Medlyn v Commissioner of Police

The role of the Tribunal

1. The decision of the respondent to refuse the applicant access to the information for which he sought access is an administratively reviewable decision by the Tribunal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 30; ADR Act, ss 7 and 9 and GIPA Act, ss 80 and 100.
2. In this case, the administratively reviewable decision is the decision the respondent made on remittal (i.e. the remitted decision of 20 May 2019): ADR Act, s 65(4).
3. The Tribunal's function on administrative review is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual matter and any applicable written or unwritten law: ADR Act, s 63(1). In deciding what the correct and preferable decision is, the Tribunal sits in the shoes of the decision maker and re-makes the decision, as if it were the administrator: ADR Act, s 63(2). In doing so, the Tribunal is not constrained by the material that was before the administrator: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
4. As a general rule, in administrative review of an administratively reviewable decision, neither party bears an onus of proof. However, s 105 of the GIPA Act provides that, in administrative review proceedings under that Act, the onus is on the agency (in this case, the respondent) to establish that its decision is justified.
5. Section 107(1) of the GIPA Act provides that the Tribunal must ensure that it does not, in its reasons for decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. Section 107(2) and (3) of the GIPA Act provide a similar restriction when receiving evidence and hearing argument during the course of the hearing. In light of this restriction, an unredacted copy of the information is issue was accepted into evidence in confidence and the hearing was conducted, in part, in private in the absence of the applicant and the public. A nonpublication order was also made in regard to the confidential material and the hearing conducted in confidence: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 64(1)(b), (c) and (d).

Background and Scope of the applicant's access application

1. The applicant's access application was lodged with the respondent in November 2017. In that application, the applicant sought access to 'every statement made by everyone in relation to my case and posted to me ...'.
2. The respondent determined the applicant's access application on 11 May 2018. In his determination, the respondent identified the documents he held that contained information falling within the terms of the applicant's access application. Included in in the Schedule of documents the respondent had located were:

• an Event Summary
• a COPS printout
• an Indictable Brief of Evidence Covering Sheet
• a Facts Sheet
• a statement of Constable D Liackman
• a statement of Constable D Mortensen
• a statement of Constable L Smith
• two statements of Senior Constable N Drane
• Police Note Book Entries
• Victim statements
• Witness statements

1. The respondent determined to give the applicant access to all the information in the Indictable Brief of Evidence Covering Sheet and the Police Note Book Entries. The applicant was also granted access, in part, to the information in the Facts Sheet, the statements of the abovementioned Police Officers. However, the respondent decided to refuse to grant the applicant access to the remainder of the information in those statements and the entirety of the information in the victim and witness statements. Nor did the respondent identify the number of statements that had been located.
2. It is unclear whether the Facts Sheet for which the applicant was given access, in part, was what is commonly referred to as a Police Statement of Facts. However, as neither party raised this when I made the orders on 22 October 2019, I have not considered this any further.
3. In his application for internal review by the respondent and external review by the Information Commissioner and the Tribunal, the applicant only sought review of the information in the victim and witness statements: GIPA Act, ss 82, 89 and 100.
4. On internal review, the respondent decided to affirm the original decision. On external review, the Information Commissioner recommended that the respondent reconsider its decision and make a new decision based on the recommendations contained in her decision.
5. In its 17 April decision, at [43], the Tribunal noted that the applicant had further narrowed the scope of his access application, as follows: 43 The Applicant indicated that he does not seek the complete statements. He said that he is already aware of the details of the witnesses and does not require any identifying information. He narrowed the scope of his request to the extent that he only seeks the observations made by the witnesses. He consented to the redaction of any information that would identify the witnesses in any way and any information that would identify the location or the time on which the event occurred.
6. It is accepted that the Tribunal's reference to witnesses, includes the victims.

Matters in issue

1. There are essentially two matters in issue before the Tribunal. These are: 1. whether it is open to the Tribunal to refuse to deal with the applicant's application under s 60(1)(d) of the GIPA Act, and if it is open, whether the correct and preferable decision is to refuse to deal with the applicant's application under that section; or 2. whether in the circumstances of this case, the public interest considerations against disclosure of the redacted information for which the applicant has sought access, on balance, outweighs the public interest considerations in favour of disclosure: GIPA Act, s 13.

The GIPA Act

1. Although the Tribunal set out the relevant provisions of the GIPA Act in its April 2017 decision, it is convenient to re-state these so as to re-iterate the approach the Tribunal is to take in this review of the respondent's remitted decision. This approach is similar to what was required of the respondent when making his decision.
2. First, the object of the GIPA Act is to give every member of the public an enforceable right to seek access to government information and only restrict access where there is an overriding public interest against disclosure (see sections 3, 5, 9 and 13 of the GIPA Act).
3. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information, unless there is an overriding public interest against disclosure.
4. The test for determining whether there is an overriding public interest against disclosure is set out in section 13 of the GIPA Act. That section provides: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
5. Subsection 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Subsection 12(2) of the Act provides that there is no limit to the public interest considerations in favour of disclosure of government information. The note to that subsection sets out some examples of public interest considerations in favour of disclosure. These include information that is personal information of the person to whom it is to be disclosed.
6. The public interest considerations against disclosure are limited and these are set out in section 14 of the GIPA Act. Subsection 14(1) provides that there is to be a conclusively presumed overriding public interest against disclosure of any government information described in Schedule 1 of the Act. The respondent has not relied on this subsection. It has relied on a number of the public interest considerations against disclosure set out in the table to subsection 14(2) of the GIPA Act, which are set out at paragraph [4] above.
7. Section 15 of the GIPA Act sets out the principles that apply to public interest determination as follows: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
8. Section 54 of the GIPA Act makes provisions for the agency to consult another person, in certain circumstances, before providing access to the access applicant. One such circumstance is where the information for which access is sought is personal information about a person, other than the access applicant, and the agency proposes to grant the access applicant access to that information. That section relevantly provides as follows: 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that: (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information: (a) includes personal information about the person, or (b) …
9. The term 'personal information' is defined in cl 4 of Sch 4 of the GIPA Act as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and 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. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following - (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, (c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
10. In this case, while the information in issue includes personal information of a person other than the applicant, the respondent was not required to consult these persons as he had decided to refuse to grant the applicant access to that information on the grounds that there was a public interest consideration against disclosure. For the reasons that follow, I have come to the same conclusion. Hence, a requirement for consultation does not arise in this application.
11. Section 55 of the GIPA Act sets out how personal factors of the application are to be taken into account in determining where the balance lies between the competing public interests. That section provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) 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. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73
12. Section 58 of the GIPA Act sets out how an access application is to be decided. That section relevantly provides as follows: 58 How applications are decided (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
13. Section 59 of the GIPA Act relevantly provides: 59 Decision that information already available to applicant (1) An agency can decide that information is already available to an applicant only if the information is - (a) … (b) available to the applicant from, or for inspection at, the agency free of charge in accordance with this Act or the agency's policies and practices, or (c) …, or (d) available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant's possession, or (e) …. (2) An agency is not required to provide access to information that the agency has decided is already available to the applicant, but notice of the decision must indicate why the agency believes the information is already available to the applicant and, if necessary, how the information can be accessed by the applicant.
14. Section 60 sets out the circumstances in which an agency can decide to refuse to deal with an application for access. That section relevantly provides as follows: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) - … (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order, …
15. Section 72 makes provision for the forms in which access is to be granted. That section relevantly provides as follows: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways - (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless - (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note. Decisions about how to provide access are reviewable under Part 5.
16. In this case, the applicant seeks a copy of the redacted information.
17. Subsection 73(1) of the GIPA Act provides that an agency is not entitled to impose any conditions on the use or further disclosure of information to which access is provided by the agency. However, subsection 73(2) and (3) makes provision for conditions to be imposed as to 'how' access may be exercised.

Material before the Tribunal

1. In his correspondence with the Tribunal, and during oral submissions at the hearing, the applicant re-iterated that he was only seeking access to the information in each victim and witness statement that amounted to an observation or assertion about him and the specific conduct he was alleged to have engaged in towards each victim. It was his contention that these observations and assertions were either untrue or failed to amount to the acts and omissions the subject of the charges of which he was convicted.
2. The applicant said he had only pleaded guilty to the charges laid against him on legal advice. He said he has suffered greatly as a consequence and it is for this reason that he seeks access to what was said by the victims and the witnesses in their respective statements so that he can challenge his conviction. As I have already noted, the applicant did not seek access to the names of the victims or the witnesses as he already knew who they were.
3. In support of his application the applicant relied on: 1. a Polygraph Examination Report of a polygraph examination he voluntarily undertook, in March 2019; and 2. a letter of support from his daughter, dated 27 September 2019.
4. On 8 April 2020, the applicant forwarded a further copy of the Polygraph Examination Report and his daughter's statement to the Tribunal. He also forwarded a copy of: 1. an email exchange between himself and Jeffrey David, of Hanson Lawyers, in June 2010, in which he requested the names of the victims. He said he recollected some but not all. Jeffry David, responded by saying: 'You collected your file on 13 May 2010 so that information should be there.'; and 2. a copy of a document entitled 'Facts on Sentence. I understand this was the information presented at the applicant's sentencing hearing after he had pleaded guilty as it contains information of the charges that had been laid against him and a summary of the acts and omissions of the applicant in regard to each charge. The applicant said he had been provided with an unredacted copy of this document in response to an earlier GIPA access application he had made.
5. At the hearing Ms Tipene, on behalf of the respondent relied on: 1. its decision on remittal which had attached to it a number of documents, including: 1. copies of two newspaper articles, that were contained in the local newspaper at the time the applicant was charge and convicted; 2. an extract from a 'Report of the NSW Sentencing Council', dated December 2010, that identifies defendants who were sentenced, during that year, in a Local Court located at various country towns within New South Wales. The extract includes details of the applicant's conviction, in 2008, of three charges. Also included is a brief description of the conduct the subject of each charge; 3. heavily redacted copies of the transcript of 6 electronic records of interview with Police and 17 statements of witnesses, some of which are very short; and 1. an un-redated copy of the abovementioned record of interviews and statements, that were provided in confidence, pursuant to s 107 of the GIPA Act and for which an order under s 64(1)(d) of the NCAT Act was made.
6. Ms Tipene also relied on the written submissions she had relied on at the hearing before the Tribunal on 17 April 2019 (the submissions were dated 21 February 2019 and 16 April 2019) and those that were filed in these proceedings (dated 21 May 2019).
7. In a written response to the material the applicant had provided on 8 April 2020, Ms Tipene said and re-iterated the following: 1. that the document 'Facts on Sentence' was outside the scope of the applicant's access request of 29 November 2018. It was also not a document held by the respondent and should not be relied on by the Tribunal; 2. 'the brief of evidence was served on the Applicant as part of his criminal proceedings and in accordance with a statutory obligation to serve the brief of evidence on the Applicant; 3. 'the brief of evidence contained the victim and witness statements'; 4. the applicant's criminal proceedings did not proceed to a trial as the applicant pleaded guilty and was sentenced by a single judge on an agreed statement of facts; 5. there is no evidence that the sentencing occurred in an 'open court'; 6. the respondent has always understood that the applicant knew the names of the victims and the witnesses. However, as set out in the respondent's submissions of 16 April 2019, this information has never been publicly disclosed, in court or otherwise.
8. I accept that the document 'Facts on Sentence' is not a document held by the respondent and the information in that document does not fall within the scope of the applicant's external review application the subject of these proceedings. However, in my opinion, it is a document that can and should be taken into account in regard to the personal factors of the application.

S 60(1)(d) Refuse to Further Deal with the Applicant's Application

1. In the proceedings before the Tribunal on 17 April 2019, in addition to the submissions made on whether there was an overriding public interest consideration against disclosure of the entirety of the information in the victim and witness statements, Ms Tipene, on behalf of the respondent, submitted that it was open to the Tribunal to find that the correct and preferable decision was to refuse to further deal with the applicant's access application under s 60(1)(d) of the GIPA Act: the Tribunal's remittal decision, at [41].
2. At [47], of the remittal decision, the Tribunal agreed that 'consideration may need to be given to section 60(1)(d) of the GIPA Act'. However, the Tribunal did not consider it any further in its reasons for decision.
3. Ms Tipene has made the same submissions in these proceedings.
4. In support of this submission, Ms Tipene relied on the decision of the Appeal Panel in Commissioner of Police v Danis [2017] NSWCATAP 7 (the Danis appeal) and the Tribunal in Collins v Department of Finance, Services & Innovation [2018] NSWCATAD 60 (Collins).
5. In the Danis appeal (supra), at [43], the Appeal Panel made the following observations in regard to s 60 generally: 43 Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d))I
6. It is not disputed that s 60 of the GIPA Act gives an agency (and the Tribunal on external review) a discretion to make a decision to refuse to deal with an access application in those circumstances where an access application satisfies one or more of the matters prescribed in s 60(1)(d). On external review, there is of course an onus on the agency to satisfy the Tribunal of those matters.
7. In the Danis appeal (supra), the decision the subject of review by the Tribunal was a decision the administrator had made under s 60(1)(d) of the GIPA Act. In Collins the decision the subject of review by the Tribunal was, in part, also a decision the administrator had made under s 60(1)(a), (b), (b1) and (d) of the GIPA.
8. In this case, the decision the subject of review is not a decision of the respondent to refuse to deal with the applicant's access application on the grounds of s 60(1)(d). Nevertheless, I agree, subject to being satisfied that the information for which the applicant seeks access falls within the terms of s 60(1)(d), it is open to the Tribunal, in the exercise of its discretion, to find that the correct and preferable decision is a decision made under this subsection: see ADR Act, s 63(2).
9. However, in my opinion, given the objects of the GIPA Act, where an agency has dealt with an access application and refused access on the grounds that, on balance, the public interest consideration against disclosure outweighs the public interest consideration in favour of disclosure, it may be difficult for an agency to persuade the Tribunal, on external review, that a decision under s 60(1)(d) of the GIPA Act is justified. There will of course be circumstances where additional information comes to light, subsequent to the agency having made its decision, or internal review decision, which satisfies the Tribunal that a decision under s 60(1)(d) is justified.
10. In this case, no additional information has come to light, it has always been known that the applicant was given a copy of the Brief of Evidence containing a copy of the victim and witness statements and that this Brief of Evidence was destroyed in a fire. Nevertheless, as this is an issue pressed by the respondent, I have considered the application of s 60(1)(d).
11. It is not disputed that there are two limbs to 60(1)(d) that need to be established. First, it must be established that the information in issue is or has been the subject of a subpoena or other order of a court for the production of documents.
12. The second limb that must be established is that the information is available to the applicant as a result of having been produced in compliance with the subpoena or other order.
13. In the Danis appeal (supra), the information in issue was a copy of a DVD recording which Mr Danis had viewed during recent proceedings he had initiated in the Family Court. The respondent produced a copy of the DVD recording, to the Family Court, in response to a subpoena, issued by that Court, at the request of Mr Danis. The Family Court allowed Mr Danis to view the DVD but he was not permitted to have a copy. Hence, it was not disputed that the information for which Mr Danis sought access under the GIPA Act clearly fell within the terms of the first limb of s 60(1)(d) of the GIPA Act.
14. In Collins (supra), at [31], the Tribunal said the following in regard to the information for which the agency had made a s 60 refuse to deal decision (italics added): 31 The relevant question for consideration in regards to section 60 is whether or not the Applicant has previously been provided with access to the information. It is apparent from the material before me that this is the case. I am satisfied that the information that is the subject of this aspect of the determination has already been provided to the Applicant. This has either been provided directly by the Respondent in response to a GIPA access application or through litigation. The Respondent therefore has discretion in regard to whether it will deal with the further request. It has refused to deal with the request on this basis. Given the volume of the material that falls within this category, this was a reasonable decision. In my view that determination should be affirmed as the correct and preferable decision.
15. The Tribunal did not elaborate on why it had determined that the information obtained through litigation fell within s 60(1)(d) of the GIPA Act.
16. The Information Commissioner submitted that the words 'order of a court for the production of documents', as they appear in s 61(1)(d), should be construed in the context in which they appear. In this regard the Information Commissioner submitted that the words should be understood as extending to an order that is analogous to a subpoena that requires the 'production' of documents to the court, examples of which was an order made under s 68 of the Civil Procedure Act 2005 (NSW) and an order made under s 36 of the Evidence Act 1995 (NSW).
17. Section 68 of the Civil Procedure Act provides as follows: 68 Attendance at court and production of documents and things to court Subject to rules of court, the court may, by subpoena or otherwise, order any person to do either or both of the following - (a) to attend court to be examined as a witness, (b) to produce any document or thing to the court.
18. Section 36 of the Evidence Act relevantly provides: 36 Person may be examined without subpoena or other process (1) The court may order a person who - (a) is present at the hearing of a proceeding, and (b) is compellable to give evidence in the proceeding, to give evidence and to produce documents or things even if a subpoena or other process requiring the person to attend for that purpose has not been duly served on the person. (2) A person so ordered to give evidence or to produce documents or things is subject to the same penalties and liabilities as if the person had been duly served with such a subpoena or other process.
19. The Information Commissioner submitted that this approach was consistent with the objects in s 3 of the GIPA Act, to give 'members of the public an enforceable right to access government information' (s 3(1)(b)) and the express intention of Parliament that the GIPA Act be interpreted and applied so as to further its objects (s 3(2)(a)). Hence, it was argued that a narrow construction of s 60(1)(d) should be preferred.
20. Ms Tipene argued that both limbs of 60(1)(d) were satisfied in this case, because the victim and witness statements were contained in the Police Brief of Evidence that was served on the applicant, through his solicitor, in the course of his criminal proceedings. Ms Tipene asserted that the Police Brief was served on the applicant's solicitor pursuant to an order of the court, made under 61(1) of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act). That order, Ms Tipene contends, to be an order 'of a court for the production of documents'.
21. Section 61 of the Criminal Procedure Act provides as follows: 61 Requirement to disclose evidence (1) The prosecutor must, after the commencement of committal proceedings and on or before any day specified by order by the Magistrate for that purpose, serve or cause to be served on the accused person a brief of evidence relating to each offence the subject of the proceedings.
22. Section 62 of the Criminal Procedure Act prescribes what matters are to be disclosed in a brief of evidence, which includes copies of all material obtained by the prosecution that forms the basis of the prosecution's case, or that is reasonably capable of being relevant to the case of the accused person.
23. As noted by the Information Commissioner, ss 61 and 62 came into operation on 30 April 2018, with the coming into force of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), and the applicable provisions at the time of the applicant's criminal proceedings the applicable provisions were ss 60 and 75, which provided as follows: 60 Time for taking prosecution evidence (1) On the first return date for a court attendance notice in any committal proceedings, or at such later time or times as the Magistrate determines, the Magistrate must set: (a) the date, time and place for taking the prosecution evidence and the time within which written statements, and copies of any proposed exhibits identified in the statements (or a notice relating to inspection of them), must be served on the accused person, and (b) the time within which the accused person must serve on the prosecutor any notice requesting the attendance of a person who made a written statement. Note. Prosecution evidence is to be given by written statements (see Division 3). 75 Written statements to be served on accused person (1) The prosecutor must serve or cause to be served on the accused person a copy of the written statements relating to the offence, and copies of any proposed exhibits identified in the statement (or a notice relating to inspection of them), within the time set by the Magistrate under section 60.
24. In my view, on their proper construction, an order of a Magistrate under s 61 (as it applies today), or s 60 (as it applied at the relevant time), are procedural in nature and not an order of a court for the 'production' of a document(s) falling with the terms of s 60(1)(d) of the GIPA Act.
25. As indicated in the title of the 'Criminal Procedure Act' it is an Act that makes provision for how proceedings in regard to summary offences and indictable offences are to be conducted. In regard to indictable offences it includes provisions relating to committal proceedings prior to a trial. For many years, the Criminal Procedure Act, has provided that committal hearings are to be conducted on the basis of written statements of evidence, prepared by the Police Officer(s) who investigated and arrested the accused. The purpose of s 61 and 60 is to ensure that the prosecutor (a Police Officer, or an Officer of the DPP) provides the accused with a copy of the evidence (i.e. written statements), and any other relevant material, relating to the alleged offending well before a committal hearing so that the accused is aware of what evidence there is against him or her. This evidence, is commonly referred to as the Brief of Evidence.
26. The prosecutor is also required to provide a Brief of Evidence to a person accused of a summary offence.
27. Even if I am wrong in my construction of s 60(1)(d) of the GIPA Act, and an order of the court under s 61 (as it applies today) or 60 (as it applied at the relevant time) is an order falling within s 60(1)(d) of the GIPA Act, the respondent has not provided any evidence to support its contention that an order was in fact made by a Magistrate requiring the prosecutor to provide the applicant's solicitor with the Brief of Evidence by a particular date and that it was served in accordance with an order of this kind. Hence, on this fact alone I would not be satisfied that the respondent has established that a decision under s 60(1)(d) of the GIPA Act is justified.
28. The newspaper article that reported on the applicant having been charged, states that the DPP had decided not to take the matter to the District Court even though the charges laid against the applicant were indictable offences and the matter would be dealt with in the Local Court. I accept the reporter may have misunderstood the procedure for dealing with an indictable offence, where an accused has pleaded guilty. However, other than there being no dispute that there was no committal hearing in regard to the charges laid against the applicant and that the victim and witness statements were never submitted or tendered into court, there is no evidence of any orders of the court in regard to the Brief of Evidence being provided to the applicant.
29. In regard to the second limb of s 60(1)(d), the Tribunal, on remittal of the application of Mr Danis, gave the word 'available', a wide meaning: Danis v Commissioner of Police [2017] NSWCATAD 144. At [22], the Tribunal held: 22 … [On] my reading of the Act I conclude that an applicant who has "access to" information within the meaning of the GIPA Act has been provided with a means of viewing, obtaining or otherwise accessing the information under that Act. Information which is described as "available to" an applicant is information which the applicant may access by some means outside the Act (see for example ss 59, 80(f)). In my view the DVD was available to the applicant, as he could inspect it at the Family Court. The fact that he could not copy it does not mean that it was not available.
30. The Tribunal went on to consider whether the information 'is available' to Mr Danis as a result of the DVD having been produced in compliance with the subpoena. The Tribunal found that it 'is available' to Mr Danis. It is unclear whether the Tribunal made this finding on the basis that Mr Danis continued to have a right to view the DVD in the Family Court, or whether it 'is available' because he had been given access by viewing the DVD in the Family Court.
31. For the reasons I have given, it is unnecessary for me to decide the issue of availability in this case. However, in light of the observations made by the Appeal Panel in the Danis appeal, I accept that this issue should be determined having regard to the overall purpose of s 60.

Public interest considerations

1. As I have noted, in its remitted decision, the respondent granted the applicant access to some of the information contained in the records of interview and the statements. The information which has been disclosed is; 1. the information on the cover page of each record of interview which identifies when and where the interview took place and the name of the Police Officers who conducted the interview - the name of the interviewee is redacted. Also disclosed are the number of questions asked in each interview, the age of the interviewee and non-identifying information about the interviewee such as the place of the alleged incident, which was also disclosed in the local newspaper articles that were attached to the respondent's submissions of 21 May 2019; and 2. the heading 'Statement of a Witness', the matter in respect to which the statement is made, where the statement was made, the date of the statement, the standard introductory paragraph to each statement (i.e. that the statement made by the deponent accurately set out the evidence that the deponent would, if necessary, give in court), the date and place of the alleged incident and the name of the Police Officer witnessing the statement.
2. The remainder of the information contained in the victim and witness statements have been redacted.
3. I have carefully considered that material and the open material provided by the applicant and the respondent. However, as I explained to the applicant a number of times, in applying the public interest test set out in s 13 of the GIPA Act, it is necessary for the Tribunal (as it was for the respondent) to adopt a staged approach to the issue as to whether there is an overriding public interest against the disclosure of government information: see Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [23] to [30]. This involves identifying the public interest considerations in favour of disclosure, identify the public interest against disclosure and then determining where the balance lies between these competing public interests.

Public interest considerations in favour of disclosure - s 12(1)

1. The respondent acknowledges that the public interest considerations in favour of disclosure are not limited. It is acknowledged that some of the information for which access has been refused is, in part, personal information of the applicant in that it is information or an opinion about him. However, as I have noted below, it is also personal information of the person who has expressed his or her opinion about the applicant and what he was alleged to have done.
2. I accept that a disclosure of information of this kind may reasonably be expected to enhance Government accountability on the methods used to investigate allegations of criminal offending.
3. While the applicant did not directly assert that a disclosure of the information could reasonably reveal that his arresting officer and other officers involved in his criminal matter had engaged in improper conduct, he did assert that the information in the victim and witness statements/records of interview were lies and that he could not have done what he was alleged to have done within the time alleged. He also asserted that, in 2018, his arresting officer had threatened to ensure that he would not obtain access to the information in the victim and witness statements.
4. In my opinion, having regard to the material before the Tribunal there is nothing contained within the information in dispute which suggests or indicates that the information was recorded in a manner that was improper or unlawful. Accordingly, I have not considered this public interest consideration in favour of disclosure any further.

Public interest considerations against disclosure - s 14(2)

1. As noted above, the respondent relies on the public interest considerations in cls 1(d), 1(g), 3(a), 3(b) and 3(g) of the Table to s 14(2) of the GIPA Act.
2. The public interest considerations against disclosure, contained in the Table to s 14(2) of the GIPA Act, are dependent on whether the disclosure of the information in issue 'could reasonably be expected to' have the effect as prescribed in the relevant clause in that Table. Whether disclosure of the information in issue 'could reasonably be expected' to have the relevant effect is an objective one; that is to be approached from the view point of a reasonable decision maker and based on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; (1992) 108 ALR 163 and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
3. In Camilleri (supra), at [26], the Appeal Panel held that at the stage of examining whether there is a public interest consideration against disclosure, this needed to be examined in the broader operational level of the relevant agency, rather that introducing particulars of the 'instant situation' that is before the Tribunal, which should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations.

Cl 1(d) prejudice the supply to the agency of confidential information that facilitates the effective exercise of the agencies functions

1. In its April 2019 decision, at [19] to [22], the Tribunal set out the arguments of the respondent in regard to this public interest consideration against disclosure and it is unnecessary for me to repeat these in full.
2. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13, at [58], the Appeal Panel of the former Administrative Decision Tribunal made the following remarks in regard to the exemption in cl 13(b)(ii) of the former Freedom of Information Act 1989 (NSW) (repealed): 58 … [requires] the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 …: `The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...'
3. In my opinion, these remarks equally apply to the public interest consideration against disclosure set out in cl 1(d) of the Table to s 14(2) of the GIPA Act, as it is in similar terms to that of the exemption in cl 13(b)(ii) of the former Freedom of Information Act 1989.
4. The mission and functions of the respondent are set out in s 6 of the Police Act 1990 (NSW). They include working with the community to reduce violence, crime and fear and to provide police services for New South Wales. Integral to the provision of police service is the maintenance of public order and safety, enforcing the law and preventing, detecting, and investigating criminal activities. To fulfil this function the respondent relies on members of the public to voluntarily come forward and report honestly and openly any incidents in which they have been involved or seen which they believe to have been unlawful or harmful. This includes the preparation of records of interview and statements from those who come forward and who are victims of, or witnesses to an alleged criminal offence. Again, the participation in a record of interview and the preparation of a statement is voluntary.
5. So as to ensure that members of the public come forward voluntarily, it has long been accepted that confidentiality ordinarily attaches to such communications and any investigation that may follow as a result: Camilleri (supra) and [40]; Fisher v NSW Police [2002] NSWADT 267, at [34]; AEZ v Commissioner of Police [2009] NSWADT 90, at [65] to [72] and Simring v Commissioner of Police [2009] NSWSC 270 at [69].
6. As noted above, in Mullett (supra), the Tribunal noted that in regard to this public interest consideration against disclosure of government information, the question is not whether the confider of the information would in future refuse to supply information of this kind. It is a question as to whether disclosure of the information could reasonably prejudice future supply of this type of information from those sources that are available or likely to be available to the agency: see also Martin v Commissioner of Police, NSW Police [2005] NSWADT 23.
7. I accept the evidence of the respondent that, to facilitate the effective exercise of its law enforcement and investigatory functions, it relies on members of the public to voluntarily and confidentially supply information of the kind the subject of this application.
8. Hence, I am satisfied that a disclosure of the redacted information in this application could reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the respondent's functions.

Cl 1(g) result in the disclosure of information provided to the agency in confidence

1. The word 'disclose' is defined in cl 1 of Schedule 4 of the GIPA Act to include making information available and release, or provide access to information.
2. For the reasons set out above, I am satisfied that a disclosure of the redacted information in the victim and witness statements under the GIPA Act, could reasonably be expected to result in the disclosure of information provided to the respondent in confidence.

Cl 3(a) reveal an individual's personal information

1. I accept that the redacted information is personal information about the applicant (i.e. an opinion about the applicant whose identity is apparent or can reasonably be ascertained from the information or opinion). However, I am also satisfied that the same information is also personal information about the victim(s) and witnesses (i.e. also personal information or opinion about the victim or witness who made the statement and whose identity is apparent or can reasonably be ascertained from the information or opinion). It is well accepted that a letter of complaint written by person A about person B contains personal information about A and B: see NV v Randwick City Council [2005] NSWADT 45, at [33] and [34] and in such circumstances it is not possible to separate that which is personal information of A and that which is personal information about B.
2. I am otherwise satisfied that the remainder of the redacted information is personal information or opinion about the victims and the witnesses whose identity is apparent or can reasonably be ascertained from the information or opinion.
3. The question is whether a disclosure of this information could reasonably be expected to 'reveal' the personal information about a victim or witness. As noted by the Tribunal, at [27], of its April 2019 decision, the word 'reveal' is defined in cl 1 of Sch 4 of the GIPA Act, to mean 'to disclose information that has not already been publicly disclosed (otherwise than by lawful means)'.
4. On the material before the Tribunal, there is no evidence to indicate that this information has been publicly disclosed. Even though the applicant was provided with a copy of this information prior to his plea of guilty, this was not a disclosure to the public at large. Nor, in my opinion, was the personal information, as contained in the statements, disclosed in the newspaper articles to which the applicant has referred. These articles were very brief and while they named the applicant, the nature of the charges laid against him and where the alleged incidents had occurred, the victims and witnesses were not named. Nor was there any disclosure of their personal information as contained in the redacted information in these proceedings.
5. I accept that the applicant has been provided with the personal information of the victims and witnesses to the extent that information is contained in the unredacted copy of the 'Facts on Sentence' he has been able to obtain. However, this does not mean that the information, as contained in the victim and witness statements, have been disclosed, let alone publicly disclosed. there is no evidence that this information was publicly disclosed at the applicant's hearing on sentence. The unredacted copy of the 'Facts on Sentence' also contains the personal information of the applicant and I doubt he would argue that this has been publicly disclosed.
6. Accordingly, I am satisfied that the respondent has established that a disclosure of the redacted information in the victim and witness records of interview and statements could reasonably be expected to reveal the personal information of the victims and witnesses.

3(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

1. Section 20 of the Privacy and Protection Information Protection Act 1998 (NSW) (PPIP Act) provides that the information protection principles prescribed in ss 8 to 19 of that Act apply to government agencies and s 21(1) of that Act provides that a public sector agency must not do anything, or engage in a practice, that contravenes an information protection principle.
2. The information protection principles in ss 8 to 19 of the PPIP Act make provision for how a public sector agency is to collect, store, use and disclose personal information. Personal information is defined in s 4 of the PPIP Act and is in similar terms to that contained cl 4 of Sch 4 of the GIPA Act.
3. Section 18 of the PPIP Act sets out the circumstances in which there can be a disclosure of personal information. In summary the circumstances are: 1. where the disclosure is directly related to the purpose for which the information was collected; 2. the individual is reasonably likely to have been aware, or is made aware in accordance with s 10 of the PPIP Act, that information of this kind is usually disclosed; or 3. the agency believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious and imminent threat to life or health.
4. For the reasons set out above, none of the abovementioned circumstances apply in this case. Hence, I am satisfied that the respondent has established this ground of public interest consideration against disclosure.

Cl 3(g) personal information about a child that would not be in the best interest of the child to have disclosed

1. There is no dispute that the redated information in the victim and witness statements includes personal information about a child. I accept that the personal information about a child is very sensitive.
2. It is not disputed that the child is now an adult.
3. The Information Commissioner, in her review, was satisfied that cl 3(g) was a relevant public interest consideration against disclosure. However, the Information Commissioner went on to note that this public interest consideration against disclosure requires the agency to consider further the effect a disclosure of the particular information would have on the best interest of the child. On the material before her, the Information Commissioner was not satisfied that the respondent had demonstrated, in his internal review notice of decision, why a disclosure of the personal information of a child would not be in the child's best interest.
4. In her written submissions of 21 May 2019, Ms Tipene noted that the courts consider personal information about a child, of the kind contained in the redacted information, as being particularly sensitive. Hence, Parliament has made provision for courts to suppress such information by making non-publication orders. Furthermore, such orders are made even if, at the time the information is disclosed at a hearing, the person is no longer a child.
5. It is contended that a similar approach should be taken when considering the s 3(g) public interest consideration against disclosure.
6. In Mansfield v Department of Family and Community Services [2014] NSWCATAD 43, the Tribunal found that the respondent had established the cl 3(g) public interest consideration against disclosure. In that case, the children whose personal information had been redated were still children at the time of hearing.
7. In a more recent decision of the Tribunal, in Sui v Department of Family and Community Services [2014] NSWCATAD 115, the applicant had sought access to information, held by the respondent agency, concerning her foster care and that of her sister. At the time the access applicant made her access application, she was an adult, as was her sister. In that case, the respondent agency also relied on cl 3(g). At [67] and [68], the Tribunal made the following observations in regard to that claim: 67 In addition, the respondent has not addressed the question of whether cl 3(g) applies where a person who is mentioned in a document was a child at the time the document was created irrespective of the person's current age, or whether it only applies where the individual in question is currently a child. The words "it would not be in the best interests of the child" suggest that the latter is intended. All of the children referred to in the documents are now adults. In the absence of submissions from the respondent as to the application of this clause, I am not persuaded that it applies to individuals who are no longer children. 68 Given that the respondent has not clearly indicated the instances in which it relies upon cl 3(g), and that it has not persuaded me that the clause applies in respect of persons who are now adults, I find that it has not discharged its onus of establishing that this public interest consideration applies in relation to any of the information the applicant seeks
8. In my opinion, the cl 3(g) public interest consideration against disclosure should be construed in the same manner the other public interest considerations against disclosure in the Table to s 14(2) have been construed; namely where: 1. the disclosure is the disclosure of personal information about a child; and 2. the disclosure of information of this kind could reasonably be expected to have the effect that it would not to be 'in the best interests of the child' to have it disclosed.
9. In my opinion, the phrase 'in the interest of the child' is used in a generic sense (i.e. the individual rights of the child) and not used in the context of the child to which the information relates.
10. On this basis, I am also satisfied that this public interest consideration against disclosure applies even though at the time consideration is given to whether the information should be disclosed, the child about whom the personal information relates is no longer a child. The fact the person is no longer a child is nevertheless a factor to be taken into account in balancing where the competing public interest lays.
11. As noted in Mansfield (supra) children are particularly vulnerable and in need of protection against any risk of significant harm. Such protections are provided for in the Children and Young Persons (Care and Protection) Act 1998 (NSW) (The Care and Protection Act) and other legislative instruments. The Care and Protection Act contains mandatory reporting requirements of incidents of significant harm to the respondent and other authorised officers. Such reports contain personal information about the child to whom it relates and this information is confidential and not publicly disclosed: see Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29. Disclosure of such information is limited in the interest of the child.
12. Accordingly, I am satisfied that the respondent has established that this public interest consideration against disclosure applies.

Where does the balance lie?

1. For the reasons that follow I find that, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.
2. In this regard I have taken as a starting point the general presumption in favour of government information (GIPA Act, s 5). I note the principles that apply to my public interest determination (GIPA Act, s 15) and that conditions cannot be placed on the applicant in regard to the further disclosure of any information I decide he be granted access to (GIPA Act, s 73).
3. I have given some weight to the public interest in providing the applicant with his personal information and I accept the applicant is seeking access to the information to assist him in challenging his conviction, which is a private right.
4. I have not given significant weight to the public interest in providing the applicant with his personal information as he already has a copy of the 'Facts on Sentence', which contain the information as to the acts and omissions to which he had pleaded guilty and was convicted.
5. I accept the applicant recently undertook a polygraph and has experienced some difficulties since his convictions, however, this does not assist me in determining where the balance lays between the competing public interests, as they are matters of private concern.
6. I have given minimal weight to the public interest that a disclosure may reasonably be expected to enhance Government accountability on the methods used to investigate allegations of criminal offending, as a disclosure of the redacted information would not enhance what has already been disclosed in regard to the methods used by the respondent to investigate allegations of criminal offending.
7. I have given considerable weight to the public interest considerations against disclosure in cl 1(d) and 1(g) as they directly relate to the effective exercise of the respondent's core functions. I have found that the information was provided voluntarily and in confidence, to facilitate the effective exercise of the respondent law enforcement functions. The information was provided on the understanding that the victims and the witnesses may be required to give evidence in court in regard to what they said, which they were not required to do as the applicant had pleaded guilty. I also note that the personal factors of the applicant are not a relevant matter to be taken into account when considering this public interest consideration against disclosure.
8. I have also given considerable weight to the public interest considerations against disclosure in cl 3(a), 3(b) and 3(g). While I accept that some of the information is personal information of the applicant, I am not satisfied that this information can be separated from that which is the personal information about the victims and the witnesses as contained in the redacted information. I am satisfied that the information includes personal information about a child that is very sensitive. I am satisfied that a disclosure of the information would be a breach of the disclosure information protection principle in s 18 of the PPIP Act.

What is the correct and preferred decision?

1. For the reasons set out above, I find that the correct and preferred decisions is to refuse the applicant access to the redacted information in the victim and witness statements the subject of this application.
2. Accordingly, the appropriate order is to affirm the decision of the respondent made on 20 May 2019.

Order 1. The decision of the respondent, made on 20 May 2019, 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 May 2020