to considerable lengths to set out what was provided to the Legislative Council, he has not provided evidence to support his conclusion that this demonstrates some negligence or wrongdoing on the part of DPC.
In relation to claims that disclosure of the information sought in the access application could inform public debate about whether there was negligence or worse on the part of DPC in responding to the SO 52 order, I also agree with the submissions made by the respondents that it is not the Tribunal's role to determine to determine the adequacy of the DPC response to the So 52 order to put forward a view on the agency's conduct. As has been stated elsewhere, proceedings under the GIPA Act should not be used "as a vehicle for the collateral review of the merits or validity of official action": Raven v The University of Sydney [2015] NSWCATAD 104 at [45]; Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24].

The information is personal information of the person to whom it is to be disclosed.

Mr Langker believes the information concerns allegations of criminality on his part or persons associated with him. Both DPC and the Commissioner acknowledge that the fact that some of the information is the personal information of Mr Langker is a matter that may be taken into account. All parties agree that s 55(2) of the GIPA Act is applicable as it provides that the personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

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.

Mr Langker expresses a concern that inappropriate pressure was brought to bear on police to prosecute him by the former Deputy Premier's staff or by the former Deputy Premier through his staff. He also refers to the response to the Legislative Council's SO 52 order and whether there was sufficient compliance with that order. Neither DPC nor the Commissioner agree that disclosure could reasonably be expected to reveal or substantiate misconduct, but accept that it is a public interest consideration favouring disclosure that disclosure of the information in issue might assist in an assessment of whether there has been misconduct, or negligent, improper or unlawful conduct.
DPC also submits that another public interest consideration in favour of disclosure is that set out in note (b) to s 12(2) of the GIPA Act which states that 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.

Public interest considerations against disclosure

The public interest considerations against disclosure in the table to s 14 identified by DPC and the Commissioner are that it could reasonably be expected disclosure would:

prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions: cl 1(d);
prejudice the effective exercise by an agency of the agency's functions: cl 1(f);
reveal information provided to an agency in confidence: cl 1(g);
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: cl 1(h);
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);
reveal an individual's personal information: cl 3(a); and
contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act): cl 3(b).

I note that not all of these public interest considerations against disclosure are relevant to each page. For example, cl 1(h) is only claimed in respect of a small proportion of the information to which access has been refused. In relation to much of the information to which access has to date been refused, however, it is claimed that several of the public interest considerations against disclosure as set out above apply.
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. 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.
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]: 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.
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].
A number of the public interest considerations against disclosure 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: South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 at [47]; Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to various authorities, the Appeal Panel said at [59]: Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

Clause 1(d) - prejudice supply of confidential information that facilitates effective exercise of an agency's functions, clause 1(f) - prejudice effective exercise of an agency's functions and clause 1(g) - reveal information supplied in confidence

The submissions of DPC and the Commissioner are to the effect that disclosure of the information in issue could reasonably be expected to prejudice the supply to the NSW Police Force of confidential information that facilitates the effective exercise of that agency's functions: cl 1(d). This in turn would have the effect of prejudicing the effective exercise of the NSW Police Force's functions: cl 1(f). In addition, disclosure would reveal information supplied in confidence: cl 1 (g).
The question whether the consideration in cl 1(d) is established involves a relatively abstract analysis looking to the future: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28]-[29]. As was noted by the Tribunal in Collins v Department of Finance, Services and Innovation [2018] NSWCATAD 60 at [61], it must be established that: 1. the information was obtained in confidence; 2. disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in the future; and 3. the information facilitates the effective exercise of the agency's functions.
For information to come within clause 1(d), it must therefore have been obtained in confidence. In Camilleri the Appeal Panel stated that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it": at [34]. In Bright v Eurobodalla Shire Council [2018] NSWCATAD 287 at [44] the Tribunal stated that: 1. the confidential quality of communications is a question of fact; 2. to establish its confidential quality, information must have been supplied under an express or implied pledge of confidentiality; 3. the confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; 4. the confidential quality of the information must be determined in the light of all of the circumstances of the particular case.
In Raven v University of Sydney [2015] NSWCATAD 104 at [62], the Tribunal held that the words "confidential information" do "not connote information which may not be disclosed in any circumstances". The term captures information which is not to be disclosed in ordinary circumstances. This could be the case for example, where the information has been supplied under an express or implied pledge of confidentiality.
Detective Inspector Hunt states that the NSW Police Force is heavily reliant on members of the public making reports and engaging with police officers to provide information about potential offences and risks to persons and property. He states that members of the public who report matters to the police or provide information in connection with an investigation do so with an expectation that the confidentiality of their information will be maintained. He states that people have an expectation that their personal details and information will not be freely divulged or shared by NSW Police. DI Hunt refers to the situation where a matter progresses to the stage where a person makes a formal witness statement and states that, if a matter ultimately proceeds to hearing, there will necessarily, be some disclosure of information supplied by witnesses in the context of, and for the purposes of, those proceedings. However, any disclosure should only occur in that context, and for that purpose. DI Hunt states that information supplied by witnesses should not be released or disclosed for any other purpose.
The Courts and the Tribunal have confirmed in several decisions that confidentiality attaches to information provided to the police by members of the public. The Commissioner and DPC refer to Simring v Commissioner of Police (NSW) [2009] NSWSC 270 at [69] where the Supreme Court found that when a person speaks with police in relation to a criminal offence and reveals sensitive matters, that person expects that statements made will only be used for the purpose of Court proceedings and not otherwise. Mr Langker takes issue with the respondents' submission that Simring supports a conclusion in relation to the confidentiality of such information for the purposes of cl 1(d). This is because the relevant paragraph in Simring goes on to state: 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 a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police. (Emphasis added)
Mr Langker concludes that it is clearly evident that the expectation of limited disclosure could only be said to apply where there is something personal or sensitive about the matters in question and states that it is difficult to see how that could be so in the context of these applications. I note, however, that Simring was dealing with whether a document was an "exempt document" to which access may be refused under the legislation in force at the time. The only exemption argued in that case was the "personal affairs" exemption which may explain the emphasis placed upon the personal nature of the information. In any event, the mere fact that the information is contained within a report or witness statement does not detract from the sensitive or personal nature of such information.
In relation to the confidentiality of information supplied to police, the Commissioner and DPC also refer to the obligation of police officers set out in cl 76(1) of the Police Regulation 2015 that a member of the NSW Police Force "must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone".
The evidence of DI Hunt is that the vast majority of people who speak with police do so on the expectation that their information will be treated confidentially. This is so even though they are aware they may be asked to give a statement and the matter may go to court. His position was challenged by Mr Langker who described it as overblown. DI Hunt acknowledged that police are under an obligation to produce material to an accused and this may include emails, statements, investigators' notes and the like. They must also produce material in response to a subpoena.
DPC and the Commissioner in their submissions agree that information supplied to police can be and is disclosed for the purposes of investigating possible crimes and in legal proceedings. They argue that there is nevertheless a community expectation of confidentiality and disclosure under the GIPA Act is not for either of the above purposes. I note that in Simring the Supreme Court was of a similar view. Smart AJ stated at [69]: 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.
Mr Langker argues that in relation to information supplied to police by Mr Barilaro and Ms Hamblin they could have had no such expectation of confidentiality due to their status as a high ranking politician and a chief of staff. Furthermore, Mr Barilaro was the complainant. As the respondents point out, however, the complaint was made in Mr Barilaro's personal capacity and he and Ms Hamblin should be treated the same as anyone else, despite the positions they held at the time.
In any event, the test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information, but whether the agency will be able to obtain such information in future: Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80 at [38]. As the Tribunal observed in Leydon v Commissioner of Police [2019] NSWCATAD 267 at [33] …the Tribunal should not just look at the issue in isolation, but examine the issue to determine whether the agency's ability to obtain confidential information in future would be impaired.
The Commissioner and DPC further submit that information supplied in confidence to the NSW Police Force by members of the community is crucial to the effective exercise of the investigative, law enforcement and community protection functions of the Police Force. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information in the future: Director General, Department of Education and Training v Mullett (GD) [2002] NSWADTAP 13 at [58], Camilleri at [26]-[29], Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].
DI Hunt states that the NSW Police Force is heavily reliant on members of the public making reports and engaging with police officers to provide information about potential offences and risks to persons and property. He states that the readiness of people to contact the NSW Police Force and provide full and frank disclosure of information is key to ensuring a timely and effective response to incidents. DI Hunt states that, in his view, if the NSW Police Force could not give meaningful assurances of confidentiality, because, for example, information supplied confidentially is released under the GIPA Act, many complainants and witnesses would be reluctant to speak with police. He states that any reduction in the numbers complaints made to police, or the willingness of witnesses to cooperate with an investigation, would negatively impact the ability of the NSW Police Force to exercise its investigative and law enforcement functions.
While Mr Langker contends that it is not established that disclosure would result in prejudice to the supply of confidential information to the police, on the basis of the evidence provided, I am satisfied that in performing its functions the police force relies significantly upon information gathered from a number of sources which includes complaints or reports made to police by members of the public. I am also satisfied that if people were aware that the information they supplied could be released to the public, they would be far less likely to provide that information to the police. This in turn would impede the ability of the police to exercise their investigative and law enforcement functions.
As a result, I am satisfied that the disclosure of the redacted information could reasonably be expected to prejudice the supply to the NSW Police Force of confidential information that facilitates the effective exercise of the agency's functions. I am also satisfied that this public interest consideration against disclosure should be given significant weight.

Clause 1(f) - prejudice the effective exercise by an agency of the agency's functions

Unlike clause 1(d), clause 1(f) of the Table does not require that the information in issue was supplied in confidence. There is, however, a requirement that disclosure of the information could reasonably be expected to prejudice the exercise of the agency's functions.
Largely for the reasons set out above, I am satisfied that release of the withheld information could reasonably be expected to prejudice the exercise of the NSW Police Force's investigative and law enforcement functions.

Clause 1 (g) - disclosure of information provided in confidence

Clause 1(g) provides that there is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence. For the reasons outlined above in relation to cl 1(d), I am satisfied that disclosure of the redacted information would result in the disclosure of information provided to an agency in confidence. I am satisfied that in the DPC application, disclosure of information in the withheld emails would reveal confidential information provided to police by Ms Hamblin. Similarly, in relation to the NSW Police application I am satisfied that disclosure of information in the withheld emails would reveal confidential information provided to police by third parties.

Clause 1(h) - prejudice investigation by revealing purpose, conduct or results

In McDonald v Commissioner of Police, NSW Police Force [2019] NSWCATAD 66, the Tribunal stated at [85] that there is "a real public interest in not revealing information about the conduct of internal investigations to the world at large, so that any person can scrutinise the manner in which an investigation is conducted". The Tribunal said at [86]: Clause 1(h) operates to protect the ongoing effectiveness of the methods adopted by the respondent in preventing, detecting, investigating or dealing with crime and complaints against the police. This then ensures that the respondent is able to maintain the integrity of its investigatory methods by protecting the identity of its informants and methods. It was submitted that revealing information about methods of investigation and review conducted by the respondent is reasonably likely to prejudice the effectiveness of the review or investigation, as persons may be better able to avoid scrutiny, or piece together (like a mosaic) what information is held, and the sources of that information.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
I am satisfied that there is a public interest consideration against the disclosure of information withheld on the basis of cl 1(h). In particular, I am satisfied that the release of this information could reasonably be expected to have the effect of prejudicing the conduct, effectiveness or integrity of future investigations, for the reasons set out above with respect to cl 1(d) above and the reasons described by DI Hunt in the previous paragraphs.

Clause 2(b) - prejudice prevention, detection or investigation of a contravention or possible contravention of law, or enforcement of law

It is a public interest consideration against disclosure of information where 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. Under this consideration there is no need for information to have been supplied in confidence.
This consideration operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this consideration is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods. There is no need for an actual contravention of the law since the clause encompasses both actual and possible contraventions. The condition is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law. The information in a document might serve to disclose or confirm police methods or procedures for preventing or detecting possible contraventions of the law: see Desmond v Commissioner of Police (NSW) [2003] NSWADT 231 at [17].
The evidence of DI Hunt set out above with respect to cl 1(d) is relevant to a consideration of this public interest consideration against disclosure.
[NOT FOR PUBLICATION]

Clause 3(a) and (b) - reveal personal information, contravene IPP

These two clauses concern the release of personal information. The definitions of "personal information" in the GIPA Act and in the Privacy and Personal Information Protection Act 1998 (PPIP Act) are similar. Both relevantly provide that personal information means information about an individual whose identity is apparent or can reasonably be ascertained from the information: GIPA Act Sch 4 cl 4; PPIP Act s 4. The GIPA Act provides that to "reveal" information means to "disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)".
There is no doubt, and Mr Langker accepts, that the information sought to be withheld in both applications contains the personal information of individuals other than Mr Langker. Mr Langker submits that the weight to be given to this public interest consideration, however, depends on the nature of the personal information in question and whether the personal information is already public knowledge. I note that information that has been publicly disclosed cannot then be "revealed" by a disclosure under the GIPA Act: Richards v Commissioner, Department of Corrective Services (NSW) [2011] NSWADT 98 at [40]-[41]; Thomson v Commissioner of Police (NSW) [2021] NSWCATAD 53 at [146]-[147].
Section 18 of the PPIP Act regulates the disclosure of personal information, providing that personal information is not to be disclosed unless: 1. the disclosure is directly related to the purpose for which the information was collected, 2. the individual concerned is reasonably likely to have been aware that information of that kind is usually disclosed to that other person, or 3. contains information about other individuals whose identity is apparent or can reasonably be ascertained.
Disclosure under the GIPA Act of the personal information which was supplied to the police for the purpose of investigation and possible prosecution would not be disclosure for any of the permitted purposes in s 18 of the PIPP Act. Mr Langker submits that, as the NSW Police Force is exempt from compliance with the information privacy principles under s 27(1)(h) of the PIPP Act, any breach would be technical at best. I note that the fact that the NSW Police Force may be exempt from the Information Privacy Principles is irrelevant: Flack v Commissioner of Police (NSW) [2011] NSWADT 286 at [44]. In any event, Mr Langker argues that, as with cl 3(a), the weight to be given to this consideration depends on the seriousness of the convention.
I am satisfied that the public interest considerations in cll 3(a) and (b) with respect to personal information are applicable to my consideration of whether the information should be released. The public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. This is particularly the case as the information was supplied confidentially and was supplied for the purposes of an investigation and possible prosecution.

Balancing the public interest

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].
In addition to the general public interest in favour of disclosure contained in s 12(1) of the GIPA Act, there are significant public interest considerations in favour of disclosure of the information sought by Mr Langker. There is no doubt that the fact that the information sought concerns, at least in part, Mr Langker's personal information carries considerable weight, as is the fact that disclosure may assist him to understand the events that led to him being charged with criminal offences which were later dropped.
The public interest consideration in favour of disclosure that disclosure could be expected to promote government accountability, particularly if disclosure may reveal irregularities in the charging of persons with criminal offences carries significant weight. Similarly, if disclosure of the information could be expected to substantiate whether there has been misconduct, or negligent, improper or unlawful conduct, that would be a significant consideration in favour of disclosure. However, I am not satisfied that disclosure of the information would have the effects claimed by Mr Langker.
So far as the information withheld on the basis of cll 1 (d), (f), (h) and (g) and 2(b) is concerned, I am satisfied, particularly in light of the evidence provided by DI Hunt, that, even though some of the information sought is personal to Mr Langker, the public interest considerations against disclosure far outweigh those in favour of disclosure. This is so having regard to the circumstances in which the information was provided to police, community expectations that such information will remain confidential unless disclosure is required by law and the broader impact upon police operations if information of this nature was disclosed.
Mr Langker submits that the weight to be given to the disclosure of the personal information of other persons depends on the nature of that information. While it is true that some information may be more sensitive than other information, what is "personal information" is defined very broadly in cl 4 of Sch 4 to the GIPA Act. In my view, as noted above, the public interest in protecting and controlling the disclosure of the personal information of other people should be given significant weight.
On balance, the public interest considerations against disclosure outweigh those in favour of disclosure, including the personal factors of the application, even though the considerations in favour of disclosure are not insubstantial.
The correct and preferable decision, therefore, other than in relation to the information which it is now conceded can be released to Mr Langker and my conclusions with respect to whether further information may be held in relation to the DPC application, is to affirm the decisions under review.

Orders 1. The decision of the respondent in matter 2023/00157675 is set aside in part. 2. The respondent in matter 2023/00157675 is to provide the applicant with the information identified in paragraph [57] of these reasons redacted to remove the personal information of third parties. 3. The decision of the respondent in matter 2023/00157675 is otherwise affirmed. 4. Matter 2023/00088474 is remitted to the respondent for reconsideration in accordance with the directions set out in paragraph [40] of these reasons. 5. The decision of the respondent in matter 2023/00088474 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

Amendments 18 October 2024 - Counsel amended to include S Yates. 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: 18 October 2024

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Judgment (27 paragraphs)

Cases Cited (22)