McLachlan v Commissioner of Police, NSW Police Force

Sergeant Ponte

1. Sergeant Ponte is responsible for ensuring that the Respondent's legislative, policy and administrative obligations relating to complaint management are met for misconduct matters about members of the NSW Police Force that are managed by the PSC. He has held that role since November 2014.
2. Sergeant Ponte stated that he is aware of the misconduct matters that are the subject of the Applicant's access application but he had no involvement in the Applicants' GIPA requests nor was he involved in the Respondent's response to the application.
3. He conceded that the Guidelines are a public document and therefore known to police officers. However, he stated that the guidelines are the framework by which the complaint handling tends to operate; the deliberations and the effectiveness of those deliberations are the unique aspects of handling a particular misconduct matter.
4. He described several stages to the deliberative process: 1. Firstly, the misconduct information is obtained. That material is receipted on the complaint information system. 2. Triage is one of the first steps within the complaint management process. An assessment is made of how to deal with a particular misconduct matter. There are instances in which it is neither advisable nor necessary to contact a complainant at the triage stage. 3. This is followed by a pre-investigative process where there are deliberations and there is an assessment of the holdings, and then material that is readily available for the complaint handler to determine the best way to deal with complaint. 4. If a recommendation is made and accepted that a complaint is to be the subject of further inquiries or examination, then an investigation takes place. An investigator or investigation team is assigned to deal with the misconduct matter. An investigation can take many forms. For example, sometimes it can be informal and sometimes you have a very formal criminal investigation. An investigator is not necessarily a delegate of the commissioner. The deliberative process change from complaint to complaint and the process for any particular complaint is not known to people outside of that investigation team. 5. The commissioner or the commissioner's delegate can stop a misconduct matter at any particular point in time if satisfied that there is no need for it to continue. 6. If an investigation is conducted then a final report is prepared. That goes through a quality review process. The investigator provides recommendations to a delegate. After the quality review process, the delegate decides how they're going to deal with the disciplinary aspect of a particular misconduct matter. The final decision is made by the person who has the delegated authority by the Commissioner of Police to exercise that function.
5. In his affidavits he gave further evidence of the Respondent's approach to dealing with misconduct matters. The Commissioner has delegated most of his functions regarding these issues and the assessment, investigation (if required) and most resulting disciplinary action will generally be the responsibility of the Commander under whose Command or Unit the subject officer is employed. There are exceptions which address issues such as conflicts of interest, complexity, availability of investigative resources and the rank of subject officers which warrant referral to another Unit.
6. Sergeant Ponte set out his views in regard to why he believes that there is a strong public interest against revealing the type of information that has been withheld in this matter.
7. In his view it is essential that members of PSC, and the Complaints Management Team, are able to conduct open deliberations in relation to police officer misconduct and any investigation of such misconduct. If deliberations and decisions of the PSC, being the investigative arm of the NSW Police Force, were disclosed, the ability of the PSC to engage in frank and honest deliberations would be hindered. To inhibit candid discussion and opinions during deliberations would potentially compromise any findings or conclusions resulting from the investigation. Accordingly, the PSC's ability to effectively exercise its investigative function would likely be diminished, which in turn would have a detrimental effect upon how police misconduct is addressed.
8. Sergeant Ponte also believes that the disclosure of the PSC's deliberative processes could also prejudice such processes in the future, in that if police officers are aware of how the deliberative process is conducted, they may be able to circumvent or obtain an unfair advantage to the detriment of the integrity of the deliberative process. It is therefore vital that police officers are not aware of the internal workings of an investigation into police misconduct.
9. He also believes that, in general, it is essential to withhold information and evidence obtained in connection with a complaint from disclosure. This is because disclosure has the potential to prejudice the supply of misconduct information and evidence in support of investigations in the future. He says that the Respondent must be able to provide persons making complaints and providing information in connection with police misconduct assurances relating to the protection of their identity and confidentiality of their information. If it could not make such assurances then the supply of crucial information to the PSC would be undermined. Members of the public and the Respondent's employees who submit complaints or provide information to the PSC would be deterred from making such complaints or disclosing such information. As a result, this would likely lead to a decrease in complaints of police officer misconduct and a decrease in the capacity of the Respondent to capture information about misconduct matters.
10. The ability of the PSC to investigate misconduct with the benefit of a degree of secrecy over the manner in which investigations are conducted is vital to thoroughly and effectively addressing police officer misconduct. The disclosure of information that reveals the manner in which internal investigations are conducted, and how evidence is sourced and collected, would have the real and probable effect of prejudicing the effective exercise of the Respondent's disciplinary functions. It would allow police officers to understand the PSC's investigative practices and procedures, and effectively deploy counter-measures to navigate their way around detection. The ability of police officers to evade detection completely undermines the statutory function conferred on PSC.
11. The disclosure of complaint information generally would reveal the manner in which an investigation is conducted. Where there are allegations of police misconduct, the PSC must be able to deploy whatever means and investigative techniques that the PSC deems appropriate to thoroughly and properly investigate the allegation.
12. For similar reasons he thinks that it is vital for the maintenance of the integrity of the PSC investigative function that detailed complaint file information not be disclosed to the public where that disclosure may reveal how the Respondent prevents, detects or investigates contravention of the law.
13. Sergeant Ponte also noted that some of the withheld information contains personal information of individuals who have a valid expectation that their personal information will not be divulged to the public. He said that the effectiveness of the police internal disciplinary system relies on the principle that people should be confident that their personal information held by the NSW Police Force will be kept confidential.
14. In regard to the Applicant's contention that he is only seeking the withheld information to ensure that his complaints were handled correctly, Sergeant Ponte noted that release of this information is a public release, and not merely release to the Applicant. Once confidential information is released, the Respondent would have no control over any further use or dissemination of that information. In his view, the Respondent cannot take comfort in the Applicant's reliance on his employment as a police officer to ensure the material will not be further disseminated and he should not be treated any differently from any other applicant who sought to access the same confidential material.
15. In relation to the Applicant's contention that the Guidelines require that a complainant be contacted Sergeant Ponte stated that in his view speaking to the complainant or victim is not mandatory. He said that there are occasions where it is not necessary or appropriate to speak further to the complainant until the conclusion of the assessment process. He said that in determining not to investigate the complaint or take any further action, the delegate exercised a function available under Division 4 of Part 8A of the Police Act 1900.
16. The Respondent identified a significant amount of information in response to the Applicant's access application. A schedule prepared by the Respondent identified 302 pages of information that was found to have been within the scope and indicated which pages from identified material has been released to the Applicant.
17. In his confidential affidavit Sergeant Ponte gave evidence in relation to the withheld information. I have been given an unredacted copy of the withheld information and I have been able to compare Sergeant Ponte's evidence with the documents. I am satisfied that he has correctly identified the nature of the information that has been withheld.
18. [Not For Publication]
19. [Not For Publication]

Inspector Wayne McLachlan

1. The Applicant is an Inspector of Police. He has been a police officer for over 24 years.
2. In regard to the triage the Applicant provided a copy of the Guidelines which states: 'The following steps should be followed with reference to the Triage Form - Mandatory -P1001. 1. Identify the issues raised in the complaint document. 2. Determine if the complaint document requires notification to external agencies or other NSWPF Units. 3. Identify the subject officers and examine complaint history. 4. Speak to the complainant / victim if required. 5. Examine existing holdings and consider information that is readily available. 6 Determine the need for interim risk management action. 7. Make a triage recommendation; Evidence Based Investigation, Resolution, Decline.'
3. He stated that in his complaint documents he provided information that presented an opportunity to garnish further evidence that was omitted. The complaints were declined and not investigated despite the fact there was ample opportunity for the matters to be investigated.
4. He contends that the triage officer should have spoken to him as the complainant. He believes this was required in accordance with his understanding of the Respondent's practice. He could have explained to the triage officer what evidence the witnesses were prepared to provide.
5. He also contends that speaking with witnesses is part of the complaints handling process even though it is not actually written within the Guidelines. Where witness details were provided it would be appropriate for the matter to be referred for investigation so those witnesses could be contacted. While the witnesses were not named, he stated that the triage officer would have been aware that there were witnesses and therefore the matter should have then been referred for investigation to obtain the names of those witnesses by the investigator and then obtain statements from those witnesses. The witnesses were prepared to provide information to the investigator.
6. He agreed that he had been not prepared to provide the identities of the witnesses at the initial sate of the consideration. However, he stated that it is not necessary for the triage officer to pursue those witnesses. He believes that it is the responsibility of the triage officer to determine whether the matter should be investigated. It is then a matter for the investigator to pursue those witnesses.
7. He also disputed Sergeant Ponte's evidence in that he said that the triage officer is normally allocated within a command. The Professional Standards Duty Officer would normally triage the document and then allocate it to the commander to either agree or disagree with the triage process. He did not agree with Sergeant Ponte's evidence that it would be dealt with by a commanding officer.
8. He also disputed Sergeant Ponte's evidence that the triage could take a number of different forms, including investigation and deliberation. He stated that in his experience the triage form is utilised by all Complaint Management Teams. It's normally a process that's undertaken by an individual officer who triages a matter and looks at the available holdings, makes a recommendation to the commander, who then signs off on it and if need be refers it to a Complaint Management Team for further discussion. There is no deliberation at the triage stage.
9. He stated that it is not the triage officer's responsibility to speak to the witnesses. It's the triage officer's responsibility to determine whether the matter is investigated or not investigated.
10. In regard to Sergeant Ponte's evidence that complainants or victims might not be contacted in relation to complaints that were made, he stated that as a professional standards duty officer he has always contacted the complainant or informant in order to let them know that the compliant had been received, to explain the process to them and to ask them if there was any further information that had become available to them or of which they had become aware after lodging the complaint.

The Respondent's submissions

1. Mr Seck provided written submissions and also made further oral submissions. These submissions are supported by the evidence given by Sergeant Ponte.
2. Mr Seck conceded that the Guidelines are well-known but he noted that the public interest considerations against disclosure relate to deliberation and consultation and are not directed to the existence of procedures. The considerations are directed to the content of those deliberations or consultations and the fact that they occur in a forum where open and honest views are expressed. He submits that disclosure to the public could undermine or inhibit the preparedness of some persons to present such views and opinions. This is a matter which goes directly to the quality and conduct of those deliberations and their specific content and ensuring they are undertaken in a manner which is not inhibited.
3. Mr Seck noted that alternatives methods are available to the Applicant to ensure compliance with the Guidelines and the statutory framework. One mechanism which is available is to make a complaint under Part 8A of the Police Act.
4. Mr Seck noted that as Sergeant Ponte is a member of the PSC, he is in a position to speak on the issue of the PSC's procedures. As noted, Sergeant Ponte said that it is not always the case that compliance with the Guidelines requires contact with a complainant or victim. He says that such contact is only necessary to clarify an issue. That is, it is only necessary if something is not clear in the complaint. In situations where details are provided in a complaint document, it may not be necessary to actually contact the complainant or victim to find out whether or not further information is required.
5. In regard to the Applicant's motivation for seeking the withheld information Mr Seck submitted that the motive of ensuring compliance is insufficient. There has to be some further basis, based on probative material, upon which the Applicant can assert that there is real possibility that there hasn't been inherent to the Guidelines. The Tribunal can weigh up any material that supports the public interest consideration which the Applicant has put forward, however he submits that it is mere speculation. Mr Seck submitted that there is an absence of evidence to support even a possibility of non-compliance with the procedures. In contrast, he submits that there is more than a sufficient basis for the Tribunal to conclude that there are public interests considerations against disclosure and that they should be given significant weight.
6. He further submitted that it will be obvious from a consideration of the withheld material that there have been proper consideration and deliberative processes involved. However, whether or not there has been compliance is not the test to be applied. The question is whether or not, given those competing public interests, the public interest considerations against disclosure outweigh those in favour of release.

The Applicant's submissions

1. Mr Kennedy provided written submissions and also made further oral submissions. These submissions are supported by the evidence given by the Applicant.
2. Mr Kennedy submitted that the deliberation process is not subject to secrecy and that the Applicant would be aware of the process through his experience with complaint handling. He further submitted that there is a public interest in police officers being aware of how complaints are managed. He noted that the object of the GIPA Act is to encourage proactive public release and to ensure open, accountable and effective government.
3. He further submitted that there were some irregularities in regard to the way in which the complaints were progressed. He contends that there has been only limited adherence to the Guidelines and that access to the withheld information might explain the basis for that failure. The Applicant's motivation is solely in ensuring the integrity of the process itself and ensuring that it is followed.
4. He submits that the interest in disclosing the information is significantly greater than not disclosing it. He further submits that there is no particular law enforcement effect that might be prejudiced by its disclosure. He contends that withholding the information is merely a convenient outcome for the Respondent and is not in keeping with the general nature of the GIPA Act. Rather, the disclosure of the information is in the public interest.

Discussion

1. I agree with the Applicant's submissions in regard to the public interest considerations in favour of release. These are to be given reasonable weight. However I also agree with the Respondent that in the circumstances the Applicants' motive of ensuring compliance is insufficient to support a finding of non-compliance with the procedures.
2. I accept the evidence given by Sergeant Ponte and I agree with the reasons that he has given as considerations against the release of the withheld information. In my view, those considerations should be given significant weight.
3. I note the differing opinions of the Applicant and Sergeant Ponte in regard to what is required in order to comply with the Guidelines. In the circumstances I do not need to determine which construction is correct. As I have noted above, I have had the benefit of viewing the withheld information. In doing so I have been able to satisfy myself in regard to the approach that was taken.
4. It is apparent from the face of the information that the Respondent undertook detailed consideration and deliberative processes. I agree with the Respondent's argument that the Applicant's assertions are mere speculation. I did not see any material that would support the Applicants' concerns.
5. I have been referred to the decision of Principal Member Titterton in Sheehy and the discussion of similar public interest considerations against disclosure in that case. The Applicant has submitted that Sheehy can be distinguished on its facts. In contrast to the situation in Sheehy the Applicant in this matter is not the subject of any complaints but is the complainant. However, I do not agree that the principles identified in Sheehy are not relevant in this matter.
6. I accept the Respondent's argument that both matters relate to the Respondent's decision to refuse access to internal complaint investigation information in response to an access application made under the GIPA Act.
7. In Sheehy the Tribunal noted at paragraphs [63] - [67]: 63 I find that the respondent has provided unchallenged evidence in support of the public interest factors against disclosure of the withheld information. These factors are compelling and significant, for all the reasons explained by Chief Inspector Newton. I accept the respondent's submission that the public interest grounds in favour of disclosure contended for by the applicants are speculative. That is to say, I do not accept that, as submitted by the applicants, the evidence tends to establish that the respondent's functions and investigation methodologies were infected by systemic failure and/or serious misconduct. ... 64 I do accept the applicants' broad submissions that the public interest is better served by transparency and public scrutiny of the respondent, and that the community is entitled to know that police officers, and especially senior police officers, can be trusted not to abuse the trust reposed in them. 65 However, I find that the disclosure of these internal investigation files would prejudice the future supply of complaint information to the NSW Police Force, and prejudice the effectiveness of internal investigations into police officers in the future. I further accept the respondent's submission that workplace investigations, both in the public and private sphere, are conducted confidentially to protect complainants from reprisal and to encourage witnesses to supply information relevant to the complaint. I find that these factors are significant and warrant protection in workplace situations, but particularly in regards to the NSW Police Force, where it is desirable that complainants and witnesses can come forward with confidence that their personal details will not be disclosed, potentially exposing them to reprisal action. 66 I accept the respondent's submission that revealing to the applicants how an internal disciplinary matter is investigated is undesirable. In my view, the possible prejudice to the respondent in the exercise of its functions and conduct of its internal investigations outweighs any public interest in favour of disclosure. I accept that it is essential to the maintenance of the integrity of the NSW Police Force, and for the overall benefit of the public, that police officers do not know the internal workings of such investigations. 67 ... In my view the statutory presumption in favour of disclosure is displaced by the public interest factors against disclosure.
8. In the circumstances of this matter I have formed the same view. I adopt the reasoning of Principal Member Titterton in Sheehy in regard to the withheld information in this matter.
9. In addition, I note the Respondent's evidence that some of the withheld information is the personal information of individuals other than the Applicant. I am satisfied that the disclosure of that information would reveal an individual's personal information. I am not satisfied that the public interests in favour of release of the information would outweigh that public interest factor against disclosure.
10. I also note that the Applicant's access application sought information relating to an anonymous complaint. There is no evidence to suggest that the Applicant made that complaint. In the circumstances I am satisfied that the disclosure of that information would reveal an individual's personal information. I am not satisfied that the public interests in favour of release of the information would outweigh that public interest factor against disclosure.
11. For completeness I note there is no reason to dispute the Applicant's contention that as a highly experienced police officer he can be relied upon to maintain the strictest of confidence in all matters consistent with his oath of office and his obligations. Nevertheless, I agree with the Respondent's submission that release of information pursuant to a GIPA access application is a public release, and not merely release to the Applicant. Once confidential information is released, the Respondent would have no control over any further use or dissemination of that information. I do not consider that the fact that the Applicant's position as a police officer provides for sanctions should the information be released in breach of his obligations is an answer to my view that the public interests public interest factors against disclosure outweigh those in favour of release of the information.
12. In my view, the correct and preferable decision is to not release the withheld information. Accordingly the Respondent's decision should be affirmed.

Order The decision under review is affirmed I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2019