Peacock v Commissioner of Police, NSW Police Force

The Relevant Statutory Provisions

1. The respondent's decision to release only a redacted version of the documents is a reviewable decision within s 80(d) of the GIPA Act.
2. The respondent bears the burden of establishing that its decision is justified: GIPA Act, s 105(1). The task of the Tribunal is to decide what is the correct and preferable decision and, in doing so, it may exercise all of the functions conferred or imposed by any relevant legislation on the administrator who made the decision on behalf of the respondent: Administrative Decisions Review Act 1997 (NSW) s 63.
3. The objects of the GIPA Act are set out in s 3: 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.
4. Pursuant to s 5 of the GIPA Act, there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Pursuant to s 9(1) of the GIPA Act a person making an application has a legally enforceable right to be provided with access to the information sought unless there is an overriding public interest against disclosure of the information. Pursuant to s 13 of the GIPA Act: 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. Section 12 of the GIPA Act provides: (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.
6. Schedule 1 to the GIPA Act identifies information in respect of which there is conclusively presumed to be an overriding public interest against disclosure. It is not suggested by the respondent that any provision of Schedule 1 is applicable in this case.
7. The only other public interest considerations against disclosure which may be taken into account are those set out in the table to section 14 of the GIPA Act.
8. The respondent referred to six of the public interest considerations included in the table to section 14 of the GIPA Act as justifying his decision to redact information from the documents. These were: (a) disclosure of the information could reasonably be expected to have the effect of revealing a person's personal information (clause 3(a) in the Table to s14); (b) disclosure of the information could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory(clause 3(e)); (c) disclosure of the information could reasonably be expected to result in the disclosure of information about children mentioned in the documents that it would not be in the best interests of the child to have disclosed;(clause 3(g)) (d) disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (clause 1(d)); and (e) disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions (clause 1(f)). (f) disclosure of the information could reasonably be expected to result in the disclosure of information provided to an agency in confidence (clause 1(g)
9. Each of the public interest considerations against disclosure referred to includes the requirement that the disclosure "could reasonably be expected to" have the nominated effect. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 a Judicial Member of the Administrative Decisions Tribunal stated (at [56] to [58]): "56. …The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words - "... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like." 58. It is necessary for Council to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect."
10. Section 55 of the GIPA Act 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.

The Evidence and Submissions of the Parties

1. The respondent tendered a bundle of documents. Tabs 1 to 6 of that bundle were not confidential and became Exhibit 1. Tab 7 of the respondent's bundle was the unredacted version of the documents the subject of the application. These documents were received on a confidential basis as Confidential Exhibit 2. The respondent also relied upon a statement of Chief Inspector Matthew McCarthy dated 4 September 2018 which became Exhibit 3. Chief Inspector McCarthy gave evidence concerning, among other things, the Computerised Operational Policing System (COPS) and the manner in which information concerning events (including the reporting of information to the Police) is stored on that system and able to be retrieved by searching that system. Chief Inspector McCarthy also gave evidence concerning the confidentiality of information received by the Police.
2. Ms Peacock provided a bundle of documents which became Exhibit 4.
3. Ms Kavanagh, solicitor, who appeared for the respondent, provided written submissions and submissions in reply, which had been provided to Ms Peacock, as well as a confidential submission which was not provided to Ms Peacock and which the Tribunal received on a confidential basis.
4. In the course of the hearing I asked Ms Peacock and her husband, who was assisting her, to leave the hearing room while Ms Kavanagh addressed the confidential submission. In the course of those submissions it became apparent that there was further information falling within the terms of Ms Peacock's request, namely a video recording of a Police interview with Ms Peacock's daughter, which had not been identified by the Police. Ms Kavanagh obtained instructions to disclose the existence of the video to Ms Peacock. Ms Kavanagh accepted that the video constituted government information which was, subject to the public interest test, potentially subject to disclosure under the GIPA Act. Nevertheless, Ms Kavanagh submitted that there was an overriding public interest against disclosure of the video for the same reasons as were applicable to the redacted parts of the documents previously identified.
5. Ms Kavanagh also referred to the provisions of Part 4B of the Criminal Procedure Act 1986 (NSW) which relates to the giving of evidence by domestic violence complainants and in particular to the use of recorded statements made by domestic violence complainants. Section 289P provides: 289P Improper copying or dissemination of recorded statement (1) A person who has possession of a recorded statement must not copy, or permit a person to copy, the recorded statement, give possession of the recorded statement to another person or publish the recorded statement, except: (a) for the legitimate purposes of a criminal investigation or criminal proceedings, or (b) if the person is a public official, in the proper exercise of the person's public official functions (including any functions relating to education or training). Maximum penalty: 100 penalty units, or 2 years imprisonment, or both. (2) This section does not permit any person, including an Australian legal practitioner who represents an accused person, to give possession of a video copy of a recorded statement to the accused person or to permit the accused person to copy or obtain a copy of a recorded statement. (3) In this section, a reference to a recorded statement includes a reference to any copy of a recorded statement made for the purposes of the proceedings. (4) An offence under this section is to be dealt with summarily. (5) In this section: public official has the same meaning as in the Independent Commission Against Corruption Act 1988. publish means disseminate or provide access to one or more persons by means of the internet, radio, television or other media.
6. "Recorded statement" is defined in s 289D as follows: "a recording made by a Police officer of a representation made by a complainant when the complainant is questioned by a Police officer in connection with the investigation of the commission of a domestic violence offence; (a) the recording is made with the informed consent of the complainant, and (b) the questioning occurs as soon as practicable after the commission of the offence."
7. Ms Kavanagh submitted that because the recording was a recorded statement for the purposes of Part 4B, the public interest consideration set out in clause 6 of the table to Section 14 of the GIPA Act was applicable. That public interest consideration is as follows: (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
8. Ms Peacock made it plain in the course of her address to the Tribunal that her concern in bringing her application was not to obtain an unredacted copy of the documents (she stated that she already knew what was in them).
9. Ms Peacock stated that her objective was to establish that a named police officer had lied to her when he had told her (as she alleged) that there was no information on the database concerning her daughter. When informed by the Tribunal that that was not the purpose of the hearing and that the Tribunal had no jurisdiction to investigate that issue, Ms Peacock at one stage indicated she saw no point in continuing with her application. However, ultimately, Ms Peacock stated that she wished to be heard and did not wish to withdraw her application.
10. Ms Peacock did not make any further submissions in support of her application for access to the information.

Consideration

1. I will consider whether each of the public interest considerations relied upon by the respondent arises in this case before turning to consider whether there is an overriding public interest against disclosure.

Revealing individual's personal information - Clause 3(a)

1. "Personal information" is defined in cl. 4(1) of Sch. 4 to the GIPA Act as information or an opinion about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. Personal information does not include information about an individual who has been dead for more than 30 years: cl 4(3)(a) of Sch. 4 to the GIPA Act.
2. The personal particulars of individuals identified in the documents (such as name, or address, or other contact details) would clearly fall within the definition of personal information. The respondent submits that simply "de-identifying" the documents by redacting the names and contact details of those individuals would not be sufficient to ensure that personal information is not revealed by disclosing the documents, having regard to the broad definition of personal information in the GIPA Act.
3. The respondent referred to CCB v Department of Education and Communities [2015] NSWCATAD 145 ("CCB"). In that case the applicant sought access to information relating to incidents which happened at her young son's school. The respondent claimed that the son injured a support teacher at school during the incidents, after which two workplace health and safety (WHS) reports were lodged by the support teacher. The respondent submitted that all the information in the WHS reports was the personal information of the support teacher. The mother submitted that portions of the reports could be released (eg, a description of events, including the actions of her son) without revealing the support teacher's personal information, and that some of the information had been disclosed in subsequent correspondence from the school in any event.
4. The Tribunal in CCB accepted that the whole of the WHS reports written by the support teacher contained her personal information because "the information the support teacher chose to include on the form is information about her": at [97].
5. The Tribunal also noted that the applicant knew the identity of the support teacher, and knew that the support teacher was involved in the incidents. Accordingly, the Tribunal found that even disclosing reports with identifying information redacted would disclose personal information of the teacher as "the support teacher's identity could reasonably be ascertained from the de-identified information, with reference to the extraneous information. This means it would retain its character of 'personal information'": [98].
6. The respondent has accepted that there is not an overriding public interest against disclosure of the personal information of Ms Peacock's daughter and has disclosed the documents to the extent they only disclose such information. I have reviewed the redacted portion of the documents and have confirmed that the parts redacted constitute information properly characterised as personal information of persons other than Ms Peacock's daughter.
7. I accept the respondent's submissions that Ms Peacock's knowledge (which she acknowledged at the hearing, when she stated that she knew what was in the documents) of the incidents the subject of the documents, means that the identity of the individuals identified in the documents could reasonably be ascertained, even if their names and contact details were redacted.
8. I also accept the respondent's submission that the nature of the personal information and the circumstances in which it was recorded and created means that the public interest against disclosure should be given considerable weight. The personal details were recorded by Police officers in the course of exercising their functions, and include the details of people who have supplied information to police as a witness, and people who have been investigated in relation to suspected criminal activities.
9. I further note that the individuals identified in the documents have not been consulted (at Ms Peacock's request) and so have not given their consent to their personal information being disclosed to the applicant.

Reveal false or unsubstantiated allegations about a person that are defamatory - cl. 3(e)

1. The redacted portions of the documents contain allegations of criminal conduct against multiple individuals and a record of the steps taken by police to investigate those allegations. They contain statements about individuals made by third party witnesses, victims and Police officers.
2. Chief Inspector McKenzie gave evidence that none of the allegations contained in the documents resulted in charges being brought against the individuals concerned, and that none of the incidents went to court. I accept the respondent's submissions that disclosing the information contained in the documents could reasonably be expected to reveal unsubstantiated allegations about a person that are defamatory. While this consideration does not apply to unsubstantiated allegations made about Ms Peacock's daughter, it does apply to the other individuals identified in the documents in relation to whom allegations are made, and could also extend to negative comments about individuals made in the documents by Police officers.

Best interests of children - cl. 3(g)

1. The documents contain information about named children. I accept the respondent's submission that it would not be in the best interests of those children for the information about them to be disclosed. There is no evidence before the Tribunal that the guardian of those children has given consent for the information to be disclosed.

Disclosure of information provided to an agency in confidence - cl. 1(g)

1. The fact that information contained in the documents was obtained in confidence may be inferred from the circumstances in which it was obtained. There is no need to establish an express stipulation of confidentiality; evidence of a mutual understanding that information of a particular kind would be kept confidential is sufficient: Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 at [44].
2. In this case, the information obtained by police and recorded in the documents was provided to police as part of the recording, and subsequent investigation, of reported incidents. Chief Inspector McCarthy gave evidence that it is ordinary police practice to keep confidential all information obtained during an investigation, unless and until the matter proceeds to court. The reason for this is that police rely on members of the public coming forward with information about incidents of alleged crime. Chief Inspector McCarthy annexed to his statement a copy of the NSW Police Force Customer Service Charter, which discloses that "maintaining confidentiality" is a service commitment of the NSW Police Force.
3. I accept that the circumstances in which the information recorded in the documents was provided to police are sufficient to imply an obligation of confidence.
4. It follows that the disclosure of the redacted information could reasonably be expected to disclose information provided to the agency (ie the police) in confidence.

Prejudice the supply of confidential information - cl. 1(d); Prejudice the effective exercise by the agency of the agency's functions - cl. 1(f)

1. The respondent submitted: Supply of information in these circumstances facilitates the effective exercise of the respondent's functions. When a member of the public reports an alleged offence to the NSW Police Force, police officers gather information from victims and witnesses in order to determine whether an offence has been committed and what action, if any, to take. Police officers typically interview witnesses and keep notes of investigative activities, including records of the names and contact details of victims and witnesses. [citing the evidence of Chief Inspector McCarthy] Here, the victims and third party witnesses provided their personal details and information about the alleged incidents to police to assist the police with their investigation of those incidents. Without such information, the NSW Police Force could not exercise its principal function of providing policing services and preventing and detecting crime: Police Act 1990, s. 6. Disclosure of information provided in these circumstances could reasonably be expected to prejudice the supply of such information in the future. The relevant question is not whether the confider of the information in question would in future refuse to supply information to the agency. Rather, it is whether disclosure of the information could reasonably prejudice the future supply of the type of information from those sources that are available or likely to be available to the agency, as the GIPA Act requires consideration of the effect of disclosure "in a particular case or generally": cl. 1 to the table in s. 14.
2. I accept the respondent's submission that, if it disclosed the personal information of people who report alleged offences or provide information that assists in the investigation of an alleged offence, the flow of information from the community to police would be affected and this would prejudice the ability of the NSW Police Force to fulfil its functions.

Contravention of a provision of another Act prohibiting disclosure - clause 6

1. I accept Ms Kavanagh's submission that, if the video recording constitutes a "recorded statement" within s 289D of the Criminal Procedure Act, the public interest against disclosure listed in clause 6 of the table to s 14 of the GIPA Act would arise. I do not consider that it is clear without question from the evidence before me that the video statement would have constituted a recorded statement for the purposes of s 289D. I will not address the reasons why I consider that question to remain open. Because I consider that the other public interest considerations, taken without reference to clause 6, outweigh any public interest in disclosure of the video recording I do not consider it necessary or desirable to make a finding in that respect.

Conclusion

1. I am satisfied that there is a compelling public interest against disclosure of the redacted information. The most significant element of that public interest is that disclosure would reveal personal information of persons who have not been consulted about the disclosure of that information and who have not consented to such disclosure. Nevertheless, I also accept that the other public interest considerations relied upon by the respondent are applicable and have weight.
2. I find that the public interest considerations in favour of disclosure are of little weight. Ms Peacock has acknowledged that she seeks disclosure not in order to identify what is within the documents but for the unrelated purpose of progressing a complaint or investigation of the conduct of a Police officer who she alleges told her there were no documents held by the Police.
3. In my view the disclosure of the redacted parts of the document cannot conceivably assist Ms Peacock in this endeavour. Section 55 of the GIPA Act permits me to take into account, in determining whether there is an overriding public interest against disclosure, the personal factors of the application, which include the applicant's motives for making the access application.
4. Accordingly, I find that the public interest against the disclosure of the redacted information (and the video) outweighs any public interest in favour of disclosure and that there is an overriding public interest against disclosure of the redacted information.
5. My order will be that the decision of the respondent Commissioner is affirmed.

Order 1. The decision of the Commissioner 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: 16 January 2019