The applicant was provided with a document as a result of a previous GIPA Act access application called an audit document of search results which had been generated from the NSW Police Computerised Operation Policing System ("COPS").
The evidence (discussed later) is that the audit report is not a list of searches performed for the applicant's name. Rather it is a list of the times that his name appeared in search results in the search period.
[2]
The Application for Access
Informed by the COPS audit document Mr McDonald then made the present GIPA Act access application on 5 July 2016 for:
"All information/documents etc… created by the following individuals (listed below) as a result of any and all searches they made on the NSWPF COPS System relating to myself as identified in the attached audit report"
The application then went on to list six individuals. Four were serving police officers. Two were no longer working with the NSWPF.
The application also sought access to "all instructions/directions/taskings etc. that they were issued that prompted those persons to make any and all searches as identified on the attached audit report."
There have been three decisions made by the agency. In the first decision (D1) certain documents were released and some were refused. The applicant made an application for review of the refusal decision to NCAT and following a case conference further searches were performed, and a second decision (D2) was made releasing some more documents and refusing access to additional documents. At a further case conference it was agreed that better identification of documents would be provided. As part of this process further documents were located and a third decision (D3) was made.
All three decisions are under challenge.
The Tribunal has been provided with a consolidated schedule of documents the subject of the three decisions setting out their treatment. It is set out in para 104 below. There are 35 documents in the schedule. Documents 5 and 21 were released in full. The applicant has stated that he no longer seeks access to Documents 2, 3, 6-8,13,20-22, 25,and 34 (see applicant's submissions). The other documents have either been refused in full or released in part with redactions.
Mr McDonald in his application sought administrative review of the decision on the grounds that the Commissioner:
1. failed to conduct reasonable searches;
2. failed to properly identify the relevant public interest considerations in favour of disclosure;
3. incorrectly determined that some public interest considerations against disclosure applied to the available information when they were not in fact relevant;
4. failed to properly apply the balancing test to the information that was obtained.
In relation to the remaining documents the agency has determined that there is an overriding public interest against disclosure. It relies on different grounds for different documents. The following are all the table items in s14 of the GIPA Act upon which reliance is placed: 1(d), 1(e), 1(f), 1(h), 2(a), 2(b), and 3(a). The agency also relies on cl.7(b) of Sch.1 GIPA Act in relation to two documents; and on s74 which enables exclusion of documents outside the scope of the access request. The relevant provisions in the table to s14 GIPA Act state as follows:
1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)
…
(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
(e) 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,
(f) prejudice the effective exercise by an agency of the agency's functions,…
(h) 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)
2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
(a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,
(b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,…
3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) reveal an individual's personal information…
Cl.7(b) of Sch.1 GIPA Act states:
7 DOCUMENTS AFFECTING LAW ENFORCEMENT AND PUBLIC SAFETY
It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents.
…
(b) a document created by the State Intelligence Command or the Counter Terrorism and Special Tactics Command of the NSW Police Force, the former Counter Terrorist Co-ordination Command of the NSW Police Force, the former Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence…
The applicant has conceded that this ground prevents disclosure of Documents 2 and 3.
[3]
The Evidence
Mr M Smith, Senior Advisory Officer, of the External Information Access Unit gave evidence on affidavit with annexures. This was an open affidavit.
Detective Chief Inspector S Newton provided a confidential affidavit with annexures. I make confidentiality orders in relation to this affidavit and the documents. I was also provided with an unredacted version of the documents which have been either withheld in full or disclosed in part. I make confidentiality orders in relation to these documents.
The evidence of Mr Smith was that the terms of the access application made the search difficult because of references to "instructions / directions / taskings" but without reference to persons who might have issued these instructions etc. It is worth noting at this point that DCI Newton makes a similar observation that it was not easy to determine which documents were "created" "as a result of" COPS searches in relation to the applicant.
Mr Smith's evidence describes "tracer" emails which were sent to various officers in the NSWPF in a timely manner in response to the first access request. There were also applications to obtain personnel files of persons who are no longer with the NSWPF.
Mr Smith describes further searches of email records, hardcopy files and duty books which took place after the case conference of NCAT including searches on and around the dates of various COPS searches. Some additional documents were uncovered during this process.
Mr Smith describes a further search of the computer system which led to the third decision being made. He stated that he has inspected physical files. He also states that he has not inspected the police commissioner's own files saying that there is no reason to believe that the commissioner has any information.
The evidence from DCI Newton (Professional Standards Manager in the Professional Standards Command (PSC)) referred to by paragraph numbers below is confidential. He is highly familiar with the various electronic systems including the COPS system. COPS was introduced in 1994 and is used to capture, store and analyse operational information and intelligence on an organisation-wide basis.
COPS enables members of the organisation to record and enquire on details of persons, organisations etc which are of interest to the police (para 15).
At para 23 DCI Newton states that once a person has been recorded in COPS all future records should be linked to the initial record.
The COPS system is highly secure and there are significant restrictions on access and penalties against misuse.
Access requires a user name and password which changes regularly, audits are conducted by which persons who have accessed the COPS database are required to specify their reasons. There is also a "reverse audit" to determine who has conducted a search on a particular term.
DCI Newton notes, contrary to assertions by the applicant, that it is not necessary for persons accessing COPS to record their reasons for doing so. They simply need to explain if asked to do so.
DCI Newton also states that each entry in a reverse audit report does not represent an individual search. What it does show is results in relation to an item of information (e.g. a person's name) which is brought up in any search whether for that person or someone else where there is a connected record.
This means that a record of access is created if details of a person or object are included in the search result even if they are not the subject of the search itself, see para 58.
DCI Newton also stated that it was incorrect that a person accessing the COPS system must be issued with an instruction, direction or tasking to perform a COPS search (para 59).
DCI Newton also gave evidence in relation to a number of the grounds relied upon to withhold disclosure of the information.
He said that releasing the information could in his view compromise the supply of confidential information to NSWPF by identifying informers, and that removal of names would be insufficient as that could still enable the applicant to identify the relevant persons. He gave evidence that persons who provide information do so trusting that that information would be kept confidential and that revelation of such information under a GIPA Act application would make them reluctant to assist if they could be identified as a source. He said that the police force relies heavily on information provided by members of the community and that if they were unwilling to do so then the police ability to investigate and prosecute contraventions of the law would be affected.
DCI Newton also gives evidence that disclosure may impede the functions of the police force particularly in relation to investigation of complaints.
DCI Newton goes on to give evidence that investigations in relation to police functions could be adversely impacted if persons become aware of methods used and the range of information available to the police force particularly the Professional Standards Command. This requires confidential communication with frank responses and statements during investigations.
DCI Newton also gives evidence that some of the information consists of correspondence between the PSC and Local Area Commands concerning assistance and intelligence made on a confidential basis. The police force's performance of investigation and risk management requires a free flow of correspondence and it would prejudice performance if the information about methods were to be made public.
DCI Newton concludes by stating that if applicants could obtain the sort of information contained within the documents it would prejudice prevention detection and investigation of potential breaches of the law and enforcement of the law as well as lead to informants being identified and generally the operations of police force and that there is a mechanism available through the complaints system to ensure that there has not been unlawful access to their information in the COPS system.
The respondent filed and served submissions. These are referred to in the later discussion.
The applicant put on no evidence but filed and served submissions. He accepted a number of points in the respondent's submissions. His principal focus in his submissions related to the adequacy of the searches for documents. He submitted that it was reasonable to believe that documents were created for senior officers in the NSWPF (although the access application was limited to six named officers), and that there was no evidence that reasonable searches were undertaken. He also stated that he believed there had been an improper investigation of him, in order to discredit him. He does not state how such discrediting was manifested.
The respondent filed and served submissions in reply, addressing the issues of adequate searches raised by the applicant.
[4]
ADEQUACY OF SEARCHES
Section 41 GIPA Act requires the access application to be sufficiently specific to enable the information applied for to be identified (s41(1)(e)).
Section 53(2) of the GIPA Act requires the agency to undertake reasonable searches, but this must be in relation to the application. It is the terms of the application which sets the scope of the search.
If the applicant submits that there is further information which is not supplied then there is a necessity for the applicant to put forward credible material or argument that there are reasonable grounds for so believing, see Amos v Central Coast Council [2018] NSWCATAD 101 and Cianfrano v Director General Department of Commerce No. 2 [2006] NSWADT 195 at [69]. It is not sufficient to assert non-compliance based on general distrust, see Sheehy v Commissioner of Police [2018] NSWCATAD 73.
Assuming that the applicant has raised some reasonable grounds relating to the adequacy of the search the onus falls on the agency to establish that it does not hold any further information which responds to the access application to be located by reasonable searches as being the correct and preferable decision, see s105 of GIPA Act and para [39] of the Amos decision.
In the present case the clarity of the access application limits the search process. There were three decisions here, but the fact that further documents have been located at each step does not necessarily mean that the searches have not been reasonable, see M J v Department of Education & Communities [2014]NSWCATAD 12 at [28].
In the present case it seems to me that the searches have been reasonable.
The agency has conducted three searches including the electronic files, hard copy files and duty books. The COPS system has been sufficiently explained and so has the audit log system upon which the applicant has placed reliance.
The respondent's evidence contains nothing to suggest that there is more information which can be reasonably located in response to the application. The applicant appears to be indicating a general distrust of the agency but as mentioned earlier this is not enough. The agency has set out at some length the various searches which it has performed including the personnel files of those persons who have since left the police force.
The evidence is detailed and the applicant's submissions seem to be speculative and based on general distrust. I consider that the correct and preferable decision is that the agency has conducted reasonable searches.
[5]
THE RELEVANT PRINCIPLES
The GIPA Act is designed to provide open access to government information unless there is an overriding public interest against disclosure. This open access policy is expressed in a number of places in the GIPA Act including ss 3, 5, 9, and 12. These provisions provide strong public interest grounds in favour of disclosure. Further, examples of factors favouring disclosure are set out in s12(2) GIPA Act and the most relevant in the present case are:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public…
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.…
Against these positive factors are the public interest considerations against disclosure which can only consist of those items (or grounds) set out in the Table in s14 GIPA Act (s14(2)). The positives and negatives must weighed against each other to determine whether the negatives override the positives (s13 GIPA Act).The principles that apply to the determination are set out in s15 GIPA Act. This requires, in the first place a "rather abstract analysis" of the reasonable likelihood of the disclosure having the claimed prejudicial effects on future supply of similar material to the government (Department of Education and Training v Mullett [2002] NSWADTAP 13). This analysis is then applied to the facts of the case at hand as part of the weighing process under s13 GIPA Act, following the principles in s15 (Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19).
Section 14 requires consideration of whether the disclosure could reasonably be expected to have the effects referred to in the various provisions of the Table in s14. It was held in Leech v Sydney Water Corporation [2010] NSW ADT 298 that the test to be applied is an objective one approached from the viewpoint of a reasonable decision maker. Something which could be reasonably expected is something more than a mere possibility or risk, and must be based on real and substantial grounds not purely those which are speculative or hypothetical.
The principles of interpretation to be considered are as follows:
[6]
S14 table item 1 (d): Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions
DCI Newton, gives detailed evidence about the operational prejudice that would flow from release of the information to the applicant particularly in relation to complaints and investigations handled by PSC. It was submitted these are important functions which are closely related to NSWPF's ability to perform its core functions.
DCI Newton states (at pars19 to 20), revelation of the information would disclose intelligence held by NSW Police which is used to assess risks and to exercise NSW Police's core function of preventing criminal activity. At par 24 DCI Newton sets out the warning that is displayed to any individual accessing the COPS system that the information stored therein is confidential and protected under the PPIP Act 1998. Access to COPS is only permitted for legitimate policing activity. Police have a rigorous system to check for unauthorised access, including the audit system and the ability to make complaints under the Police Act, as the applicant did.
At par 28 DCI Newton also gives evidence about how COPS is used internally to manage complaints. As noted above, the applicant was a frequent complainant to NSWPF. It has previously been held that information received by the Police from complainants or witnesses, both internal and external, which could lead to disciplinary proceedings ought to be kept confidential to maintain the flow of information to the Commissioner about the performance of his officers: Head v Commissioner of Police (NSW) [2010] NSWADT 27 and Ritson v Commissioner of Police (NSW) [2010] NSWADT .
In Commissioner of Police (NSW) v Barrett (No 2) [2016] NSWCATAP 86, the Appeal Panel was satisfied that the release of audit reports could reasonably be expected to have the effect of prejudicing the effectiveness of any audit by revealing its results. It was submitted that to accede to the applicant's request in the manner framed would put at risk the security, integrity and confidentiality of the auditing processes and standards of the agency. Similarly, in this case the respondent submits that the release of the information would reveal the results of complaints assessment, risk assessment and criminal investigations processes in a way that would put those processes at risk.
Although the applicant is a former NSW Police officer and therefore can be presumed to have some familiarity with the agency's processes, DCI Newton observes at par 69 that PSC investigations are carried out with a high degree of confidentiality and that other officers and staff within NSW Police do not have access to PSC files and are not aware of all of its methods of investigation.
With respect to clause 1(d) in the table to section 14 of the GIPA, the Tribunal must be satisfied that the information was obtained in confidence, disclosure of the information could reasonably be expected to prejudice the supply of such information to the respondent in the future, and the information facilitates the effective exercise of the respondent's functions (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [52]).
In Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [32] the Appeal Panel held that the enquiry as to whether the information was 'confidential information' "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it."
It is not necessary to show that there is an express obligation or understanding about the information being obtained in confidence as this can be inferred from the circumstances in which the information was obtained (see Bray v North Coast Area Health Service [2009]NSWADT 93). One determines whether or not the information is confidential by referring to what the agency says the conditions were under which it conducts its services in relation to such matters particularly the circumstances at the point of receipt of such information, see Commissioner of Police for NSW and Camilleri [2012]NSW NSWADTAP19. In deciding whether or not information is confidential the informants may have been advised that it would be treated confidentially, or they may have a reasonable expectation of that. See Amos v Western NSW Local Health District [2017]NSWCATAD 359.
What I must also determine is whether disclosure could reasonably be expected to have the prejudicial effect. In considering whether or not there would be a prejudice to the future supply of confidential information one does not ask whether it would reasonably be expected that a particular person considering disclosure may refuse to supply such information but rather whether the agency's general ability to obtain such information in the future would be likely to be prejudiced (Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19).
The agency does need to establish on the evidence what facts may give rise to a prejudice to the future supply of information. In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel found, on the evidence, that it could reasonably be expected that disclosure of information generated as part of the 'Infrastructure Investment Assurance Framework' would prejudice the future supply of information to that Framework.
In Smolenski v Commissioner of Police (NSW) [2015] NSWCATAD 21, the Tribunal found that the disclosure of information obtained from federal agencies in the course of vetting an application for a special constable position could reasonably be expected to prejudice the future supply of this type of information because it facilitated the agency's function of selecting the most suitable candidates for the positions.
In considering whether or not there will be an effect on the exercise of the agency's functions, if the agency relies on reports from staff and the public to help it fulfil its function, those persons may be reluctant to make such reports if they do not have their privacy protected, see Bourke v Roads & Maritime Services [2012] NSWADT 272 (which dealt with reports of maritime hazards). The evidence was that information was provided to the agency on an understanding of confidentiality. Given the nature of the information dealt with by police (behavior which may be criminal or at least anti-social), it is easy to infer that those who provided the information, did so with the expectation that it was confidential information and that it would remain so.
An analysis of whether the disclosure of the information would prejudice the supply of confidential information in the future has been undertaken by the Tribunal on a number of occasions
In Department of Education and Training v Mullett (No 2) [2002] NSWADTAP 29, the Appeal Panel considered an application under the Freedom of Information Act 1989, for access to a report of an investigation prepared by the Audit Directorate of the Department of Education and Training into allegations by the applicant of bias and corruption relating to a panel selection process to appoint a primary school principal. Mr Mullett was the parent representative on the selection panel and voted against the successful candidate.
The Appeal Panel observed at [50] that
Conscientious employees would ordinarily see it as appropriate and proper for them to co-operate with departmental inquiries. If information of the kind in issue were to be released, it is not likely in our view that all employees would withdraw all future cooperation with similar inquiries However, there is a likelihood that some might be more inhibited and guarded in the extent of their communication than may have previously occurred, and some might withdraw co-operation completely out of fear (reasonable or otherwise) of adverse repercussions flowing from publicity. To that extent, a relevant prejudice to the future supply of information would arise"
This reasoning has been considered and adopted by the Tribunal in other cases that have considered clause 1(d), and whether disclosure of confidential information would prejudice the supply of information that facilitates the effective exercise of an agency's functions (e.g. Jones v Department of Education [2017] NSWCATAD 51). It is submitted that this observation is equally applicable to the kind of information that has been supplied to the respondent for the purposes of facilitating the effective exercise of its functions.
[7]
Clause 1(e)- 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
In relation to cl 1(e), , DCI Newton gives evidence that it is critical that members of the PSC, and the Complaints Management Team in particular, are able to have frank deliberations about police officer misconduct and the investigation of such misconduct, and that the disclosure of deliberations and decisions of the investigative arm of the NSW Police Force has the potential to diminish the effectiveness of the PSC.
For the public interest consideration against disclosure in clause 1 (e) to apply, the respondent must establish that the information in issue could reasonably be expected to 'reveal a deliberation' in such a way to 'prejudice a deliberative process' of the respondent. That is, a relevant connection must be established between the deliberation as contained in the withheld information and the Respondent's 'deliberative processes' (Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113).
The meaning of the term 'deliberative process' was considered by the Administrative Appeals Tribunal ("the AAT") in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 (Re Waterford) at [58] to [61], in the context in which it appeared in section 36 of the Freedom of Information Act 1982 (Cth) (FOI Act Cth), as it applied at that time. Although clause 1(e) of the GIPA Act and section 36 of the FOI Act Cth are not the same, they both deal with the disclosure of information concerning the 'deliberative process' of government or an agency, and as such Re Waterford remains instructive.
The Tribunal defined 'deliberative process' as 'involving the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action... it by no means follows, therefore, that every document on a departmental file will fall into this category... documents disclosing a deliberative process must, in our view, be distinguishable from documents dealing with the purely procedural or administrative processes involved in the functions of an agency'.' The Tribunal adopted this analysis in Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113.
In Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [106] the Tribunal accepted the argument that the disclosure of a deliberative process which would result in staff feeling inhibited in providing frank and honest views, or decline to participate in the deliberative process altogether, outweighed the potential benefit from the release of the withheld information.
DCI Newton's evidence clearly established that releasing the sensitive information in question could be reasonably likely to have this effect.
Accordingly, it is the position of the Respondent that disclosure of the information to the Applicant could reasonably be expected to 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 agency pursuant to clause 1(e) and is a relevant public interest consideration against disclosure.
[8]
Clause 1(f) - Prejudice the effective exercise by an agency of that agency's functions
In Jenkinson v Department of Education and Communities [2013] NSWADT 280 the Tribunal accepted that disclosure of information supplied in the course of an investigation into a complaint could reasonably be expected to prejudice the effective exercise by the Department of its functions in respect of the health and wellbeing of staff.
It is submitted that, disclosing material related to investigation of complaints, and information supplied by various informants, and the methods and processes used in these activities by the agency could reasonably be expected to prejudice the effective exercise of the respondent's functions (including the prevention and investigation of crime; the maintenance of the integrity of the NSWPF and the officers and systems which comprise it; and proper handling of complaints against members of the NSWPF) because these matters are of central importance to the effective functioning of the agency.
Accordingly, it is submitted that the disclosure of the information to the Applicant could reasonably be expected to prejudice the effective exercise of the Respondent's function pursuant to clause 1(f) and is a significant public interest consideration against disclosure
[9]
Clause 1(h) - 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)
In relation to cl l(h), the evidence was that disclosure of complaint information generally would have a tendency of revealing the purpose of the investigation that is being conducted and the manner in which it is being conducted; and that it is critical that persons are not given the opportunity to understand covert police methodology. 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 application of this public interest to refuse to disclose information to former officers who were the subject of complaints and internal investigations was recently upheld in Sheehy v Commissioner of Police [2018] NSWCATAD 73].
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.
Accordingly, clause 1(h) is a significant public interest consideration against the disclosure of any information that reveals the purpose, conduct or results of investigations or reviews undertaken by the Respondent
[10]
Clause 2(a) -Reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant
The evidence was that a key aspect of the agency's operations is encouraging and receiving and recording information from the public and officers. The Respondent relies on these people to act as "informants" by reporting information relevant to the functions of the agency as mentioned above.
The information withheld contains the details of informants and of individuals who have made complaints to NSW Police. Clause 2(a) of the Table to s. 14 provides for two alternatives: firstly that disclosure would reveal the identity of an informant (with or without prejudice to the future supply of information to the agency); and secondly that disclosure would prejudice the future supply of information from an informant.
The function of cl. 2(a) of the Table "is to preserve and protect the identity of the informant and the information provided to an agency": (Tziolas v Department of Education and Communities (NSW) [2012] NSWADT 69 at [42]).
The term "informant" is not defined in the GIPA Act, and would seem to differ from someone who has merely provided information to an agency in confidence, as public interest considerations of this kind are considered under ell. 1(d) and 1(g). However, in NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel held that an "informant" is not "restricted to 'police informers' or people who might be seen as themselves involved in the conduct of interest and are ready to 'inform' on their comrades"; rather it is "a person who gives information" (at [47]); see also Bourke v Roads and Maritime Services (NSW) [2012] NSWADT 272 at [40]). The concept is not limited to a person who gives information in the context of the prevention and detection of crimes that engage the attention of Police forces.
It was further submitted that under the GIPA Act, the identity and motive of the applicant can be relevant to considerations of the public interest for and against disclosure: s 55. The 'mosaic effect' was discussed in Saleam v Police Service (NSW) [2002] NSWADT 40, where the former ADT found the cl 4(l)(b) exemption of the former FOI Act NSW to apply to parts of the personal dossier that the Special Branch of the Police Service held in relation to the applicant. The finding that the cl 4(l)(b) exemption applied was based on the Tribunal's view that the applicant was using the "mosaic effect" identified in Department of Health v Jephcott (1985) 8 FCR 85; 62 ALR 421; [1985] FCA 370 in order to identify and confirm his suspicion as to the true identity of police informants. The mosaic effect describes the situation where the applicant or persons on the applicant's behalf undertake a systematic approach to the making of numerous FOI/GIPA applications with the ultimate aim of putting the pieces together and discovering significantly more than she or he is otherwise entitled to. In Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [64]-[65] the Tribunal applied this reasoning to the potential ability of the applicant to piece together the identity of the informants from different information.
The respondent submitted that it should also be borne in mind that, as the subject of a number of complaints, the applicant is likely to be able to ascertain who provided the information, even if names are redacted. In addition, information that identifies a complainant under Part 8A of the Police Act is protected from disclosure due to the combined effect of s169A of the Police Act 1990 and Sch. 1, cl. 1 of the GIPA Act, which designates s169A as an overriding secrecy law.
It is submitted that the release of withheld the information would (where relevant) be likely to reveal or tend to reveal the identity of the informants who provided the information.
If the identity of the people who give information to the police became publicly known, it is the opinion of DCI Newton (and can readily be inferred in any case) that they will be far less likely to supply the Respondent with information in the future. If the identity of those people is revealed, the Respondent will be significantly prejudiced in its ability to receive information of this kind from informants in the future.
Accordingly, the public interest consideration under clause 2(a) is of particular significance, and the Respondent submits that substantial weight should be given to this consideration.
[11]
Clause 2(b) -Prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law
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 consideration 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 procedures must themselves have some element of secrecy to them: XZ v Commissioner of Police (NSW) [2009] NSWADTAP 2 at [21].
DCI Newton gave evidence that disclosure of the information would reveal sensitive information as to the tools and techniques used by Police in conducting investigations. At par 78, DCI Newton states that the performance of NSW Police's investigative functions depends on the free flow of information between various parts of the Force.
The disclosure of information will also reveal the details of investigations into suspected offending and the assessment of the risk of an individual causing harm to others (i.e. future potential offending): (see pars 73 and74).
The public interest consideration under clause 2(b) of the table to section 14 of the GIPA should also, it was submitted, be given great weight by the Tribunal. The meaning of the word "prejudice" is to "cause detriment or disadvantage", or to "impede or derogate from" (Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]).
Senior Member Montgomery noted in UC v Commissioner of Police, NSW Police Force [2005] NSWADT 272 at [32], in relation to the similar exemption in cl 14(1)(e) of Schedule 1 to the former Freedom of Information Act 1989 (NSW), that 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 exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods" .
The evidence is that information has been withheld by the agency here to preserve the integrity of intelligence-gathering as a method of preventing contraventions or possible contraventions of the law. This would present a reasonably foreseeable (as opposed to irrational, ridiculous or absurd) risk to the operational methods of the NSWPF. Public disclosure of this kind of information may assist people to avoid detection by subverting any future police investigations.
[12]
Clause 3(a) -Reveal an individual's personal information
"Personal information" is defined in Schedule 4 clause 4(1) of to the GIPA Act to mean "information or an opinion (including information or an opinion forming part of a database whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion " (emphasis added)
The Information Commissioner has published Guidelines 4 - Personal Information as a public interest consideration under the GIPA Act (Guidelines), which are relevant when determining whether there is an overriding public interest against disclosure (ss 14(3),15 and 17 GIPA Act) The Guidelines set out what is meant by 'personal information' in the GIPA Act, and at clause 17 states
Whether the identity of a person can "reasonably be ascertained" will depend on the type of information and the context in which it is being used. It is not necessary that the identity of the person be widely known, it will be sufficient to satisfy the definition of personal information if the information is communicated to someone who is able to identify the person.
The kind of information withheld under clause 3(a) includes parts of statements containing personal information, a person's name, employment information and personal opinions. This kind of information meets the definition of personal information found under clause 4 of Schedule 4 to the GIPA Act because it is information or an opinion about an individual whose identity is apparent or can be reasonably ascertained from the information, and when held by an agency such as the respondent, is generally only disclosed to the person to which the information directly relates. In some instances, even though the individual is not named or the name is deleted, the remaining information could enable an individual to be identified through the mosaic effect mentioned above.
[13]
Consideration
Bearing the above interpretational principles in mind, the first question the Tribunal asks itself in relation to each item is 'could the disclosure of information reasonably be expected to have one or more of the relevant effects?' If not then the particular item does not apply. If it does apply, then the Tribunal determines the weight it carries and conducts the balancing exercise against the weight of factors in favour of disclosure (Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19).I now proceed to examine each of the documents against the claim for refusal of access grounds. The respondent has prepared schedule of documents which are reproduced below and to which it is convenient to refer. Only those documents which remain in contention have their details retained.
Consolidated index of documents to decisions dated 21 August 2017 (Dl), 12 February 2018 (D2) and 9 April 2018 (D3)
DocNo. Page no. Original decision ref. Document description Date Agency's GIPAA Decision
1 Dl, p. 1-2 Duty Book - Inspector Lister 17 July 2014 Released in part: s. 14 Table cl. 1(d); (h); Table cl. 2(b); s. 74 (outside scope)
3 Dl, p. 3
4 Dl, pp. 4-5
6 Dl, pp. 6-14 Duty Book - Inspector McCallum Various March 2014 Released in part: s. 14 Table cl. 1(d); (h); Table cl. 2(b); s. 74 (outside scope)
15 Dl, p. 15
16 D2, 1, p. 1
17 D2, 2, p. 2
18 D2, 3, p. 3
19 D2, 4, pp. 4-5 Email correspondence to/from L McCusker, R Gaynor 8 May 2014 Refused in full: s. 14 Table cl. 1(f); (h)
21 D2, 5, p. 6 Email correspondence from L McCusker to R Gaynor and another 14 May 2014 Refused in full: s. 14 Table cl. 1(f); (h)
22 D2, 6, p. 7 Email correspondence to/from L McCusker 14 May 2014 Refused in full: s. 14 Table cl. 1(f); (h)
23 D2, 7, p. 8 Email correspondence between two officers - responsive to L McCusker and R Gaynor 14 May 2014 Refused in full: s. 14 Table cl. 1(f); (h)
25 D2, 8, pp. 10-20
36 D2, 9, pp. 21-26 Email correspondence to/from G Lister 18 November 2014 Refused in full: s. 14 Table cl. 1(d); (f); (h); Table cl. 2(a)
42 D2, 10, p. 27 Draft report prepared by Investigation Unit 18 November 2014 Refused in full: s. 14 Table cl. 1(f); (h)
45 D2, 11, p. 30 Email correspondence to/from G Lister 18 November 2014 Refused in full: s. 14 Table cl. 1(f); (h)
46 D2, 12, pp. 31-32 Email correspondence to/from G Lister 18 November 2014 Refused in full: s. 14 Table cl. 1(f); (h)
48 D2, 13, pp. 33-34 Email correspondence to/from G Lister 18 November 2014 Refused in full: s. 14 Table cl. 1(f); (h)
50 D2, 14, p. 35 Email correspondence to G Lister 18 November 2014 Refused in full: s. 14 Table cl. 1(f); (h)
52 D2, 15, pp. 36-84
100 D2, 16, pp. 85-90
106 D2, 17, p. 91
107 D2, 18, p. 92 Email correspondence from M McCallum 31 March 2014 Refused in full: s. 14 Table cl. 1(f); (h)
108 D2, 19, pp. 93-97 Email correspondence from M McCallum 7 March 2014 Refused in part: s. 14 Table cl. 1(f); (h)
113 D2, 20, pp. 98-99
115 D2, 21, p. 100 Email correspondence from M McCallum 31 March 2014 Refused in full: s. 14 Table cl. i(f); (h)
116 D3, p. 1 Investigation Terms of Reference - R Gaynor 17 April 2014 Refused in full: s. 14 Table cl. 1(e); (f); (h)
117 D3, pp. 2-3 PSC Investigations Unit Memo (R Gaynor) 2 April 2014 Refused in full: s. 14 Table cl. 1(e); (f); (h)
119 D3, pp. 4-7 Task Lists - COPS Audit (R Gaynor) April 2014 Refused in full: s. 14 Table cl. 1(e); (f); (h)
123 D3, pp. 8-10 Investigators File Note - COPS Audit (R Gaynor) 13, 21 May 2014 Refused in full: s. 14 Table cl. 1(e); (f); (h)
126 D3, p. 11 Summary of audit findings, prepared by R Gaynor 13 May 2014 Refused in full: s. 14 Table cl. 1(e); (f); (h)
127 D3, pp. 12-13 Investigators File Note - COPS Audit (R Gaynor) 7, 13 May 2014 Refused in full: s. 14 Table cl. 1(e); (f); (h)
129 D3, p. 14 Investigators File Note - COPS Audit (R Gaynor) 15 April 2014 Refused in full: s. 14 Table cl. 1(e); (f); (h)
130 D3, p. 15
131 D3, pp. 16-23 Summary of COPS Audit Events, prepared by L McCusker (undated) Released in part: s. 14 Table cl. 1(d); (e); (f); (h); Table cl. 2(a); Table cl. 3(a)
[14]
I have examined the documents still in contention. I have reminded myself of the respondent's evidence. I have considered the public interest factors for and against release of each of the documents in contention. I have borne in mind the general presumption which favours disclosure and accorded it considerable weight. I have considered the grounds for refusal to disclose using the principles set out above; asked myself whether it is reasonable to expect that the claimed effects may occur; then assigned weight to those grounds which I consider have been made out (other than s74 GIPA Act for matters considered outside the ambit of the access request. I have checked the s74 claim to determine if it is justified). I have then balanced the factors for and against disclosure to determine whether the negative factors outweigh the positive. My analysis and decisions on the documents follow the respondent's document numbers above.
[15]
Documents 1 and 4
The s74 claim is justified. On the evidence, it does not appear to me to be reasonable to expect that disclosure of the parts which have been redacted to have the prejudicial effect set out in s14 table item 1(d) or item 2(b). However, it is reasonable to expect that disclosure of the redacted parts (which have been 'surgically' identified) could prejudice the conduct and effectiveness of an investigation or review conducted by the agency by revealing its purpose, conduct (or methods) or results, within the meaning of s14 table item 1(h). It is DCI Newton's evidence that the effectiveness of the NSWPF could be impacted by disclosure. I regard this factor as having strong weight which is enough weight to override the factors in favour.
[16]
Document 9
There is information in this document to which table items 1(f) (prejudice to the effective exercise of the agency's functions) and 1(h) are made out and the factors against disclosure outweigh those in favour. However there is a small amount of material which does not meet the test. I consider it more appropriate to remit the document to the agency for reconsideration and suitable redaction which may include personal information concerning persons not named in the access application.
[17]
Documents 10-12
The information in these documents relates to the preparation of Document 13 which is no longer in contention. Much of the information would fall within s14 table items 1(f) and (h), and carry strong weight sufficient to override the factors in favour of disclosure. There is a small amount of material which in my view does not meet the test. I consider it more appropriate to remit the document to the agency for reconsideration and suitable redaction which may include personal information concerning persons not named in the access application.
[18]
Documents 14-19
These documents all bear the same date and contain information which in my view would be wholly covered by s14 table items 1(f) and 1(h) and those considerations are of strong weight. I note document 15 has three pages 27-29. The document also contain references to confidential information the future supply of which could be prejudiced, thus affecting the agency's functions. These factors are also relevant to item 2(a) as the information could identify an informant which could tend to prejudice future supply of information from informants, who generally expect their identities and the information to be kept confidential. I attribute considerable weight to these factors in addition to those mentioned first. All the factors against disclosure heavily outweigh those in favour. It does not seem useful to order a remittal and redaction process as nothing of substance would remain.
[19]
Documents 23 & 24
Much of the information in Document 23 would fall within s14 table items 1(f) and (h), and carry strong weight sufficient to override the factors in favour of disclosure. There is a small amount of material which in my view does not meet the test. I consider it more appropriate to remit the document to the agency for reconsideration and suitable redaction which may include personal information concerning persons not named in the access application.
The parts of Document 24 which have been redacted satisfy the requirements of s14 table items 1(f) and 1(h). On the evidence I regard them as carrying considerable weight sufficient to make the public interest against disclosure outweigh that in favour.
[20]
Documents 26 - 33
All of this group of documents are withheld in reliance on s14 table items 1(f) and 1(h). Documents 27-33 place further reliance on s14 table item 1(e). In my view these grounds are clearly made out. The same considerations as previously mentioned apply to the first two grounds. The material in Documents 27-33 reflect deliberations, consultations, research, advice and certain recommendations and in my view disclosure would be reasonably likely to cause the prejudice referred to in the s14 table items. These considerations carry very strong weight in my weighing of the public interests for and against disclosure. As a result I consider that the factors against disclosure solidly override those in favour.
[21]
Document 35
The agency relies on a number of s14 table items as set out in the schedule above to support the redaction of parts of this document. I do not consider that s14 table item 1(e) claim has been sustained as I do not consider the information to fall within the scope of that item. However, the redacted parts contain personal, identifying information from individual informants. Disclosure of that information would reveal details of a personal nature which would identify individuals (which would not be cured by simple redaction), which would be likely to lead to prejudice to the future supply of information to the agency which (on the evidence and as a matter of common knowledge) relies on the provision of confidential information to effectively function. Each of the other grounds relied on by the agency are made out.
These are very strong factors against disclosure, which in my view outweigh the factors in favour.
[22]
ORDERS
1. Documents 9-12 and 23 in the schedule of documents at paragraph 104 are remitted to the respondent agency for reconsideration and redaction.
2. The respondent agency's decisions in relation to the other documents in the schedule are affirmed.
3. Pursuant to s 64 CAT Act it is ordered that:
4. (a) the publication of confidential evidence given to the Tribunal, and of matters contained in confidential documents received in evidence by the Tribunal; and
5. (b) the disclosure to the applicant in the proceedings of confidential evidence given to the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal be prohibited.
[23]
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: 18 April 2019
Parties
Applicant/Plaintiff:
McDonald
Respondent/Defendant:
Commissioner of Police, NSW Police
Legislation Cited (5)
(NSW), Civil and Administrative Tribunal Act 2013(NSW)
(NSW), Government Information (Public Access) Act 2009(NSW)
or NSW v Searle [2018] NSWCATAP 93
Tziolas v Department of Education and Communities (NSW) [2012] NSWADT 69
XZ v Commissioner of Police (NSW) [2009] NSWADTAP 2
Texts Cited: 'Guidelines 4 - Personal Information as a public interest consideration under the GIPA Act', The Information Commissioner
Category: Principal judgment
Parties: Mr R McDonald - Applicant,
Commissioner of Police, NSW Police - Respondent
Representation: Solicitors:
Applicant self-represented
Crown Solicitor's Office - Respondent
File Number(s): 2017/00312276
Publication restriction: Pursuant to s 64 CAT Act it is ordered that: (a) the publication of confidential evidence given to the Tribunal, and of matters contained in confidential documents received in evidence by the Tribunal; and (b) the disclosure to the applicant in the proceedings of confidential evidence given to the Tribunal, and of the contents of a confidential document received in evidence by the Tribunal be prohibited.
Jurisdiction
The Tribunal obtains its jurisdiction to review the agency's decision under s 100 GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act)); ss 9 and 63 of the ADR Act; read together with s 30 of the Civil & Administrative Tribunal Act 2013 (CAT Act). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law (s 63(1) ADR Act). The Tribunal makes its own decision in place of the respondent without any presumption that the agency's decision is correct.
The role of the Tribunal is to review the merits of the refusal decision of the agency on the access request, taking account of the scope of information that falls within the access application and has been considered for access, the information which has been provided to the applicant, and any further relevant material. It is not a review of the decision of the agency on any internal review of the original access decision requested by the applicant.
The process for deciding whether to grant access to information is to identify the applicable factors in favour of granting access; then to identify the applicable public interest factors against such disclosure (which can only be from those items set out in the Table in s 14 of the GIPA Act). Then it is necessary to allocate weight to each of the positive and negative factors. This is followed by a process of weighing in the balance the positive and negative elements to reach a decision as to whether access should be granted or not (where the negatives override the positives) (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286).
In summary the GIPA Act relevantly provides that there is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure (s 5 GIPA Act). Relevantly in this case some of the documents contain "open access information" that an agency must mandatorily and proactively release unless there is an overriding public interest against disclosure (s 6 GIPA Act). A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure (s 9 GIPA Act). The public interest considerations in favour of disclosure are set out in s 12 GIPA Act.
There is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure which on balance outweigh the public interest considerations in favour of disclosure (s 13 GIPA Act). The public interest considerations against disclosure are set out exhaustively in s 14 in a Table. Section 15 of the GIPA Act provides for certain principles that apply to the determination of whether there is an overriding public interest against disclosure.
There are obligations on the agency to conduct reasonable searches to consider the information (s 53 GIPA Act); and it may consult with the access applicant to determine the precise scope of the access request. The agency must consult with persons who may have relevant concerns about the release of information (s 54 GIPA Act). An person consulted can object to disclosure of all or part of information and if aggrieved can have the agency decision reviewed (s 56 GIPA Act). Agency decisions should be made in conformity with s 58 GIPA Act, and notice of a refusal decision and reasons are to be given under s 61. The agency can either delete or withhold information on the basis that deleted information is either not relevant or because the agency has decided to refuse access to it (s 74 GIPA Act). Finally it is noted that the agency has the burden of establishing to the Tribunal that the decision to withhold is justified (see s 105 GIPA Act).