Pemberton v Commissioner of Police, NSW Police Force

NCAT Appeal Panel|2021-08-02

Introduction

The appellant James Pemberton (Mr Pemberton) appeals a decision of the Tribunal, made on 21 May 2020, that affirmed the decision of the respondent, the Commissioner of Police, NSW Police Service (Commissioner or NSW Police Service), to refuse him access to the following government information (information) for which he had sought access under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act): 1. A written response by Mr B… (IAU Ref 1205); and 2. A written response by Ms H… (IAU Ref 1205)
Mr Pemberton's application for administrative review was determined by the Tribunal on the papers, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Hence, on 21 May 2020, the Tribunal published its written reasons for decision (Decision).
Section 80(2)(b) of the NCAT Act gives Mr Pemberton a right of appeal from the decision of the Tribunal to the Appeal Panel, on any question of law, or with the leave of the Appeal Panel, on any other ground.
In this appeal, the onus is on Mr Pemberton to establish that the Tribunal erred in law in its Decision, or the Tribunal otherwise erred in its Decision and the error, if established, warrants a grant of leave to appeal the Decision of the Tribunal.
We have considered the material filed and served by Mr Pemberton and the Commissioner in regard to Mr Pemberton's substantive appeal from the Decision of the Tribunal. Having viewed the material filed, and in the absence of any objection by Mr Pemberton or the Commissioner, we are satisfied that the issues for determination in Mr Pemberton's appeal can be dealt with in the absence of a hearing under s 50(2) of the NCAT Act and we make an order accordingly.
For the reasons set out below, we find that Mr Pemberton has failed to establish any of his grounds of appeal. That is, we are not satisfied that he has identified a question of law arising from the Tribunal's Decision or that the Tribunal erred in making the findings it made. In this regard we are not satisfied that Mr Pemberton has established that the Tribunal ignored, misunderstood or misinterpreted his evidence and submissions (including his confidential evidence and submissions), or incorrectly approached its decision making task on administrative review. That is, we are not satisfied that Mr Pemberton has established that the Tribunal erred in the findings it made.

Background

On 14 September 2017, Mr Pemberton made a GIPA Act access application to the Commissioner seeking access to the information relating to the investigation, by the Professional Standards Command (PSC), into the misconduct allegations he had made, in 2012, against a number of fellow employees, including Mr B and Ms H. The misconduct allegations made by Mr Pemberton included an allegation that the members of the Policelink Unit, of which he was a member, were unlawfully recording Crime Stopper calls.
In February 2016, Mr Pemberton was informed that none of the allegations he had made were substantiated.
As we have already noted, Mr Pemberton made his GIPA Act access application in 2017. In November 2017, at the request of the Commissioner, Mr Pemberton reduced the scope of his access application to the information in two "Unsworn Investigation" Reports relating to the allegations he had made against two fellow employees, Mr B and Ms H.
On 28 December 2017, the Commissioner gave Mr Pemberton notice of his determination in regard to his access application. In that decision, the Commissioner identified the documents he held containing information falling within Mr Pemberton's revised access application. The Commissioner also identified whether he had decided to grant, or refuse to grant Mr Pemberton access to the information in the documents sought. Included in the information for which the Commissioner refused to grant access was the information contained in the two responses the subject of the Decision.
The Commissioner refused to grant access to the information contained in the two subject responses on the grounds that, on balance, the public interest considerations against disclosure of the information out weighed the public interest considerations in favour of disclosure: GIPA Act, s 13. The public interest considerations against disclosure relied on by the Commissioner were those set out in cl 1(d), 1(f) 1(g) and 1(h) of the Table in s 14 of the GIPA Act
The Commissioner affirmed his decision on internal review. Mr Pemberton then sought review by the Information and Privacy Commission (IPC). On 12 June 2018 the IPC issued its decision, which was to recommend that the Commissioner make a new decision as the IPC was not satisfied that the Commissioner's decision was justified.
On 27 June 2018, the Commissioner informed Mr Pemberton that he had decided not to accept the IPC recommendation.
Mr Pemberton then lodged his application with the Tribunal on 9 July 2018. During the course of the proceedings before the Tribunal, the Commissioner released some additional information for which Mr Pemberton had sought access, with the result that the only information for which Mr Pemberton continued to seek access was the information contained in the subject responses.
In the proceedings before the Tribunal the Commissioner's position did not change in that he continued to contend that the public interest considerations against disclosure of the information, on balance, out weighed the public interest considerations in favour of disclosure. However, in addition to the public interest considerations against disclosure relied on previously, the Commissioner also relied on cll 1(e), 3(a) and 3(b) of the Table in s 14(2) of the GIPA Act.
After considering the relevant law, the evidence and submissions before it, at [89] to [93] of its Decision, the Tribunal summarised its findings as follows: 1. a disclosure the information would reveal the personal information of the subject officer that was sensitive in nature and also breach an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) (cll 3(a) and (b)); 2. a disclosure of the information would disclose information provided in confidence (cl 1(g)); 3. a disclosure of the confidential information could reasonably be expected to prejudice the effective performance of the Commissioner's function in relation to the investigation of its staff and the maintaining of the integrity of the police force (cll 1(d) and 1(f)); 4. the factors in favour of disclosure were: 1. the general public interest in favour of disclosure (s 12(1) of the GIPA Act); 2. informing the public about the policies and practices of Crime Stoppers; and 3. the applicant having access to his own personal information; and 1. in conducting the balancing exercise: 93 … [I] find that the public interest factors against disclosure of the information outweigh the public interests in favour of disclosure. In my view the public interest considerations in favour of disclosure are less substantial than the public interest considerations against disclosure. This is primarily because the information was provided in the context of responding to allegations of misconduct and there is a strong public interest in public employees being able to respond to such allegations frankly and fully so that investigations are not hampered by lack of relevant information.
We have dealt with the Tribunal's Decision in more detail below.

Notice of Appeal

In his introductory paragraphs under the heading "Grounds of Appeal", Mr Pemberton said that he had applied under s 12(e) of the GIPA Act so that he could be provided with the information concerning the investigation of the 2012 allegations he had made. He went on to assert that the information sought could reasonably be expected to reveal that an agency (that is, the Commissioner) or a member of an agency (that is, the officers Mr Pemberton had complained about) had engaged in misconduct.
In regard to the Decision, Mr Pemberton contend that: 1. the Tribunal "ignored significant evidence not only of misconduct in the substantive matter but also of the respondent purposefully providing false and misleading information to the Tribunal"; 2. the Tribunal did not understand his submissions and misinterpreted his submission/evidence to provide an incorrect [decision] when it decided to affirm the decision under review; 3. contrary to s 12 of the GIPA Act, the Tribunal took it upon itself to determine that no misconduct occurred and therefore the information should not be released, when all that was required was for the Tribunal to decide whether a disclosure of the information could reasonably be expected to reveal or substantiate misconduct; and 4. at [80] the Tribunal noted that the information sought did contain his personal information, but did not provide any reasoning for declining to provide him with the information.
Mr Pemberton gave a number of examples of findings of the Tribunal that he asserted to have been made on the basis of "wrongfully ignored evidence" which included: 1. at [10] of the decision, where the Tribunal said that his GIPA application was directed at obtaining an explanation as to why his allegations had been found not to be substantiated, when it was clear that he wanted "to substantiate misconduct by the respondent"; 2. at [70(4)] of the decision, where the Tribunal said it was difficult to follow his submissions concerning alleged maladministration by the Officer in Charge of investigating his complaints in that the Officer had altered the terms of reference of his complaint; 3. in regard to the recording of Crime Stopper calls: 1. at [73] of the decision, where the Tribunal said that there was some documentary evidence tendered by him that the recordings occurred for training and management purposes as there were significant concerns about the operator's performance; and 2. at [75] of the decision, where the Tribunal said it did not consider that the information in the documents sought revealed any misconduct; 1. at [76] of the decision, where the Tribunal said that he did not point to sufficient evidence to find that the NSW Police Force corruptly attempted to dismiss the allegations he had made; and 2. at [77], where the Tribunal said it was unclear why the information in the subject response to the investigation (i.e. the information in issue) should reveal anything about his subsequent complaint concerning inappropriate Twitter posts; 3. at [78], where the Tribunal said that it was not apparent that a disclosure of the responses would reveal anything relevant to an allegation that the terms of reference of the investigation into his allegations were altered; and 4. at [79], where the Tribunal said it was not satisfied that a "disclosure would reveal evidence" of misconduct.

Reply to Appeal

The Commissioner's response to the appeal is as follows.
First, the Tribunal's decision was made on a correct application of the GIPA Act. In particular, the Commissioner submits that the Tribunal considered Mr Pemberton's evidence and submissions when determining whether disclosure of the information in the two documents would engage the application of a public interest consideration in favour of disclosure, namely, whether it "could reasonably be expected to reveal or substantiate misconduct".
Secondly, Mr Pemberton has not identified any error of law.
Thirdly, to the extent that the appeal is made on the basis that the Tribunal misinterpreted facts or made findings that lack an evidential foundation, the Commissioner submits that Mr Pemberton has not identified a finding of fact which, if incorrect, would materially change the outcome of the decision.
Fourthly, the Tribunal's reasons demonstrate that its decision was based on the available evidence and open to the Tribunal on that evidence.
The Commissioner submits that leave to appeal should be refused for two principal reasons: 1. the matters alleged by Mr Pemberton are not material to the outcome. 2. there being no substantial miscarriage of justice or any other issue of principle on which to grant leave, leave should be refused.

Materials relied on by the parties in the appeal

In compliance with the orders made by the Appeal Panel, on 24 September 2020, Mr Pemberton filed and served the material on which he relied in his appeal. This included: 1. the open material (submissions and affidavits) he and the Commissioner had provided to the Tribunal; 2. the confidential material (submissions and affidavits) he had provided to the Tribunal and for which the Tribunal had made a non-publication order under s 64(1) of the NCAT Act; and 3. his confidential submissions, dated 24 September 2020, filed in this appeal.
We have made some observations on Mr Pemberton's confidential material below.
On 12 November 2020, the Commissioner filed and served his written submissions.
The Commissioner also provided the Appeal Panel, in confidence, with a copy of the information the subject of administrative review by the Tribunal.
On 28 May 2021, following our decision to refuse Mr Pemberton's application for production of documents (see Pemberton v Commissioner of Police [2021] NSWCATAP 93), Mr Pemberton filed and served a further nine documents which included: 1. an affidavit he swore on 27 May 2021, 2. copies of a number of Professional Standards Command and PSC CMT Assessment Minutes and Sheets dated between 2012 and 2015. We understand these were also provided to the Tribunal below; 3. an email sent by the Commissioner to Mr Pemberton, on 29 August 2016, asking him to further refine his GIPA access application; 4. a copy of a hand written diary entry made into a NSW Police note book on 3 October 2010; 5. a copy of four PSC internal investigation reports relating to the 2012 allegations Mr Pemberton had made against four employees. We note that these were provided to Mr Pemberton under the GIPA Act and contain a number of redactions on the grounds that there is an overriding public interest against the disclosure of that information. With the exception of a section of one of these reports, these do not appear to have been provided to the Tribunal; and 6. written submissions.
The Commissioner did not seek to respond to this material any further.

Nature of an appeal

As we have already noted, s 80(2)(b) of the NCAT Act provides that an appeal can be made to the Appeal Panel from a decision of the Tribunal: 1. as of right on a question of law; or 2. with the leave of the Appeal Panel on any other ground.

A question of law

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These included: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (that is mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration, 7. whether there was no evidence to support a finding of fact; 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
Mr Pemberton is not legally represented and has not specifically identified a question of law in his Notice of Appeal or in the submissions he has filed. However, as we have already noted, Mr Pemberton does challenge the factual findings of the Tribunal on the basis that it ignored, misunderstood or misinterpreted the evidence and submissions he had provided.
For the reasons set out below, we are not satisfied that these challenges raise a question of law in this case.

Leave to appeal

In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel noted that the requirement for leave to appeal signals that an appellant must demonstrate a sound basis for that grant. At [84], the Appeal Panel the gave the following summary of the general principles derived from the case law as to (citations omitted) 84. The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing.

Open submissions

As we have noted above, in his Notice of Appeal, Mr Pemberton contended that the Tribunal erred: 1. when it said, at [10] that his GIPA application "is directed at obtaining" an "explanation" of why his allegations were found not to be substantiated; and 2. in failing to provide any reasoning why it declined to provide him with the information that the Tribunal found to be his personal information.
We have identified these as grounds of appeal as Ground 1 and Ground 3 respectively.
However, the recurrent theme in his Notice of Appeal and his subsequent open submissions is Mr Pemberton's contention that the Tribunal erred in ignoring, misunderstanding or misinterpreting his significant evidence and submissions (including his confidential evidence and submissions) in that: 1. Inspector Ponte, on behalf of the Commissioner, had purposely given false and misleading information to the Tribunal in that he said: 1. the PSC never provides investigation reports or any investigative materials to the police employees that are the subject of an unsubstantiated complaint or the complainants (at [23] of his affidavit affirmed on 7 November 2018); and 2. there was no misconduct; in order to ensure that he would not be granted access to the information in the subject responses; and 1. a disclosure of the information in the subject responses would/could reveal or substantiate his allegation about the unlawful recording of Crime Stopper calls and other allegations he had made, including an allegation of corruption by the investigating officer of his complaint: the Decision at [70]-[79].
We have identified this ground of appeal as Ground 2.

Confidential submissions

We note that in the course of the proceedings before the Tribunal, the Commissioner objected to the Tribunal accepting Mr Pemberton's confidential evidence and submissions. The Commissioner has not made a similar objection in this appeal. However, in his written submissions the Commissioner did apprehend that, included in the confidential material Mr Pemberton provided to the Appeal Panel is material that was not before the Tribunal at first instance.
The confidential submissions, dated 24 September 2020, is the only confidential material Mr Pemberton has provided to the Appeal Panel that was not before the Tribunal. In our opinion, while the matters raised in these submissions are clearly matters of concern to Mr Pemberton, they are not matters over which the Tribunal or the Appeal Panel has any jurisdiction. Hence, we have not considered them any further.
In our view, many of the matters contained in the confidential submissions provided to the Tribunal, by Mr Pemberton, were irrelevant to the matters in issues before the Tribunal. In our view, had this evidence and submissions been relevant to the matters in issue, Mr Pemberton (that is, the access applicant), on whom there is no onus or a requirement of confidentiality, was required to place them openly before the Tribunal so that the Commissioner (that is, the respondent government agency) is given an opportunity to respond.

Commissioner's submissions

In his submissions, the Commissioner submitted that Mr Pemberton is seeking to challenge the following findings of fact made by the Tribunal: 1. By finding, when considering the application of cl 3(b) of the Table to s 14(2) of the GIPA Act, that disclosure of the information would be inconsistent with the purpose for which it was sought; 2. By finding that the individuals from whom the information was obtained would object to its disclosure or not have understood that the information might be disclosed in response to an access application under the GIPA Act (that is, a challenge to the Tribunal's finding at[34]-[35] that evidence received in misconduct investigations is treated with "strict confidence"); 3. When it found there was no evidence of misconduct and/or that disclosure of the information sought by the applicant would reveal that the agency or an employee of the agency had engaged in misconduct.
The Commissioner submits that none of these errors of fact warrant a grant of leave. The Commissioner submits that these findings were open to the Tribunal on the material before it and, while Mr Pemberton clearly disagrees with the findings, he has not demonstrated they were wrong.

Errors of law

The Commissioner accepts that where a finding was not open to the Tribunal on the evidence before it, that may amount to an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR; Ortiz v Minister for Immigration and Citizenship [2011] FCA 1498. However, where the Tribunal has a contest of the evidence before it, the fact that the Tribunal prefers the account of one party to the other, this does not amount to an error of law.
The Commissioner also accepts that to the extent that ignoring a substantial argument or material evidence can amount to an error of law: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. However, in this case it is evident that the Tribunal did not do so. Nor was the Tribunal required to give exhaustive reasons that included every aspect of Mr Pemberton's case so long as it satisfied the obligation to set out its reasoning processes that led it to the conclusions that it made: NCAT Act, s 62(3)(c). The Commissioner submits that the Tribunal's Decision satisfied this obligation and its Reasons for Decision were logical and understandable.

The GIPA Act

It is appropriate to make some observations about the relevant provisions of the GIPA Act and the role of the Tribunal, on administrative review, of a decision of an agency made under the GIPA Act.
The objects of the GIPA Act include: 1. giving members of the public an enforceable right to access government information (GIPA Act, s 3(1)(b)); and 2. providing that access to government information is restricted only when there is an overriding public interest against disclosure (GIPA Act, s 3(1)(c)).
An overriding public interest against disclosure is demonstrated if the public interest test in section 13 of the GIPA Act is satisfied. 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.
The permissible and only permissible public interest considerations against disclosure are those prescribed in s 14 of the GIPA Act. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1. This section did not apply to the information contained in the subject responses to the allegations made against them by Mr Pemberton.
Section 14(2) provides that the public interest considerations listed in the Table to that section are the only considerations that may otherwise be taken into account under the GIPA Act for the purpose of determining that there is a public interest consideration against the disclosure of government information and weighing that public interest against the public interest consideration in favour of disclosure. As we have noted, the relevant public interest considerations against disclosure the Tribunal found to have been established by the Commissioner were the following: 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, …, (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 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 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,
Section 12 makes provision for the public interest considerations in favour of disclosure. That section relevantly provides: 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 - … (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.
In determining whether there is an overriding public interest against disclosure of information, s 55 of the GIPA Act, enables the agency to take specified personal factors of the access applicant into account.
Section 58 sets out how a government agency is to decide an application for access to government information. That section relevantly provides: 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 … (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or …
Section 73(1) provides that where an agency determines to grant access to the government information sought that access is to be unconditional: 73 Access to be unconditional (1) 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.
Decisions of an agency made under s 58 of the GIPA Act are administratively reviewable decisions that are reviewable by the Tribunal on the application of a person who is aggrieved by that decision: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 7,9 and 55(1) and GIPA Act, ss 80 and 100.
On administrative review before the Tribunal, the onus is on the agency to prove that its decision is justified: GIPA Act, s 105.
In determining an application for administrative review of an administratively reviewable decision of a government agency (including a reviewable decision under the GIPA Act) the Tribunal is to determine the correct and preferable decision having regard to the applicable law and relevant factual material (s 63(1) of the ADR Act). For this purpose the Tribunal sits in the shoes of the agency and considers the matter afresh (ADR Act, s 63(2)).
The orders the Tribunal can make in determining the matter are those set out in s 63(3) of the ADR Act which provides as follows:: (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25] and [26], the Appeal Panel of the former Administrative Decisions Tribunal said that it was important that, on review, the Tribunal proceed in the structured way reflected in the Act (that is, s 13) when weighing the agency's case for refusal on the grounds of one or more of the s 14 Table considerations against the factors favouring disclosure. In this regard, the Appeal Panel noted that the public interest considerations against disclosure in the Table to s 14 of the GIPA Act are concerned with the 'systemic features of the operation of government' and need to be 'examined at a broader operational level'. In that case, the information in issue had been generated in one of the standard services of the NSW Police Force, namely the triple zero calls
The Appeal Panel went on to say that the s 14 questions needed to be examined at the boarder operational level of this service and "it would not be useful to introduce at this stage of the process considerations connected with the instant situation". However, such matters could be taken into account at the next stage of determining where the balance lies between the competing public interests, as required by s 13.
We have dealt with the specific public interest considerations the subject of this appeal in more detail below.

The Tribunal's Decision

As Mr Pemberton's grounds of appeal are largely based on a criticism of the approach taken by the Tribunal in its findings of fact, it is appropriate to set out the structure of the Decision itself, to the extent relevant to the matters in issue.
At [15] to [24] the Tribunal set out the relevant provisions of the GIPA Act (namely ss 5, 12, 13, 14(2), 15 and 55). In summary, the Tribunal noted: 1. There is a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure (s 5); 2. There is a general public interest in favour of disclosure and any other public interest consideration in favour of disclosure can be taken into account (s 12); 3. The public interest considerations against disclosure are those set out in s 14(1) and (2). In regard to the words "could reasonably be expected" in the table to s 14(2), the Tribunal said; 23 The words "could reasonably be expected" in s 14 mean that there must be a reasonable expectation (not fanciful, imaginary or contrived) that the disclosure could have the prescribed effect (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590); the word "prejudice" in this context should be given its ordinary meaning of "cause detriment or disadvantage" (McLennan v University of New England [2013] NSWADT 113) 1. In determining where the public interest lies, the Tribunal must determine whether there are public interest consideration against disclosure and whether, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13). At [24], the Tribunal noted; 24 The balancing exercise to be conducted under s 13 of the GIPA Act "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at par [74]. 1. The responsibility for establishing that the public interest considerations against disclosure on which it relies apply and that, on balance, those considerations outweigh the public interest considerations in favour of disclosure, rests on the Commissioner: Hall v Roads and Maritime Services [2012] NSW ADT 239 at [25].
At [25] to [27] the Tribunal listed the open and confidential evidence of Inspector Ponte, which was the evidence on which the Commissioner relied in support of his case.
At [28] to [32] the Tribunal noted the objections Mr Pemberton had made to the open affidavit evidence of Inspector Ponte. The Tribunal's rulings on those objections appears at [32] as follows: 32 I am not satisfied that the applicant's concerns are sufficient reason to exclude Inspector Ponte's evidence, given that the applicant's allegations of corruption and error against the officer are not established. As to the fact of his involvement in the Strike Force, there is no reason why a person involved in the investigation could not provide evidence of matters of which they have knowledge. The reliability of the evidence or otherwise is a matter to be weighed by the Tribunal.
At [33] to [60], the Tribunal considered the public interest considerations against disclosure relied on by the Commissioner. At [48] and [56], the Tribunal found that it was not satisfied that the Commissioner had established that a disclosure of the information in issue could reasonably be expected to give rise to the public interest considerations against disclosure in cll 1(e) and (h) of the Table to s 14(2) of the GIPA Act.
However, the Tribunal was satisfied that the Commissioner had established that a disclosure of the information in issue could reasonably be expected to give rise to the public interest considerations against disclosure in the following clauses in the Table to s 14 of the GIPA Act: cl 1(d), 1(f), 1(g), 3(a) and 3(b).
At [33] to [38] the Tribunal summarised the arguments of the Commissioner and the evidence of Inspector Ponte who, it was noted, holds the position of Professional Standards Manager Assist, in the PSC.
In regard to cll 1(d) and (f) the Tribunal found: 1. it was satisfied that managing allegations of employee misconduct is a function of the NSW Police Service (at [39]); 2. it has been accepted that the effective performance of an agency's employer function requires that complaints relating to employee misconduct are handled confidentially and the test is whether the agency will be able to obtain such confidential information from employees in the future if the information in question is disclosed, which is to be determined at a broad operational level (at [40]); 3. it was satisfied, based on the evidence of Inspector Ponte, that information obtained as part of an investigation of a complaint is treated as confidential by the Commissioner (at [41]); 4. the information in issue in that application were the responses of persons who were subject to the allegations (at [42]); 5. it might be argued that confidentiality is irrelevant to the officers concerned as it is in their interest to provide a response to the allegations. However, there was substance to the counter argument that if they were aware that their response might be disclosed to the community at large, they would be circumspect in their response and the investigator would receive less information. Hence it was not in the public interest that persons in their position feel constrained in their response to allegations, as this will hamper investigative process (at [44]-[45].
In regard to cl 1(g) the Tribunal found that the evidence of Inspector Ponte did not provide a basis for a finding that there was an express assurance of confidentiality that would give rise to a breach of confidentiality action or agency maladministration (at [51]). However, based on the Tribunal's findings in respect of cl l1(d) and 1(f), the Tribunal was satisfied that the information was provided to the agency in confidence (at [53]).
In regard to cl 3(a) and cl 3(b), at [59], the Tribunal, having cited the meaning of 'personal information' in cl 4 of Sch 4 of the GIPA Act, noted that information and opinions about the conduct or misconduct of employees is personal information as is complaints about employees or information about work. The Tribunal went on to find: 1. it was satisfied that the information in issue was personal information of the officers concerned (at [60]); and 2. the disclosure of the information would be for a purpose other than for which it was collected PIPP Act, s 18. A reading of the information gave reason to believe the individual would object. Nor was there any evidence that the individuals concerned were made aware that information of that kind would be disclosed or that there was a serious and imminent threat to the life or health of any person (at [62]).
The Tribunal dealt with the applicant's case at [67]-[88]. At [70]-[79], the Tribunal dealt with Mr Pemberton's contentions in regard to the public interest consideration in favour of disclosure; namely that a disclosure of the information could reasonably be expected to reveal that an agency or a member of the agency has engaged in misconduct.
At [70], the Tribunal noted the incidents of misconduct Mr Pemberton asserted would be revealed if the information in issue were to be disclosed. In summary these were: 1. a breach of the Telecommunications (Interception and Access) Act1979 (Cth) (TIA Act) in recording Crime Stopper calls; 2. the NSW Police Force having initially corruptly attempted to dismiss his 2012 allegations; 3. a failure to investigate his subsequent complaint about being bullied by one of the subject officers via Twitter, when he was told that it would be investigated by the Strike Force investigating his other complaints; 4. maladministration by the Officer in Charge of the Strike Force investigating his complaints by altering the terms of reference.
After noting, at [72], that it is a serious matter for the Tribunal to accept that a disclosure of information could reasonably be expected to reveal that an agency or a member of the agency has engaged in misconduct, the Tribunal summarised the evidence in regard to each of the abovementioned alleged incidents and noted its finding in regard thereto: at [73] to [78].
At [79] the Tribunal concluded that it was not satisfied that a disclosure of the information could reasonably be expected to reveal that an agency or a member of an agency had engaged in the kind of misconduct alleged.
As noted by Mr Pemberton in his grounds of appeal, at [80] the Tribunal found that the information in issue contained some personal information about him and that this was a public interest consideration in favour of disclosure of the information in issue. The Tribunal also noted that the personal information relates to Mr Pemberton's conduct as an employee and was provided as part of the officers' response to defend the allegations.
At [81] to [88], the Tribunal considered other public interest considerations in favour of disclosure, noting that s 55(2) of the GIPA Act provides that the applicant's personal factors may be taken into account in favour of disclosure, and that these may include any factors particular to the applicant.
At [85], the Tribunal found that in the absence evidence of the matters asserted by Mr Pemberton in regard to his workers compensation and the Commissioner's denials thereof, there was insufficient evidence to substantiate these matters and take them into account as a personal factor in favour of disclosure.

Consideration

In our view it is convenient to deal with Mr Pemberton's grounds of appeal in the terms he has articulated them. As we have already noted, the onus is on Mr Pemberton to establish his grounds of appeal.
We will begin by dealing with his challenge to the Tribunal's statement, at [10], as to what his application was directed to.

Ground 1 - The Tribunal erred, or misunderstood what his GIPA Application was directed to

In our view nothing turns on the statement of the Tribunal, at [10], of its Decision. It is merely an observation as to what the Tribunal understood Mr Pemberton's GIPA Act review application was directed to. This was not a material issue for determination by the Tribunal. Nevertheless, we note the Tribunal's observation was not made without any reference to Mr Pemberton's own affidavit evidence provided to the Tribunal.
For example, in his affidavit sworn on 5 December 2018, at [17] and [18], under the heading "Background to Information Sought", Mr Pemberton said that in February 2016, when he was informed that none of his allegations had been proven, he was not provided with an explanation as to how his allegations had not been found proven and was thereby forced to apply to the NSW Police Force, through the GIPA Act, to obtain any form of explanation.
We note that in his affidavit, Mr Pemberton also said, at [19], that there were three bases to his application for the information in the subject responses. These were: 1. "Personal Information" - Mr Pemberton cited s 12(2)(d)) of the GIPA Act in support of this basis; 2. "Person attempting to prove misconduct" - that is, Mr Pemberton was a person seeking to prove misconduct; and 3. "the information would provide evidence of misconduct" - Mr Pemberton cited s 12(2)(e) of the GIPA Act.
In our opinion, (2) above is misconceived. In this regard, Mr Pemberton's application for review of the decision of the Commissioner to refuse him access to the information in the subject responses is not a vehicle for him to agitate his grievances generally against the Commissioner in regard to the investigation of his 2012 allegations. This he must purse elsewhere. As noted by the Tribunal, at [20], of its Decision its task in the application before it was: 20 …[to] determine whether the agency has substantiated its reliance on any of the identified considerations against disclosure, and if so, those considerations must be weighed against the considerations which favour disclosure, bearing in mind what is said in s 15.
In its Decision the Tribunal went on to consider in a logical way each of the competing public interests and then weigh then to determine where the balance lay.

Ground 2 - The Tribunal erred because it ignored, misunderstood or misinterpreted Mr Pemberton's "significant" evidence and submissions (including his confidential evidence and submissions)

For the reasons that follow, we are not persuaded, as alleged by Mr Pemberton, that he has established this ground of appeal. That is, we are not satisfied that Mr Pemberton has established that the Tribunal ignored, misunderstood or misinterpreted his evidence or submissions (including his confidential evidence and submissions) about: 1. Inspector Ponte having provided false and misleading evidence to the Tribunal; and 2. the information in the subject responses could/would reveal or substantiate misconduct.
Before we consider this ground of appeal it is appropriate to briefly mention the requirements of a written statement of reasons for decision, as a failure to provide proper reasons raise a question of law.
First, it is well accepted that the Tribunal has an obligation to give adequate written statement of reasons for decision: see JCB Enterprises Pty Ltd v Mangion [2016] NSWCATAP 180; Khan v Kang [2014] NSWCATAP 48; Collins v Urban [2014] NSWCATAP 17 at [54] to [56]; Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65. That obligation arises under s 62 of the NCAT Act and under common law.
Section 62(3) of the NCAT Act prescribes what is to be contained within such written statement of reasons for decision. These are: (3) A written statement of reasons for the purposes of this section must set out the following - (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made
It is accepted that written statement of reasons do not require lengthy or elaborate reasons, but a judge (or Tribunal Member) "is obliged to state generally and briefly the grounds which have led him or her to the conclusions reached concerning the disputed factual questions and to list the findings on the principle contested issues": Oh v Café Great Pty Ltd [2018] NSWCATAP 291, at [5] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
In JCB Enterprises, at [10] to [12], the Appeal Panel noted the following about the requirement to include in the statement of reasons any important/critical and conflicting evidence to the determination of a matter: 10. In Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441 Meagher JA identified three fundamental elements of a statement of reasons. The first was that a judge should "refer to relevant evidence". His Honour held that "where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it." Meagher JA went on to say that, "Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to". 11. In Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Samuels JA also used the word "critical" to describe the kind of evidence to which a decision maker should refer. His Honour held that it would be an error of law for a judge to ignore evidence which was "critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge." Finally, reasons need only meet a "minimum acceptable level". In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Basten JA held at [48] that: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality
In regard to Mr Pemberton's confidential evidence and submissions generally, we note that, at [13], the Tribunal expressly referred to Mr Pemberton's evidence and submissions that had been provided to the Tribunal in confidence. The Tribunal also noted that it had made orders under s 64(1)(d) of the NCAT Act (later amended to restrict publication under s 64(1)(c)) ensuring the non-disclosure of certain parts of the applicant's evidence and submissions were not disclosed to the public or the Commissioner. Furthermore, at [71] and [84] the Tribunal included a reference to the evidence and submissions Mr Pemberton had provided, in confidence.
Nevertheless, the question is whether the Tribunal erred, as alleged by Mr Pemberton, that the Tribunal ignored, misunderstood or misinterpreted his evidence and submissions in so far as they related to the Tribunal's decision making task on material questions of fact relevant to the issues before it.
At [67] of its Decision, the Tribunal noted the affidavits Mr Pemberton had provided and on which he relied in support of his case. These were affidavits dated 2 August 2019, 5 December 2018 and 24 February 2020.

(a) Did the Tribunal ignore, misunderstand or misinterpret Mr Pemberton's evidence and submissions about Inspector Ponte having given false and misleading evidence?

As we have noted, Inspector Ponte gave evidence in support of the Commissioner's case that there were a number of public interest considerations against disclosure of the information in the subject responses, including the public interest consideration against disclosure in cll 1(d), 1(f), 1(e), 1(g) and 1(h) of the Table to s 14 of the GIPA Act.
It is Mr Pemberton's assertion that Inspector Ponte gave false and misleading evidence to the Tribunal in two respects and that the Tribunal ignored, misunderstood or misinterpreted his evidence and submissions in this regard. As we have noted, Mr Pemberton has specifically articulated two aspects to this ground of appeal.
The first aspect relates to the statement Inspector Ponte made in his affidavit of 7 November 2018 where he said: … [In] fact, PSC never provides investigation reports or any investigative materials to either police employees that are the subject of unsubstantiated complaints or to any complainant".
It is Mr Pemberton's contention that this statement is false and was made so as to mislead the Tribunal. Mr Pemberton's contention is based on the fact that Inspector Ponte's evidence was irrelevant and false because he had been provided with copies the PSC internal investigation reports relating to the investigation of his 2012 allegations. We note Mr Pemberton also provided the Tribunal with a portion of one of these reports he had been provided with.
We note that in his affidavit sworn on 5 December 2018, at [5] and [6], Mr Pemberton asserted that the evidence of Mr Ponte was "largely irrelevant" because it was generic. He said Inspector Ponte's evidence reflected the applicable PSC Policy and failed to take into consideration any of the specifics to the information being sought. However, Mr Pemberton did not assert that the evidence of Inspector Ponte was false and appropriately so.
At [28] to [32], the Tribunal dealt with Mr Pemberton's objections to the evidence of Inspector Ponte.
At [28], the Tribunal specifically noted Mr Pemberton's objection to the "generic" nature of Inspector Ponte evidence. At [29], the Tribunal said that this was a matter to be considered as part of the balancing procedure. We also note that, at [32], the Tribunal rejected the other challenges Mr Pemberton made to the evidence of Inspector Ponte.
At [33] to [62], the Tribunal dealt with the Commissioner's case and evidence in so far as it related to Commissioner's claim that the s 14 Table public interest considerations against disclosure of the information in the subject responses applied.
We note that the above statement of Inspector Ponte was made in the context of his evidence about the role of the PSC in investigating complaints made against employees of the NSW Police Force and how the PSC treats information that is received and collected in the course of such investigations: see at [33] to [45] of the Decision. At [40], the Tribunal also noted that the cl 1 Table public interest considerations against disclosure relied on by the Commissioner were to be determined at the "broader operational level", which is what Inspector Ponte's evidence was directed to.
Hence, we can see no error in the manner in which the Tribunal approached the evidence of Inspector Ponte, as set out in his affidavit of 7 November 2018. Nor are we satisfied that the Tribunal ignored, misunderstood or misinterpreted the evidence and submissions of Mr Pemberton.
The abovementioned statement of Inspector Ponte was clearly not false. Furthermore, it was provided in the context "systemic features of the operation" of the PSC in investigating allegations of misconduct made against employees of the NSW Police Force.
Finally, while it is correct that Mr Pemberton was provided with redacted copies of the PSC internal investigation reports relating to his 2012 allegations, in our opinion, this fact was irrelevant to the Tribunal's determination as to whether the Commissioner had discharged its onus that the cl 1 public interest considerations against disclosure applied. Hence, it was unnecessary for the Tribunal to refer to this evidence in its Decision.
Hence, we are not satisfied that Mr Pemberton has established this aspect of his ground of appeal.
We make a similar finding in regard to the second aspect of this ground of appeal in that the Tribunal ignored, misunderstood or misinterpreted his evidence and submissions (including confidential submissions) in regard to misconduct.
We understand this aspect of Mr Pemberton's ground of appeal arises from the assertion he made at [22] and [25] of his 5 December 2018 affidavit.
At [22], Mr Pemberton asserted that his managers, including Mr B and Ms H, had provided false and untruthful information to the PSC investigators and in affidavits to the Tribunal. At [25], Mr Pemberton included an extract from the PSC internal investigation report concerning the allegations he made against one of these officers. That extract, Mr Pemberton said was "only one example provided by the Investigators report of misconduct and unlawful conduct" by those persons he had complained about.
Inspector Ponte's response is contained, at [10], of his affidavit affirmed on 11 December 2018. In his response, Inspector Ponte said that Mr Pemberton's assertions of false and untruthful information was "both serious and baseless" and at best speculative. In regard to the asserted misconduct by Mr B, Inspector Ponte said that the extract did not constitute misconduct and Mr Pemberton had failed to otherwise explain how the information released to him under the GIPA Act contains admission of misconduct or unlawful conduct.
In his open reply submissions, dated 25 February 2020, at [23], Mr Pemberton submitted that Inspector Ponte's response was an example of false and misleading information being given to the Tribunal. That falsity he asserted to have arisen because: (a) the alleged admissions made by the officer the subject of his complaint that Crime Stopper calls were recorded; and (b) Inspector Ponte knowingly being aware that the recording of Crime Stopper calls were unlawful and contrary to the TIA Act.
In our view, other than mere assertion, Mr Pemberton has not pointed to any evidence given by Inspector Ponte about his personal view as to whether the recording of Crime Stopper calls is, or is not a breach of the TIA Act. Nor can we find a view of this kind being expressed by Inspector Ponte and appropriately so as this was not his role. Any view he did express related to the role of the PSC generally and the findings contained in the PSC Investigation reports. Hence, we are not satisfied that Mr Pemberton has established the Inspector Ponte gave false evidence in regard to the recording of Crime Stopper calls being or not being a breach of the TIA Act.
In regard to this ground of public interest consideration in favour of disclosure, Mr Pemberton has not challenged the Tribunal's description, at [70(1)], as to the misconduct he asserted a disclosure of the information in the subject response could reasonably be expected to reveal.
We note that in support of his claim Mr Pemberton relied on the extract from the PSC investigation report he had provided to the Tribunal which he asserted evidence an admission by the officer of having recorded Crime Stopper calls. He also relied on a copy of an extract from the Crime Stoppers website which states that "Crime Stoppers does not record your calls". That extract was attached to Mr Pemberton's affidavit dated 25 February 2020.
The Tribunal clearly considered what was contained in the extract of the PSC investigation report provided by Mr Pemberton when it said, at [73], that there "was some documentary evidence tendered by the applicant that this recording occurred for training and management purposes …". At [75] of its Decision, the Tribunal also noted that "having reviewed the response of the officer in question" it did not consider that the information it contained revealed any misconduct.
We have examined both, the extract in the PSC investigation report and the remainder of that report which Mr Pemberton had provided, together with the information in the subject response of the relevant officer. From our examination, can see no error in the findings of the Tribunal, at [75], that the information in the subject response did not of itself reveal "that an agency or a member of an agency has engaged in misconduct". Furthermore, as noted by the Tribunal, this was an issue examined by the PSC in its investigation of Mr Pemberton's complaint and it found that no breach of the TIA Act had been established.
In our view, it is difficult to see how the extract from the Crime Stoppers website was of any relevance to the issues before the Tribunal, especially as the specific conduct Mr Pemberton had complained about was investigated by the PSC and no breach was found to have been established.
Hence, we are not satisfied that Mr Pemberton has established this aspect of his grounds of appeal in that the Tribunal ignored, misunderstood or misinterpreted his evidence and submissions that Inspector Ponte gave false evidence about there being no misconduct.

(b) Did the Tribunal ignore, misunderstand or misinterpret Mr Pemberton's evidence and submissions about a disclosure of the information could reasonably be expected to reveal or substantiate misconduct - cl 12(2)(e)?

In his submissions in reply, dated 28 May 2021, Mr Pemberton said the following: 24. The appellant states that the evidence provided to the Tribunal, was sufficient and conclusive evidence that the information sought 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. That it is misconduct, negligent, improper and unlawful conduct to record calls and not inform of the caller (of the recording) as it is against legislation. The appellant has articulated this clearly in the evidence provided to the Tribunal. 25. Furthermore the appellant again states that it is not up to the Tribunal to make determinations of misconduct, it is only up to the Tribunal to make an objective assessment of the evidence before the Tribunal. I repeat that the phrase is an "objective assessment" only, based on the evidence before the Tribunal as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. 26. The error made by the Tribunal was to state the following: "79 Accordingly I am not satisfied that disclosure of the information could reasonably be expected to reveal that an agency or a member of an agency has engaged in the kind of misconduct.
In our opinion this is a self-serving statement and fails to identify any alleged error by the Tribunal. At the same time, we can see no error in the Tribunal's understanding or application of s 12 of the GIPA Act, including the notes attached thereto (e.g. cl (e)). Nor, in our opinion, as asserted by Mr Pemberton in his Notice of Appeal, did the Tribunal take upon itself to determine that no misconduct occurred.
As we have noted, at [79], the Tribunal found that it was not satisfied that a disclosure of the subject responses could reasonably be expected to reveal the asserted misconduct.
Nevertheless, the question is whether the Tribunal in making this finding, ignored, misunderstood or misinterpreted the evidence and submissions he had provided.
As we have already indicated, Mr Pemberton did not challenge the Tribunal's description, at [70(1)-(4)], of the four incidents of misconduct he asserted could reasonably be expected to be revealed if the information in the subject responses was disclosed. His only remark was that in respect of his assertion that a disclosure of the information could reasonably be expected to reveal maladministration by the Officer in Charge of the PSC investigation was difficult to understand: see Decision at [70(4)]. The Tribunal went on to summarise in considerable detail what it understood Mr Pemberton to assert in regard to this allegation of misconduct. Yet, Mr Pemberton has not challenged any of these details, or contended that the Tribunal had ignored, misunderstood or misinterpreted his evidence and submissions in regard to its description of his fourth incident of alleged misconduct.
The Tribunal's findings, at [79], is based on its findings in regard to each of the four incident of alleged misconduct identified by Mr Pemberton.
We have dealt with the first of these above and we have found no error.
In regard to the second incident of alleged misconduct, the Tribunal found, at [76], that Mr Pemberton had not pointed to sufficient evidence to find that the NSW Police Force had corruptly attempted to dismiss his allegations in 2013. Again, other then mere assertion Mr Pemberton did not point to the evidence on which he relied in supported his assertion. As noted by the Tribunal, at [72], in Commissioner of Police, NSW Police Service v Barratt [2015] NSWCATAP 68, the Appeal Panel, at [136], noted that the note (e) to s 12 "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". In this case, the Tribunal found that there was no such reasonable basis. In our, view, on the material before it this was a finding open to the Tribunal on the material before it.
We make a similar finding in regard to the Tribunal's findings, at [77] and [78], in regard to Mr Pemberton's third and fourth incident of alleged misconduct. Again, Mr Pemberton did not point to the evidence or submissions he had provided to the Tribunal that he asserted to have been ignored, misunderstood or misinterpreted. We are also satisfied, on the material before the Tribunal, including the information in the subject response, the findings the Tribunal made, at [77] and [78] were open to it.
Hence, we can see no error in the Tribunal's findings, at [79], that it was not satisfied that a disclosure of the information in the subject responses could reasonably be expected to reveal that an agency or a member of an agency has engaged in the kind of misconduct alleged.
We reiterate, as noted by the Tribunal, at [20], even if the Tribunal had found that a disclosure of the information in the subject responses could reasonably be expected to reveal that an agency or a member of an agency has engaged in one or more of the kind of misconduct alleged by Mr Pemberton, this did not of itself determine the matter as this public interest consideration in favour of disclosure still needed to be weighed against the established public interests against disclosure.

Ground 3 - Having found that the information the subject of the responses contained some personal information about Mr Pemberton, did the Tribunal err in not providing any reason for declining to provide him with the information?

As we have noted above, a failure to provide proper reasons can raise a quest of law. However, in our view, when the Decision of the Tribunal is read as a whole, it cannot be said that, in this case, the Tribunal failed to provide adequate reasons as to why it found that the decision of the Commissioner to refuse Mr Pemberton access to the information in the subject responses was the correct and preferable decision even though that information contained his personal information.
The Tribunal's finding, at [80], that the information in the subject response contained some personal information about Mr Pemberton was not the determining factor in deciding the correct and preferable decision. As we have already noted, it was a relevant factor to be taken into account in the balancing exercise because it was a public interest consideration in favour of disclosure.
However, at [60] and [62], the Tribunal found that the information also contained the personal information about the officers who had provided the responses and that a disclosure of that information could reasonably be expected to breach this disclosure information protection principle of the PPIP Act. Again, this is a factor to be taken into account in the balancing exercise because it was a public interest consideration against disclosure.
As we have noted above, at [24], of its Decision the Tribunal noted that the balancing act is a question of fact and degree and not a task amenable to mathematical calculation.
In this case, the Tribunal set out its findings in regard to the balancing of these competing public interests at [93], which we have set out in full at [17] above. In our opinion, the Tribunal's reasons in this regard are adequate. We are also satisfied, having examined the information in the subject responses that the Tribunal's finding in this regard was correct.
Hence, we are not satisfied that Mr Pemberton has established this ground of appeal

Conclusion and orders

For the reasons set out at [5] above in these Reasons for Decision, Mr Pemberton's appeal has been determined on the papers, in the absence of a hearing.
For the reasons set out above, we are satisfied that Mr Pemberton has not established his grounds of appeal.
Hence we make the following orders: 1. A hearing of this appeal is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The application for leave to appeal is refused. 3. The appeal is dismissed.

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: 02 August 2021

Enforcement Conduct Commission Act 2016(NSW)

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Judgment (22 paragraphs)

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Cited By (1)