Page v Commissioner of Police - [2020] NSWCATAD 163 - NSWCATAD 2020 case summary — Zoe

NSWNSWCATAD

Page v Commissioner of Police

[2020] NSWCATAD 163

NCAT Administrative and Equal Opportunity|2020-04-07

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-04-07

Source

Original judgment source is linked above.

Judgment (53 paragraphs)

[1]

Background

The salient facts as set out below are taken from the redacted documents provided by NSW Police to the applicant. Each of the police officers named below is a member of NSW Police.
On 15 January 2019, there was a collision between two cyclists and their bicycles on a track at Sutherland. Senior Constable King and Probationary Constable Poore attended the scene of the collision and each made notes in their notebooks.
The applicant was one of those cyclists. He was knocked unconscious, injured and taken to hospital. His bicycle, helmet and shirt were also damaged.
On the same day, an entry was made into the NSW Police Computerised Operational Police System (COPS) database and given Event Reference Number E701199257.
On 19 January 2019, the applicant wrote to NSW Police stating that despite the applicant's requests, Sergeant McDevitt of Sutherland Police had refused to : 1. lay criminal charges against the other cyclist, for reckless wounding; 2. provide the name and contact details of the other cyclist; or 3. provide a copy of the police report.
On 23 January 2019, information relating to the other cyclist was printed from COPS, apparently by Chief Inspector Magrath (COPS Profile of the Other Rider).
On 26 January 2019, the applicant wrote to NSW Police, seeking a written response to his 19 January 2019 letter and the commencement of a criminal action for reckless wounding against the other cyclist. In that letter, he accused Sergeant McDevitt of misconduct.
On 4 February 2019, the applicant wrote again to NSW Police, alleging misconduct on the part of NSW Police officers arising from the failure to lay charges against the other cyclist and to provide him with details of the other cyclist (among other things).
Also on 4 February 2019, a Triage Form, numbered EXT 2019-0388 (Triage Form EXT 2019-0388), was completed by Chief Inspector Magrath. Triage Form EXT 2019-0388 concerns the applicant's complaint letter dated 19 January 2018 and was countersigned by Superintendent Box on 11 February 2019.

[4]

The Tribunal's task

The Tribunal's task, briefly stated, is to decide what the correct and preferable decision on whether access to the requested information should be given is, having regard to the material before it, including relevant factual material and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].
In so doing, the Tribunal is to ensure that it does not disclose any information for which there is an overriding public interest against disclosure; or in respect of information which the agency has claimed there is such an overriding interest but for which the Tribunal finds there is not: s 107 GIPA Act; University of New South Wales v McGuirk [2006[ NSWSC 1362 at [91]. To that end, some parts of these reasons have been marked "NOT FOR PUBLICATION" and are not to be published or otherwise disclosed to the applicant.
With one exception, it is no part of the Tribunal's role in this proceeding to consider the merits of the applicant's claims against NSW Police. The exception concerns the potential application of a public interest consideration in favour of disclosure where disclosure of the information could reasonably be expected to reveal or substantiate that NSW Police (or a member of NSW Police) has engaged in misconduct or negligent, improper or unlawful conduct. This is dealt with below under the heading "Disclosure of information that could reasonably be expected to reveal that an agency or a member of an agency has engaged in misconduct".
It is no part of the Tribunal's role to consider the merits of the applicant's claim against the other cyclist.
The material before the Tribunal is: 1. A bundle of documents titled "Respondent's Evidence" containing: 1. the access application; 2. the 9 September 2019 email; 3. the 4 October 2019 letter, notifying the original decision; 4. the internal review application; 5. the 4 December 2019 letter, notifying the internal review decision and attaching a Schedule of Documents indicating the documents that had been redacted and the grounds for such redactions; 6. the (redacted) documents produced by NSW Police to the applicant; 1. the documents produced by NSW Police to the applicant, but without redactions and which were provided to the Tribunal on a confidential basis; 2. written submissions from NSW Police dated 25 February 2020 and 1 April 2020; 3. written submissions from the applicant dated 17 March 2020 and 5 April 2020; and 4. oral submissions from the applicant and on behalf of NSW Police.
Neither party adduced evidence by way of written statement or affidavit. There was no oral evidence or cross examination.

[5]

The applicable law

The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act.
Interpretation of the GIPA Act is governed by s 3 of that Act which provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 9 (1) of the GIPA Act provides: 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
Section 58 of the GIPA Act deals with how access applications are decided by agencies. As noted above, NSW Police refused access to parts of documents pursuant to s 58(1)(d) of the GIPA Act. Section 58(1)(d) provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.. …
The onus of establishing that an agency's decision is justified lies on the agency: s 105 GIPA Act. That means the agency must, first, identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].
In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane. 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: The following are examples of public interest considerations in favour of disclosure of information: (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. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (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. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. … 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. … 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table 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). … 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, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 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. 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.
Thus it may be seen that the GIPA creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 GIPA Act), and the applicant has a legally enforceable right to the government information he seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 GIPA Act).
There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour for disclosure (s 13 GIPA Act). The presence of particular considerations against disclosure, being those set out in Sch 1 of the GIPA Act, is sufficient to compel the conclusion that there is an overriding public interest against disclosure such that the information is not to be disclosed (s 14(1) GIPA Act).
However, absent a Sch 1 consideration against disclosure the Tribunal's task is to consider and weigh in the balance: 1. the public interest considerations in favour of disclosure, which are unlimited and include: 1. the general public interest in favour of disclosure (s 12(1) GIPA Act); 2. the examples listed in the note to s 12(2) of the GIPA Act; and 1. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act.
In undertaking this task the Tribunal is entitled to take into account the "personal factors of the application" as factors in favour of disclosure (s 55 GIPA Act). The personal factors of the application are described in s 55 as: 1. the applicant's identity and relationship with any other person; 2. the applicant's motives for making the access application; and 3. any other factors particular to the applicant.
The Tribunal is also entitled to take into account personal factors of the application as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act.
In the present case, NSW Police does not rely upon any of cll 2, 4 or 5 of the table in s 14 of the GIPA Act, but does rely upon cl 3. It follows that the personal factors of the application may be taken into account as factors against disclosure of the information sought by the applicant only when considering whether disclosure of the information could reasonably be expected to have the effect described in a relevant sub clause of cl 3.
The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].
I turn now to consider the provisions relied upon by NSW Police as providing a public interest consideration against disclosure.

[7]

Could reasonably be expected

Each of these public interest considerations against disclosure includes the chapeau to s 14 which contains the phrase "… could reasonably be expected to have one or more of the following effects …".
The principles to be applied in considering whether disclosure of information "could reasonably be expected" to have a particular effect were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows: 68. There was no dispute between the parties that: … (2) The words "could reasonably be expected" are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] - ... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." (3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. (4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. (5) "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]. (6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26].
Whether disclosure of particular information "could reasonably be expected to" have a particular effect is, as NSW Police submitted, a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].
The requirements for proof of questions of fact in administrative review proceedings generally were recently summarised by the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]: [54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]: Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

[8]

Clause 1(d)

Clause 1(d) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
In Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 the Appeal Panel stated at [33] that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The inquiry "should focus on the point of receipt, and the administrative standards and community understandings which surround it" (at [34]).
In the same case, the Appeal Panel held at [40]: In its written submissions to the Tribunal below, reiterated on appeal, the agency submitted that there is an expectation, if not an express undertaking, that information reported to Police will be kept confidential and will only be used and disclosed by the Police in the conduct of law enforcement activities. In support of this view, the submissions drew on the observations of Smart AJ in Gene Simring v Commissioner of Police, NSW Police [2009] NSWSC 270, and also similar observations in a number of Tribunal decisions, for example, Fisher v Commissioner of Police [2002] NSWADT 267, DZ v NSW Police [2002] NSWADT 274 and FA v NSW Police [2003] NSWADT 196. There has been a long history of cases in the Tribunal that have recognised the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies: see, for example, the early cases of Taylor - v- Chief Inspector, RSPCA [1999] NSWADT 23; Mauger -v- General Manager, Wingecarribee Shire Council [1999] NSWADT 35; as well as the cases already mentioned. While the cases involved exemptions in the previous legislation cast in different terms, they reflect a recognition of the basic point made by the agency in this case. (emphasis added)
Thus, in the usual case, information supplied to NSW Police will be treated as confidential.
Such confidential information may be information that facilitates the effective exercise of the functions of NSW Police. Function is defined in cl 1 of Sch 4 of the GIPA Act as including "power, authority and duty". The functions of NSW Police include those set out in s 6 of the Police Act which provides in so far as is presently relevant: 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions - (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section - "police services" includes - (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. …
The functions of NSW Police include the investigation of alleged police misconduct under Part 8A of the Police Act. As Senior Member Lucy stated in Applicants v Commissioner of Police [2015] NSWCATAD 22 at [70]: The Commissioner's functions under Part 8A of the Police Act 1990 include receiving a complaint (s 130(1)), deciding whether to investigate a complaint (s 139), investigating a complaint or causing a complaint to be investigated (s 144) and providing the complainant with advice as to action taken as a result of the complaint (s 150(b)).
As to whether disclosure could "prejudice" the supply of confidential information: 1. "prejudice" bears its ordinary meaning, that is, "to cause detriment or disadvantage " or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]; 2. the test is not whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in future, rather it is whether the agency (NSW Police) will be able to obtain such information in the future from those sources that are available or likely to be available to the agency: McMahon v Director General, Department of Fair Training [2003] NSWADT 164 at [25]; Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 at [45]; 3. in Macquarie University v Howell (No 2) [2009] NSWADTAP 19 at [10] the Appeal Panel said: In our view, the Tribunal is required to engage in a relatively abstract analysis. The Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information.
Also relevant to a determination of whether disclosure could reasonably be expected to have the effect of prejudicing the supply to NSW Police of confidential information that facilitates the effective exercise of its functions where that confidential information is provided by police officers as part of an investigation under Part 8A of the Police Act are the obligations imposed upon police officers under ss 7 and 201 of the Police Act and regulation 8 of the Police Regulation 2015 (NSW).
Those provisions provide: 7 Statement of values of members of NSW Police Force Each member of the NSW Police Force is to act in a manner which-- (a) places integrity above all, (b) upholds the rule of law, (c) preserves the rights and freedoms of individuals, (d) seeks to improve the quality of life by community involvement in policing, (e) strives for citizen and police personal satisfaction, (f) capitalises on the wealth of human resources, (g) makes efficient and economical use of public resources, and (h) ensures that authority is exercised responsibly. 201 Neglect of duty etc A police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence. 8 Performance of duties by police officers (1) Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them. (2) In particular, a police officer is required: (a) to serve wherever the officer is duly directed, and (b) to perform such police duty as may be duly directed, whether or not during the officer's rostered hours of duty.
These obligations are sufficiently broad to include an obligation on officers the subject of the investigation to provide information to those investigating.
In Applicants v Commissioner of Police, Senior Member Lucy said : at [85]: …under s 201 of the Police Act 1990, a police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence. It is also relevant that the Police Act 1990 provides in s 7(a) to (c) that each member of the NSW Police Force is to act in a manner which places integrity above all, upholds the rule of law and preserves the rights and freedoms of individuals. The duty to act in such a manner would require police officers to answer an investigator's questions honestly and not to conceal relevant information. and at [99]: A police officer against whom a complaint of improper or unlawful conduct has been made answers questions knowing that the answers could lead to disciplinary action or criminal proceedings. Such an officer is expected (and required) to answer questions about his or her conduct fully and honestly. In these circumstances, and given the ethical and legal obligations of police officers, it is not reasonable to expect that the prospect of the interview being disclosed under the GIPA Act would restrain the officer's responses about his or her own conduct.
I note that the obligations on police officers to provide information in this context are not absolute and are subject to the operation of the privilege against self-incrimination: see Baff v New South Wales Commissioner of Police (2013) 234 A Crim R 346; [2013] NSWSC 1205.

[9]

Clause 1(e)

Clause 1(e) provides that there is a public interest consideration against disclosure of information if disclosure of that information could reasonably be expected to have the effect (whether in a particular case or generally) of revealing 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.
NSW Police must establish that the withheld information, if disclosed, 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 NSW Police.
The concept of "reasonably be expected" is discussed above.
The word "reveal" is defined in Sch 4 to the GIPA Act as follows: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
The word "disclose" is defined in Sch 4 to the GIPA Act as follows: disclose information includes make information available and release or provide access to information.
As noted in Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 at [172]: In R v Ritson; R v Stacey (2010) NSWDC 160 at [51] - [58] the Court adopted the meaning of "disclosure" for the purposes of the Privacy and Person Information Protection Act 1998 stated by Latham CJ of the High Court in Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at 614-615: ... it is not possible, according to the ordinary use of language, to 'disclose' to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware.
The words "in such a way as to" in cl 1(e) require that there be a connection between the revelation of the deliberation, consultation, opinion, advice or recommendation and the "prejudice" to a "deliberative process" of NSW Police: Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 at [57]; Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 at [103].
As noted above, the word "prejudice" bears its ordinary meaning.
The expression "deliberative process" involves "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 deliberative processes must… be distinguishable from documents dealing with the purely procedural or administrative processes involved in the functions of an agency": Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at [58]-[59], Fire Brigade Employees' Union v Fire and Rescue (NSW) at [58] and Luxford v Department of Education and Communities (NSW) at [104].
In Miskelly v Transport for NSW [2017] NSWCATAD 207 at [72], the Tribunal noted: The 'deliberative process' of an agency has been described as its 'thinking processes ... including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its 'internal thinking': Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133.

[13]

Clause 3(b)

Clause 3(b) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of contravening an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).
One of those information protection principles is s 18 of the PPIP Act , which provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
The expression "personal information" is defined in s 4 of the PPIP Act as follows: Definition of "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 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 that is contained in a publicly available publication, (c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act, (d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth, (e) information about an individual that is contained in a public interest disclosure within the meaning of the Public Interest Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a public interest disclosure, (f) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997, (g) information about an individual arising out of a Royal Commission or Special Commission of Inquiry, (h) information about an individual arising out of a complaint made under Part 8A of the Police Act 1990, (i) information about an individual that is contained in Cabinet information or Executive Council information under the Government Information (Public Access) Act 2009, (j) information or an opinion about an individual's suitability for appointment or employment as a public sector official, (ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000, (k) 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 subsection. (4) For the purposes of this Act, personal information is held by a public sector agency if - (a) the agency is in possession or control of the information, or (b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or (c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998. (5) For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited

[14]

The scope of the applicant's access application

Before considering whether the withheld information should be made available to the applicant, it is necessary to resolve two disputes as to the scope of the access application.
The first dispute is whether there was an agreed narrowing of the scope of the application. As set out above: 1. the access application was made on 3 September 2019; 2. on 9 September 2019, Ms Clark, a customer service representative of Infolink - Policelink Command within NSW Police sent an email to the applicant, confirming that the applicant had agreed to amend the access application to: "Relating to Event 70199257 - the event report and notebook entries, Relating to complaint files 624117- EXT 2019-0388, EXT 2019-2705 - the complaint files" ; 1. the 4 October 2019 letter, which conveyed the original decision, noted that the scope of the access application had been refined by agreement on 9 September 2019; and 2. the applicant's application for internal review did not dispute the statement in the 4 October 2019 letter that that the scope of the access application had been refined by agreement on 9 September 2019.
In his submissions before the Tribunal, the applicant contended that no agreement had been reached to narrow the scope of the access application. The applicant acknowledged that there had been a telephone call, but contended that the "agreement" was "an old fashioned 'police verbal".
I find that there was an agreement reached in the terms of the 9 September 2019 email, for the following reasons: 1. it is recorded in an email apparently sent in the ordinary course of business of that part of the operations of NSW Police which responds to access applications under the GIPA Act; 2. the email address to which it was sent is the email address set out in the applicant's access application dated 3 September 2019 and from which the applicant sent his 17 March 2020 submissions; 3. there is no evidence that the applicant responded to the email, taking issue with its contents; 4. the assertion that such an agreement had been reached was repeated in the 4 October 2019 letter notifying the original decision; and 5. the applicant responded to the 4 October 2019 letter in his application for internal review dated 13 November 2019, and did not dispute the statement in the 4 October 2019 letter that such an agreement had been reached.
Had such an agreement not been reached, it is likely that the applicant would have disputed the assertions made in the 9 September 2019 email and the 4 October 2019 email that there was such an agreement, particularly in view of the detailed nature of his correspondence to NSW Police and his frequent correction of what he perceived to be errors made by NSW Police. It is well established that failing to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected, may amount to an admission, and is at least relevant evidence: see Hintze v Tsering [2018] NSWSC 1190 at [58].
The second dispute arises from the application for review. In the attachment to that application, the applicant stated: DOCUMENTS SOUGHT but refused by police include the uncensored versions of Infolink and associated documents of 2019, with secret photo/video evidence from 2019, and also: E6286627, (D/2016/760640, D/2017/1142. D2017/5947, D/2017/11310,D2017/16510), E70199257, EXT2010-2705, EXT2019-0388, D/2019/693864, E100388792, E597844, D/2017/269634; EDMS/2003/9411; and others relating (emphasis in original)
NSW Police objects to the broader formulation in the application for review on the basis that it is an impermissible attempt to expand the agreed narrowed scope of the access application.
This broader formulation does appear to be an attempt to obtain documents beyond the scope of the access application, both in its original form and as narrowed by agreement. Even the access application in its original, broader, form sought access only to documents relating to the 15 January 2019 collision. Yet, the formulation in the application for review seeks documents apparently relating to other events - for example, from the attachment to the applicant's submissions it appears that E597844 relates to a malicious prosecution, D/2017/269634 relates to an assault and E100388792 relates to a car crash.
The Tribunal's jurisdiction is limited to reviewing the decision for which review has been sought. That decision was a decision on the access application (as refined). It is impermissible for the applicant to introduce requests for documents outside of the access application in its application for review.
Accordingly, I proceed on the basis that the access application is an application in the terms set out in the 9 September 2019 email.

[21]

Clause 3

NSW Police has submitted that: 1. the information redacted is personal information of the other cyclist; 2. "personal information" for the purposes of cl 3(a) includes information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion; 3. the present case is factually similar to APD v Commissioner of Police, NSW Police Force [2012] NSWADT 42, in which the Tribunal had regard to the evidence of a Detective Senior Constable that the usual practice of police was to conduct interviews and record personal details which are kept confidential; 4. s 18 of the PPIP Act prevents disclosure of personal information to a person or body other than the person to whom the information relates, and the other cyclist's personal information does not fall within any of the disclosures permitted by s 18(1)(a)-(c); 5. the applicant is using the GIPA Act as an improper vehicle by which to obtain the personal information of the other cyclist to initiate civil proceedings; and 6. the applicant having access to the personal information of the other cyclist would not contribute in any substantial way to enhancing government accountability (citing s 3(1) of the GIPA Act and APD at [43]).
It may be seen that the submissions of NSW Police were expressed in general and conclusionary terms. They did not identify a link between the text of the clauses relied upon and evidence from which it might be concluded that such text was engaged. In particular, they did not indicate the evidentiary basis from which it might be concluded that disclosure could reasonably be expected to have the effects described in the clauses relied upon.
The evidence necessary to show that the text of a clause has been engaged may be provided in several ways. One method is evidence adduced from relevant officers of NSW Police. No such evidence was adduced.
Another method is identification of evidence within the documents before the Tribunal which allows the Tribunal to draw a conclusion that the words of the clauses have been engaged. The NSW Police submissions did not identify the evidence before the Tribunal from NSW Police contended such conclusions might be drawn. I have nevertheless reviewed the materials before the Tribunal for that purpose (see Fraser v Safework NSW [2020] NSWCATAP 92 at [36]).
The NSW Police submissions do contain several references to the views of the internal review officer that disclosure would have particular effects. Such views are insufficient. As the Appeal Panel noted in Transport for NSW v Searle at [68(4)]: It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53].

[28]

Disclosure of information that could reasonably be expected to reveal that an agency or a member of an agency has engaged in misconduct

A further potential consideration in favour of the disclosure of information is where such disclosure 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.
The applicant has made repeated assertions of wrongful and corrupt conduct on the part of various officers. He has also indicated that he wishes to obtain access to the withheld information for the purpose of pursuing criminal action against NSW Police. His review application includes the statement: "Information has been withheld by NSW Police to conceal evidence of serious misconduct, serious maladministration, using false instruments to pervert the course of justice, corrupt conduct, insurance fraud, reckless wounding and reckless GBH, inter alia".
However, a finding that such a public interest consideration exists does not arise simply through assertion. As noted above, there must be an evidentiary basis for it. Further, in Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68, the Appeal Panel held at [136]-[137]: It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that 'disclosure … 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.' As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal's reasons to indicate that it had any material that 'could reasonably be expected to reveal' the types of improper conduct to which the above formulation refers.
I have considered all of the materials placed before the Tribunal. Having done so, I am not satisfied that there is evidence sufficient to support a conclusion that disclosure could reasonably be expected to reveal or substantiate misconduct or negligent, improper or unlawful conduct. Accordingly, I do not take this public interest consideration into account.

[34]

First redaction

The first area of redaction, on page 1 of the form, has been redacted in reliance upon cll 1(f) and (h). As is apparent from the redacted version released to the applicant, the redacted information is adjacent to the words "Recommendation" and "Reason for decision".
As to the information adjacent to "Recommendation", I am not satisfied that the disclosure of this information could reasonably be expected to have the effect of: 1. prejudicing the effective exercise by NSW Police of its functions (cl 1(f)); or 2. prejudicing the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (cl 1 (h)), 1. because the information has already been disclosed to the applicant in the documents provided to him by NSW Police: see Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) cited above.
[NOT FOR PUBLICATION]
There is also no evidence before the Tribunal from which it might be concluded that disclosure of this information could reasonably be expected to have either of those effects.
The reliance by NSW Police upon Jenkinson v Department of Education and Communities in support of cl 1(f) is misplaced - in that case the submission was supported by evidence.
As noted above, one of the submissions of NSW Police in support of its reliance upon cl 1(h) is that Part 8A of the Police Act (including s 170) applies. I accept that the form relates to an investigation under Part 8A. However, that of itself is insufficient to prove that the investigation would be prejudiced by disclosure, in circumstances where there is no evidence from which it might be concluded that such prejudice could reasonably be expected (including an absence of evidence capable of overcoming the prima facie position derived from the Police Act and the Police Regulation that officers are obliged to cooperate with investigations). I note also that s 170 concerns admissibility of evidence, which is an issue unrelated to the issues at hand.
It follows that there are no public interest considerations against disclosure of this information and as such there can be no overriding public interest against disclosure, and the information adjacent to "Recommendation" should be disclosed to the applicant.
I turn next to the information adjacent to "Reason for decision":
I am satisfied that disclosure of the redacted information could reasonably be expected to reveal a reason for the decision reached following an investigation or review.
As to cl 1(f), I am not satisfied that such disclosure could reasonably be expected to prejudice the effective exercise by NSW Police of its functions. Again, there is an absence of evidence from which such a conclusion might be drawn.
As to cl 1(h), I do not accept that such disclosure of this information could reasonably be expected to disclose the purpose of the investigation or the manner in which it was conducted. I am also not satisfied that such disclosure could reasonably be expected have the effect of prejudicing the conduct, effectiveness or integrity of any investigation or conducted by or on behalf of an agency by revealing its purpose or conduct or results. There is no evidence before the Tribunal from which such a conclusion could be drawn.
Further, in so far as the reasonable expectation of prejudice may be said to arise from an anticipated lack of cooperation of NSW Police officers, there is no evidence which displaces the prima facie position derived from the Police Act and the Police Regulation that such officers are duty bound to cooperate.
Thus, I am not satisfied that either cl 1(f) or (h) applies. It follows that there are no public interest considerations against disclosure and there is no overriding public interest against disclosure.
The redacted information next to "Reasons for decision" should be disclosed to the applicant.

[37]

Fourth redaction

The fourth area of redaction, on pages 3 and 4 of the form and under the heading "Triage Comment", has been redacted on the bases of cll 1(e), (f) and (h).
As to cl 1(e), I am satisfied that disclosure of the redacted information could reasonably be expected to have the effect of revealing a deliberation, opinion, advice or recommendation. However, I am not satisfied that such disclosure could reasonably be expected to prejudice a deliberative process of NSW Police. Again, there is no evidence before the Tribunal from which such a conclusion can be drawn. Further, s 170 of the Police Act does not assist NSW Police for the reasons earlier outlined.
As to cl 1(f), I am not satisfied that disclosure of the redacted information could reasonably be expected to have the effect of prejudicing the effective exercise by NSW Police of its functions. Again, there is no evidence before the Tribunal from which such a conclusion can be drawn.
As to cl 1(h), I am satisfied that disclosure of the redacted information could reasonably be expected to reveal aspects of the conduct of an investigation. However, I am not satisfied that such disclosure could reasonably be expected to prejudice the conduct, effectiveness or integrity of any investigation conducted by or on behalf of NSW Police. There is no evidence before the Tribunal from which such a conclusion could be drawn. The submission based upon Part 8A of the Police Act does not assist NSW Police for the reasons set out above.
Further, some of the redacted information has already been provided to the applicant by NSW Police.
[NOT FOR PUBLICATION]
Thus, I am not satisfied that any of the considerations against disclosure relied upon by NSW Police in connection with the fourth area of redaction have been made out. It follows that there is no overriding interest against disclosure and that this information should be released to the applicant.
It follows that Triage Form EXT- 2705 should be released in its entirety to the applicant.

[50]

COPS Profile of the other rider (InfoLink page 49)

The redaction to this document has been made in reliance upon cll 1(d), (e) and (f) and 3 (a).
I am not satisfied that cl 1(d) operates. In particular, there is no evidence of the circumstances in which the redacted information was obtained and in particular from whom it was obtained. There is also no evidence from which it could be concluded that disclosure could reasonably be expected to have the effect of prejudicing the supply to NSW Police of confidential information that facilitates the effective exercise of its functions.
I am also not satisfied that cl 1(e) operates. With one exception, it is not apparent to me that disclosure of the redacted information could reasonably be expected to reveal a deliberation, consultation, opinion, advice or recommendation.
[NOT FOR PUBLICATION]
With respect to this text I am satisfied that its disclosure could reasonably be expected to reveal an opinion, advice or recommendation.
However, I am not satisfied that disclosure of any of the redated information could reasonably be expected to prejudice a deliberative process of NSW Police. Again, there is no evidence before the Tribunal to support such a conclusion. Further, s 170 of the Police Act does not assist NSW Police for the reasons earlier outlined.
As to cl 1(f), I am not satisfied that disclosure of the redacted information could reasonably be expected to have the effect of prejudicing the effective exercise by NSW Police of its functions. Again, there is no evidence before the Tribunal to support such a conclusion.
As to cl 3(a), I am satisfied from the redacted information that it is information is information which if disclosed could reasonably be expected to reveal an individual's personal information.
I am also satisfied that disclosure of that information could reasonably be expected to have the effect of contravening the information protection principle in s 18 of the PPIP Act and thus that cl 3(b) also operates as a public interest consideration against disclosure of the redacted material.
Thus the considerations against disclosure are cll 3(a) and 3(b).
The considerations in favour of disclosure relevant to this information are the general public interest in favour of disclosure and the personal factors of the application. In my view, the considerations against disclosure significantly outweigh those in favour of disclosure.
Thus, I am satisfied that there is an overriding public interest against disclosure of this information and it should not be disclosed to the applicant.

Page v Commissioner of Police

At a glance

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Decision date

Source

Judgment (53 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (27)

Cited By (11)