Potts v Commissioner of Police

Evidence and Submissions

1. At hearing the Respondent relied on the evidence of Ian Steptoe from his sworn affidavit of 25 June 2021. Mr Steptoe is a Senior Advisor at Infolink -Police Command at the Respondent, which is responsible for the administration and determination of GIPA applications, subpoenas, and objections to production. In the context of these proceedings he reviewed the COPS event report and statement of Michael Worker to which the Applicant was denied access, and gave evidence of what effects disclosure of that information would have. The Respondent also provided the Tribunal with written submissions dated 25 June 2021.
2. At hearing the Respondent submitted that the statement of Michael Worker largely repeated the content of the COPS event report, and the public interest considerations against their disclosure were therefore the same. The Respondent relied on Clauses 1(d), 3(a), 3(b) and 4(d) of the Table referred to at section 14 of the GIPA Act to support its decision to refuse the Applicant access to that information.
3. The Applicant provided the Tribunal with extensive written submissions and supporting documentation, including examples and evidence of the fraudulent activity referred to in his access application. These documents were received by the Tribunal at the time he made his application on 31 March 2021, on 20 April 2021 and on 15 July 2021. The Applicant made additional oral submissions at the hearing on 26 July 2021.

Legal Principles

1. The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Section 100(1) of the GIPA Act gives a person who is aggrieved by a "reviewable decision" of an agency the right to seek administrative review of that decision by the Tribunal. The term "reviewable decision" is defined in s 80 of the GIPA Act.
2. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s 63(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3).
4. The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. The objects of the GIPA Act are set out in s 3(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.
5. "Government information" is given a wide meaning under section 4 of the GIPA Act being "information contained in a record held by an agency."
6. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. In accordance with s 9(1) of the GIPA Act, the Applicant has a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
7. Section 105 of the GIPA Act provides that the onus is on the Respondent agency to justify its decision.

Public Interest Considerations

1. The general public interest considerations in favour of access to government information set out in s 12 of the GIPA Act mean that the balance is always weighted in favour of disclosure. In addition to the general public interest, the following examples are identified: Note : The following are examples of public interest considerations in favour of disclosure of information-- (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
2. Section 13 of the GIPA Act provides - 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.
3. Section 14 of the GIPA Act deals with public interest considerations against disclosure. In these proceedings the Respondent is relying on the public interest considerations against disclosure described in the Table to Section 14(2) of the GIPA Act in relation to the information it has withheld. That information is subject to the balancing exercise required by section 13 of the GIPA Act, with reference to the principles expressed at section 15 of the GIPA Act. Relevantly, the Respondent relies on the following public interest considerations against disclosure: 1. (1)(d) - Prejudice supply of confidential information that facilitates effective exercise of the agency's functions; 2. (3)(a) - reveal the personal information of other individuals; and 3. (3)(b) - contravene an Information Protection Principle (IPP) under the Privacy and Personal Information Protection Act 1998 (PPIP Act); and 4. 4(d) - prejudice any person's legitimate business, commercial, professional or financial interests.
4. The evidence of the Respondent must satisfy the threshold for each of those clauses, being that it "could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)". In this regard, the test to be applied is an objective one, approached from the viewpoint of a reasonable decision-maker: Neary v State Rail Authority [1999] NSWADT 107. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163, followed in Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett) at [40], Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) at [40] to [41], Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
5. The meaning of the word prejudice is to "cause detriment or disadvantage' or to 'impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at paragraph [60].
6. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed. That fact being established to the relevant standard of proof, on the balance of probabilities: Barrett, at [42].
7. The approach to determining the balance referred to in s 13 was summarised in Williams v Department of Industry and Investment [2012] NSWADT 192 at [20] to [22], following Flack and Hurst v Wagga Wagga City Council [2011] NSWADT 307 as requiring decision-makers to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.

Consideration

1. The Respondent relied on the following public interest considerations against disclosure identified at the Table to s 14 of the GIPA Act, that disclosure of the information could reasonably be expected to: 1. Clause 1(d): prejudice the supply to an agency of confidential information that facilitates the exercise of that agency's functions; 2. Clause 3(a): reveal an individual's personal information; 3. Clause 3(b): contravene an IPP under the PPIP Act; and 4. Clause 4(d): prejudice any person's legitimate business, commercial, professional or financial interests.
2. I will address each consideration in turn, determining what weight (if any) should be afforded to that consideration. The respondent's consultation with the AUC and its response is taken into account in my consideration.

Clause 1(d): prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

1. The Respondent submitted that the functions of the NSW Police Force (NSWPF) include the prevention and investigation of crime, pursuant to s 6 of the Police Act 1990. Relying on the evidence of Mr Steptoe, the Respondent submitted that the effective exercise of that function requires the NSWPF to receive information from members of the public that is supplied to it in confidence. There is a widely-held expectation that information supplied to police in the course of an investigation will be confidential, except to the extent that disclosure is required for the purpose of further investigation or the charging or prosecution of an offence. This is reflected in the NSWPF Customer Service Charter. I accept that submission. In Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 (Camilleri), the Appeal Panel referred at [40] to the "long history of cases in the Tribunal that have recognised the confidentiality that ordinarily attaches to complaint communications to law enforcement agencies". This expectation of confidentiality was also recognised by the Supreme Court in Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [69]. In Camilleri, the Appeal Panel held at [33]: "The question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received".
2. I also accept that a breach of that confidentiality could reasonably be expected to prejudice the supply of information to NSWPF. If the information provided to police by members of the public in confidence was generally available, it is likely that the agency's general ability to obtain information of that nature in the future would be prejudiced.
3. In relation to the specific documents identified as responsive to the access application, having reviewed those documents. I accept the Respondent's evidence that the Statement of Michael Worker (and all of the information contained therein) was supplied to the NSWPF in confidence, and that the COPS event report includes and expands on information from the Statement of Michael Worker, containing further information provided to the NSWPF in confidence involving the internal finances of the AUC and how the AUC dealt with the alleged fraud by its former pastor. The COPS event report also includes the NSWPF's reasoning for its decision not to investigate the matter further.
4. The Applicant relied on the findings of the Information Commissioner's Report dated 16 March 2021. The Information Commissioner was not satisfied that disclosure of this further and additional information beyond the contents of the Statement of Michael Worker, including the NSWPF's reasoning for not continuing the investigation, could reasonably be expected to prejudice the supply to an agency of confidential information. The Respondent submitted that while the reasoning was not information which was supplied in confidence, it was based on information of that nature and cannot be disclosed without effectively disclosing the confidential information.
5. I disagree with the Respondent's submission. The reasoning and decisions made by the NSWPF as to whether or not an investigation should be continued is an entirely separate issue to the receipt of confidential information by the NSWPF to conduct those investigations. That would appear to be more appropriately considered in the context of Clause 1(e) of the table to s 14, which identifies as a relevant public interest consideration against disclosure of information: e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,
6. However the Respondent hasn't relied on that provision, or provided any explanation as to how disclosure of its reasoning would prejudice its deliberative process. The onus is on the Respondent to justify its decision in relation to this information, which it has not done. I therefore do not accept that the public interest considerations against disclosure at cl 1(d) are applicable to the NSWPF's reasoning for not continuing the investigation, as contained in the COPS event report.
7. The Respondent submitted that the expectation of confidentiality and the importance of the supply of information is equally applicable regardless of whether a decision by the NSWPF is ultimately made to bring charges, because the individual or organisation who supplies information to the NSWPF cannot know at the time of the supply how the investigation will conclude and it is inherent in the investigation of potential crimes that not all matters will necessarily lead to charges being brought. I agree with those submissions. The Respondent submitted that I should give the consideration at clause 1(d) of the table to s 14 of the GIPA Act 'significant' weight on the basis that the functions of the NSWPF in preventing and investigating crime are of great public importance.
8. While I agree that the functions of the NSWPF are of great public importance, I disagree that the information subject of these proceedings is of such significance in the exercise of those functions. Confidential information provided in circumstances such as these where an investigation has concluded and charges have not been brought cannot be as significant as confidential information provided in circumstances where an investigation is ongoing, and/or the confidential information has resulted in charges being laid. Accordingly I consider this consideration to be of 'reasonable' weight in the circumstances.

Clauses 3(a) and 3(b): reveal personal information and contravene an IPP under the PPIP Act

1. The respondent submitted that the Statement of Michael Worker and the COPS event report contained personal Information in the form of names and opinions, which were not available in the public domain. The provision of that information would therefore "reveal" information to the applicant within the meaning of Sch 4 of the GIPA Act and its disclosure would contravene the disclosure IPP at s 18 of the PPIP Act. The Respondent submitted that the exemptions to s 18 did not apply because there was reason to believe that the individuals concerned would object to the disclosure of Information obtained during the course of a criminal investigation, and the individuals concerned are not reasonably likely to have been aware that information of that kind is usually disclosed to an access applicant under the GIPA Act. On my review of the information I accept those submissions.
2. The Respondent submitted that greater weight should be given to the considerations at cl 3(a) and (b) in the context where the personal information at issue relates to an alleged fraud and the AUC's handling of it. It submitted that: … such allegations are susceptible of producing strong emotions within members of the church community. A high degree of discretion is likely to be necessary to investigate allegations of that nature and the disclosure of personal information in that context may have serious consequences.
3. The consequences of disclosing personal information are otherwise addressed as a consideration at clauses 3(e) and 3(f) of the table to s 14 of the GIPA Act, where there is a reasonable expectation that disclosure could: (e) reveal false or unsubstantiated allegations about a person that are defamatory, (f) expose a person to a risk of harm or of serious harassment or serious intimidation,
4. The respondent has not relied on the considerations at 3(e) and 3(f), and has not itself provided evidence of the "serious consequences" with which it is concerned. Instead, it relied on the Applicant's submission to the Tribunal in relation to the AUC's right to appear and be heard at the hearing as "equally applicable to information" sought by the Applicant, where the Applicant wrote: "Parts of the information I provided is of course very sensitive and all the people I refer to are whistle blowers and are current employees of our church. I fear what the reactions will be from the AUC by under-mining and attacking them, and threaten their future employment within our church. Therefore threatening the financial security of the families involved. Our church very unfortunately has a well know reputation of not keeping issues confidential. My very great concern is the documentation I provided to the Civil and Administrative Tribunal is sent to the AUC via email or in hard-copy format I can absolutely guarantee the material will be around Australia in Adventist Church circles within one (1) week. This outcome cannot be tolerated under any circumstances".
5. The AUC objected to the disclosure of the Statement of Michael Worker and the COPS event report. In a letter dated 25 November 2020, signed by Michael Worker, the AUC objected on the grounds that the COPS event report and the Statement of Michael Worker contained the personal information of Michael Worker and Grenville Kent, and its release would contravene IPPs 10, 11 and 12 of the PPIP Act because those individuals had not consented to the use and disclosure of their personal information to any "fellow church member".
6. In my review of the documents, I agree that the Statement of Michael Worker in its entirety constitutes "personal information" which may contravene, at the very least, the disclosure IPP at s 18 of the PPIP Act. The COPS event report, however, does not entirely repeat the information from Michael Worker's statement so that its disclosure would reveal an individual's personal information.
7. [CONFIDENTIAL]
8. I agree that the public interest considerations at cl 3(a) and 3(b) carry 'significant' weight in relation to the identified "personal information".

Cl 4(d): prejudice any person's legitimate business, commercial, professional or financial interests

1. In the AUC's response to the respondent's consultation pursuant to s 54(1) of the GIPA Act, it identified that the criticism of the AUC contained in the COPS event report could reasonably be expected to prejudice the AUC's legitimate business, commercial, professional or financial interests, because: It is likely that the Church would potentially lose the confidence of this member as well as other members…
2. [CONFIDENTIAL]
3. In its initial decision the Respondent asserted that the potential for the information to be misunderstood or misinterpreted could reasonably be expected to place the AUC at a professional or financial disadvantage. As noted by the Information Commissioner, s 15(d) of the GIPA Act makes clear that the fact that information could be misunderstood or misinterpreted is irrelevant to the public interest.
4. The Respondent noted that it was not in a position to adduce evidence or make detailed submissions as to the prejudice that might be expected to arise to the AUC's interests, so instead made broad submissions about the legitimate interests of "the clergy": The clergy is a profession: see, for example, Attorney General v Mulholland [1963) 2 QB 477 at 489-490. Indeed, it is one of the "traditional trinity" of professions along with medicine and law: see Brisbane Youth Service Inc v Beven [2018] 2 Qd R 291 at [160]. … retaining the confidence of its members (or, to put it another way, the faith of the faithful) is one of the fundamental professional interests of a religious organisation. The respondent notes that tithing is an aspect of the religion of the Seventh Day Adventist Church and that a loss of confidence in the AUC could well lead to a reduction in the tithe collected by it, thereby prejudicing the financial interests of the AUC.
5. The Tribunal rejects these submissions in circumstances where there is no evidence specific to the AUC's legitimate interests. Further, and significantly, the public interest considerations against disclosure refer specifically to legitimate interests and where the information in question concerns allegations of fraud, it is unlikely that the public interest would be against disclosure of the information. The Tribunal is therefore not satisfied that the Respondent's reliance on this consideration is justified.

Public interest considerations in favour of disclosure

1. In addition to the general public interest in favour of disclosure at s 12(1) of the GIPA Act, the Respondent accepted that the considerations at 12(2)(a) and (b) of the GIPA Act were generally applicable, but submitted that the decision to conclude the investigation subject to this access application was not a matter of public importance because it did not raise any systemic concerns about the practices and procedures of the NSWPF, and the victim of the alleged offence being investigated (that is, the AUC) did not appear to take issue with the decision of the NSWPF not to continue the investigation. The respondent submitted that its decision not to further investigate the allegations of fraud associated with the financial management of the AUC was not a matter of public importance.
2. I disagree. The respondent's decision not to further investigate allegations of fraud is an issue of public importance. In general, the investigation of fraud is certainly an issue of public importance. Specifically in relation to allegations of fraud within the Seventh Day Adventist Church, there may be fewer members of the public to which an investigation is important, or the public importance may be to a lesser degree than some other fraud, but it is still an issue of public importance. In relation to allegations of fraud within the Seventh Day Adventist Church, it is unfair and inaccurate to state that the AUC is "the victim" when clearly the members of the Church - including the Applicant - are also potential victims of any alleged fraud.
3. I accordingly give the public interest considerations in favour of disclosure reasonable weight.

Applicant's personal interest

1. The respondent submitted that the Applicant's relationship with the Church is a relevant consideration under s 55(1)(a) and his motives for seeking access to the information are relevant under s 55(1)(b) of the GIPA Act. It submitted that, in considering the public interest considerations against disclosure, his "desire to ventilate his grievances with the AUC" increased the likelihood that the release of the information would prejudice the AUC's interests in relation to cl 4(d), and any personal information could be expected to be disseminated widely by the Applicant, which would be relevant to cl 3(a) and 3(b) of the Table to s 14 of the GIPA Act. The Respondent submitted: The core of the applicant's complaint is an internal matter within the AUC. The core of the applicant's complaint goes to the financial management of the AUC, its consideration of whether to pursue civil remedies, and the applicant's relationship with the AUC…. these are not matters of public importance.
2. I disagree. In these proceedings, the Applicant's core complaint is not an internal matter within the AUC. His core complaint is the refusal of the Respondent to provide him with access to information held by it, and his professed motive for seeking access to the information is to understand why the Respondent decided not to continue its investigation into the allegations of fraud.
3. I also disagree that these personal factors have any impact on the public interest considerations against disclosure. I have already found that the consideration at cl 4(d) does not apply, and I am not satisfied that the likelihood that the Applicant would disseminate the information widely would add any weight to the considerations at cl 3(a) and 3(b), in circumstances where, pursuant to s 71(3) of the GIPA Act, an agency is not entitled to impose any conditions on the use or disclosure of information once provided as a result of an access application.
4. I agree with the Respondent's submission that the Applicant's legitimate concern to ensure issues he has raised have been adequately investigated by the Respondent is a personal factor which lends weigh to the public interest favouring disclosure, pursuant to s 55(2) of the GIPA Act. I give this reasonable weight in the circumstances.

Balancing exercise

1. I have given the public interest considerations in favour of disclosure of the information reasonable weight.
2. With respect to the Statement of Michael Worker and those parts of the COPS event report which are derived from its content or communications with its author disclosing personal information, I have given the public interest considerations against their disclosure at cl 3(a) and 3(b) significant weight and at cl 1(d) reasonable weight. To the remainder of the COPS event report I have given the public interest considerations against disclosure at cl 1(d) reasonable weight.
3. On balance, the public interest weighs in favour of the disclosure of those parts of the COPS event report which are not derived from the content of the Statement of Michael Worker or communications with its author in relation to that statement.
4. The correct and preferable decision in the circumstances is for the Tribunal to set aside the Respondent's decision, and order the release of that information in the COPS event report which is not identified as "personal information" in these reasons for decision. The Respondent can achieve this by redacting those parts of the COPS event report which are identified in the confidential paragraph at [39] above, in accordance with s 74 of the GIPA Act.

Orders 1. The reviewable decision is set aside. 2. The respondent is to provide access to the Applicant of the COPS event report E74152422, redacted in accordance with these reasons for decision, within 28 days.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 15 March 2022