Rae v Commissioner of Police

[4]

Introduction

The respondent's Notice of Decision dated 25 July 2019 concerned an access application dated 29 May 2019 made by the applicant for access to documents pursuant to section 9 (1) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The documents sought in the applicant's access application was "all documents, records and electronic recordings in respect to the complaint records" held by NSWPF relating to the applicant.
The respondent's Notice of Decision decision dated 25 July 2019 refused the access application on the basis that it would constitute an unreasonable and substantial diversion of the respondent's resources.
On 20 August 2019 the applicant sought an Internal Review of the respondent's Notice of Decision.
The Internal Review dated 10 September 2019 upheld the respondent's Notice of Decision.
The application filed in this Tribunal was the subject of a case conference between the parties on 10 December 2019. The Tribunal remitted the matter to the respondent for reconsideration pursuant to section 65(2) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
The respondent issued its further Notice of Decision dated 31 January 2020. The Schedule of Documents in the further Notice of Decision identified the release of 1 document "in full"; 4 documents released "in part"; and 29 documents "refused in full". The decision to withhold information was made by the respondent on the basis that it was subject to an "overriding public interest against disclosure" under the GIPA Act.
Section 100 of the GIPA Act provides that a person aggrieved by a "reviewable decision" of an agency may apply to NCAT for an administrative review of that decision under section 9 of the ADR Act. It is common ground between the parties that it is the respondent's Notice of Decision dated 31 January 2020 (the Notice of Decision) that is the "reviewable decision" for the purpose of the application presently before the Tribunal for determination.

[5]

ADR Act - Legislative Scheme for Review

Section 63 of the ADR Act provides that in reviewing the decision of a respondent agency, the Tribunal may on application, undertake an administrative review of the decision and determine the correct and preferable decision, having regard to any relevant factual material before it.
In determining an application under section 63 of the ADR Act, the Tribunal may decide to affirm, vary or set aside the reviewable decision. In setting aside a reviewable decision, the Tribunal may make a decision in substitution of the reviewable decision or remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of Tribunal.
Section 63 of the ADR Act provides: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (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.
The time at which the Tribunal is to determine the correct and preferable decision is the time that the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].
Section 58 of the ADR Act requires the agency to lodge documents with the Tribunal 28 days after receiving notice of an application for review. Those "section 58 documents" documents must include the following: 1. A copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and 2. A copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and 3. A copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

[6]

GIPA Act - Legislative Scheme and Legal Principles for Review

As stated above, the applicant sought access to documents from the respondent under Section 9 (1) of the GIPA Act which relevantly states: "A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information".
In an administrative review under s 100 of the GIPA Act, there are several provisions of particular relevance to the Tribunal's consideration of the respondent's reviewable decision dated 31 January 2020.
Section 5 of the GIPA Act provides: "There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
Section 12 of the GIPA Act also provides that there "is a general public interest in favour of the disclosure of government information".
Section 14 (1) of the GIPA Act states: "It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1"
Clause 1 of Schedule 1 of the GIPA Act provides a "conclusive presumption" against disclosure of information prohibited by an overriding "secrecy law", which includes section 169A of the Police Act 1990 (NSW) (the Police Act). Section 169A of the Police Act prevents the disclosure of the identity of complainants except in certain defined circumstances.
In Betzis v Commissioner of Police [2020] NSWCATAD 71 the Tribunal held: "The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information" citing Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41].
For matters not coming within Clause 1 of Schedule 1 of the GIPA Act, section 13 sets out a "public interest test" which requires a determination of whether "on balance," there are public interest considerations against disclosure which outweigh the public interest considerations in favour of disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the "public interest test" under section 13 requires agencies to: 1. Identify the public interest in favour of disclosure; 2. Identify the public interest against disclosure with reference to the items listed in the Table to section 14 of the GIPA Act (the Table); and 3. Determine where the balance lies.
The Table at section 14 lists the matters that may be taken into account as "public interest considerations" against the disclosure of government information: section 14 (2).
Section 14 relevantly provides at Clause 1 of the Table, a public interest consideration against disclosure relating to "responsible and effective government" 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) and which then lists items (a) to (h).
Clause 3 of the Table is headed "Individual rights, judicial processes and natural justice" and also provides a public interest consideration against disclosure 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) and which then lists items (a) to (e).
It is only necessary that each of the considerations in the section 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance" - Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].
Section 55 (1) of the GIPA Act provides that in determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take "personal factors" into account. These are described as: 1. The applicant's identity and relationship with any other person; 2. The applicant's motives in making the access application; 3. Any other factors particular to the applicant.
Section 55 (2) provides that the personal factors of the applicant can be taken into account "in favour of" providing an applicant with access to information.
Section 55 (3) provides that personal factors of the applicant may be taken into account as matters against providing access if those factors are relevant to the agency's consideration of whether the disclosure of the information could reasonably be expected to have any of the effects referred to in Clauses 2 - 5 of the Table (but not under clauses 1, 6 or 7 of the Table).
Section 105 of the GIPA Act places the onus on the respondent agency to establish that its decision was justified. The respondent agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10].

[7]

Applicant's Submissions

The applicant filed three sets of submissions: a Submission on 8 April 2020, a Submission in Reply on 5 May 2020 and a Further Submission on 6 May 2020. The applicant relied upon an affidavit affirmed by him on 6 April 2020, which I received into evidence (without objection).
The applicant relevantly submitted that: 1. The respondent has certified the applicant's "psychological difficulties as hurt on duty"; 2. The psychological harm was caused by unjustified complaints made against the applicant which were maliciously motivated; 3. Examples in favour of disclosure under section 12 of the GIPA Act include information that could reasonably be expected to reveal or substantiate that an agency (or a member of the agency) has engaged in negligent conduct which, the applicant submitted, included conduct giving rise to a common law cause of action for personal injury under Parts 1 and 1A of the Civil Liability Act 2002 (NSW) (CLA); 4. The applicant was seeking access to documents to consider "the viability of any action potentially available to him, which may include a common law claim for personal injury" under the CLA; 5. The existence of a duty of care owed to the applicant by the respondent was part of a "broader" and "general public interest" which favoured disclosure based on the need for workers to be "protected against harm to their health, safety and welfare" and to be given "the highest level of protection against such harm" (citing section 3 of the Work Health and Safety Act 2011 (NSW) (WHS Act)). 6. A "personal factor" to be taken into consideration under section 55(2) of the GIPA Act is that at the time of his medical discharge, the applicant was earning approximately $200,000 gross per annum and because he remains under treatment by a psychiatrist and psychologist, an award of damages would likely to be "well in excess of $1 million"; 7. The applicant disputed the respondent's reliance upon overriding secrecy laws, in particular section 169A of the Police Act. This appeared to be on the basis that information was previously provided to the applicant during the course of "the first investigation" that comprised 46 witness statements from "complainants, witnesses and alleged victims". The applicant further submitted that "the second investigation" does not "attract the operation" of section 169A because it does not involve "any new complainant". 8. The applicant disputed the respondent's contention that investigations into police misconduct conducted under Part 8A of the Police Act ought not be disclosed on the basis that this involved the supply of confidential information to the respondent and disclosure would prejudice the effective exercise of the respondent's functions (Section 14 Table 1 items (d) and (f)). 9. The respondent's "Complaint Handling Guidelines, Professional Standards Command" while emphasising the need for confidentiality, recognised the right to procedural fairness at paragraph 4.5. The applicant submitted that "the confidentiality attaching investigations into Part 8A Complaints ought to be seen as qualified by the overarching requirements around procedural fairness, where applicable". 10. The applicant disputed the respondent's contention that disclosure would reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the respondent, in particular the functions of its Professional Standards Command (Section 14 Table 1 item (e)); 11. The applicant submitted in this instance, "the right to procedural fairness trumps matters of confidentiality".
In conclusion, the applicant contended that there was "a public interest in favour of disclosure" that outweighs the public interest against disclosure.
The applicant requested an order setting aside the respondent's decision dated 31 January 2020 and an order compelling the disclosure of the documents sought by the applicant.

[8]

Respondent's Submissions

The respondent filed a Submission on 10 March 2020 and a Submission in Reply on 29 April 2020. The respondent relied upon an affidavit marked "confidential" by Chief Inspector Marc Holgate, Professional Standards Manager, Professional Standards Command dated 10 March 2020 together with an "open" affidavit dated 29 April 2020. I received (without objection) the confidential affidavit of Chief Inspector Holgate dated 10 March 2020 under section 107 of the GIPA Act and the open affidavit dated 29 April 2020.
The Reviewable Decision dated 31 January 2020 relied upon six grounds set out in the GIPA Act to refuse disclosure. The same grounds formed the basis of the respondent's submissions to the Tribunal, namely: 1. Clause 1 of Schedule1 of the GIPA Act (referred to above), provides a conclusive presumption of an overriding public interest against disclosure of information that is prohibited by overriding secrecy laws, including section 169 A of the Police Act. 2. The respondent relied upon the public interest considerations in Table 1 items (d) and (f), namely that disclosure could prejudice: 1. The supply to an agency of confidential information that facilitates the effective exercise of the agency's functions (Table 1 (d)); and 2. The effective exercise of the respondent's functions (Table 1 (f)). 1. Under Table 1 item (e), disclosure could reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of the respondent. 2. Under Table 1 item (h), disclosure may prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results. 3. Under Table 3 item (a) "personal information" may be revealed by disclosing statements made by complainants or participants in a police investigation. 4. Under Table 3 item (b) disclosure may "contravenes an information protection principle [IPP] under the Privacy and Personal Information Protection Act 1998…" (PPIP Act).

[11]

Conclusive Presumption of an Overriding Public Interest Against Disclosure

Clause 1 Schedule 1 of the GIPA Act applies to information concerning the identity of a complainant in a document. As set out above, Clause 1 of Schedule 1 provides a conclusive presumption of an overriding public interest against disclosure of information prohibited by one of the specified overriding secrecy laws, one of which is section 169A of the Police Act. Section 169A provides: 169A Identity of complainant not to be disclosed A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made: (a) in accordance with guidelines established by the Commissioner; or (b) with the consent of the complainant; or (c) in accordance with a requirement of or made under this or any other Act; or (d) for the purposes of any legal proceedings before a court or tribunal.
I am satisfied that in respect of what the applicant has described as the "first investigation," during which he was provided with 46 statements including statements from complainants, witnesses and alleged victims, section 169A of the Police Act applies. Accordingly, there is a conclusive presumption of an overriding public interest against disclosure of that information.
It is irrelevant for the purpose of determining this administrative review under the provisions of the GIPA Act, whether during the earlier investigation process, the applicant was provided these statements or that he has became aware of the identity of complainants.
In relation to what the applicant has described as the "second investigation", the open affidavit evidence of Chief Inspector Holgate explains that this concerns "additional inquiries" undertaken by the respondent after the applicant was provided with material, referred to as being part of the respondent's procedural fairness obligations to the applicant. It does not matter that no new complainant was identified as part of that "second investigation" or those "additional inquiries".
The respondent's evidence is that the additional inquiries were conducted under Part 8A of the Police Act by the Professional Standards Command. I find that this information therefore remains subject to the overriding secrecy laws of section 169A of the Police Act.

[13]

Table 1 Items (d) and (f)

The respondent contends that in relation to item 1 (d) of the section 14 Table, the information is confidential and disclosure could prejudice the future supply of information to the respondent. In respect of both items 1 (d) and 1 (f), the respondent submitted that the withheld information facilitates the exercise of the respondent's functions, in particular the functions of its Professional Standards Command.
As to the issue of "confidentiality" under item 1 (d), I am satisfied for the reasons which follow, that the information is confidential on the basis of the test set out in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [65]: "... 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."
In Sheehy v Commissioner of Police (NSW) [2018] NSWCATAD 73, the Tribunal held that item 1 (d) applied to information obtained during investigation of a complaint under Part 8A of the Police Act.
The Tribunal has consistently affirmed the confidentiality of statements made by complainants to the Police for the purpose of items 1 (d) and 1 (f)) in the section 14 Table: see for example, Smith v NSW Police Force [2015] NSWCATAD 32; Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 10; DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114; DYD v Commissioner of Police [2019] NSWCATAD 265: also Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19.
The withheld documents relate to an investigation (called "Strike Force Blumenthal") by the respondent into alleged misconduct by the applicant following several confidential complaints made against him. These documents include statements made by complainants. In AEZ v Commissioner of Police (NSW) [2013] NSWADT 90, the Tribunal held that information in a witness statement is given in confidence and the usual practice of the police is to treat the statement as confidential unless and until it is required for use in court.
For that reason too as explained in the evidence of Chief Inspector Holgate, investigations into police misconduct are "sensitive". The evidence is that standard procedure of the respondent is to treat all information associated with a complaint, including the complaint itself, as "strictly confidential".
In relation to item 1 (f), the respondent submitted that disclosure of the information could reasonably be expected to prejudice the effective exercise of the respondent's functions. These functions include the investigation of complaints concerning alleged police misconduct.
Both items 1 (d) and 1 (f) bring into consideration the "effective exercise" of an "agency's functions".
I accept the respondent's evidence and submissions that investigations of the type under consideration which concern allegations of police misconduct is one of the functions of the respondent, particularly in relation to an investigation under Part 8A of the Police Act. I am satisfied that the withheld information relates to a Part 8A investigation.
The evidence of Chief Inspector Holgate deposed to the adverse impact on the integrity and effectiveness of Part 8A investigations if officers of the respondent and members of the public became aware that their identities and the information they provide could be disclosed to an officer the subject of an investigation. If that was to occur, officers would be less willing to participate in an investigation and it may also inhibit the openness of answers given by witnesses. Chief Inspector Holgate deposed that providing such information may lead to "reprisal action" against a complainant.
I accept the submission by the respondent under items 1 (d) and (f) of the Table that there is a significant public interest in favour of non-disclosure to preserve the effectiveness of the respondent's Part 8A investigative processes.

[18]

Public Interest Considerations in Favour of Disclosure

The applicant deposed in paragraph [43] of his affidavit that: "My motivation for seeking access to the documents in question is to consider whether I have any legal recourse for what I believe were (1) unfounded complaints made as retribution for managerial actions which were taken by me in my role as Commander at Port Stephens LAC [Local Area Command], and (2) whether the three (3) managerial findings made against me were justified".
The applicant's submissions assert that there is a public interest, having regard to the applicant's personal factors in seeking an award of damages under the CLA of "well in excess of $1million", to be taken into consideration under section 55 (2) of the GIPA Act as a factor in providing access.
I disagree. In any event, this factor is of very limited weight relative to the other considerations relied upon by the respondent and which I have accepted. Also, as the respondent submitted, access to government information "to advance a private pecuniary right to commence civil proceedings" (against the respondent) does not amount to a public interest under section 12 of the GIPA Act. While a private interest may highlight a public interest it does not constitute a public interest: JY v Commissioner for Police, NSW Police [2008] NSWADT 306.
The applicant submitted that disclosure is in the public interest to advance the administration of justice and in the litigation of issues associated with a duty of care owed by employers and based on the provisions of the WHS Act. Disclosure of the withheld documents for that purpose could only have very little (if any) effect in promoting that broader public interest. The prospects of success in any such litigation are unknown and it would be unsafe to infer that it is in the public interest to disclose information on the assumption that it is likely (or may) be relevant in any possible future litigation brought by the applicant against the respondent.

[19]

Denial of Procedural Fairness

As set out above, the applicant submitted: "the procedural fairness requirements attaching to the Part 8A complaint process where reviewable action is contemplated, trump other considerations."
It is unclear how this assertion of principle by the applicant fits with the legislative scheme and review process provided by the ADR and GIPA Acts. There are several reasons for rejecting this submission by the applicant in this particular case: 1. First, the GIPA Act governs the terms on which the applicant is entitled to access information held by the respondent. The decision by the respondent made under the GIPA Act is the decision presently under review by this Tribunal. Consideration of the requirements of procedural fairness can only apply to the process relevant to the making of that reviewable decision. It cannot include the subject-matter of those documents which are sought in an access application or to a decision made by the respondent outside the scope of the GIPA Act. 2. Secondly, there is no express statutory or implied common law right to procedural fairness in the way it has been claimed by the applicant. The applicant has raised procedural fairness as a purported ground to seek access to information withheld by the respondent but where the alleged denial of procedural fairness arises in respect of a decision that was made before and as part of an entirely separate and unrelated process to that undertaken as part of the decision-making process leading to the reviewable decision. 3. Thirdly, the procedural fairness required by the respondent's "Complaint Handling Guidelines, Professional Standards Command" in paragraph 4.5 referred to above and relied upon by the applicant, states: "the allegations (evidence adverse to the officer) and substance of any proposed adverse comment or finding must be disclosed to the subject officer before a final decision is made". This simply reflects the common law position. Also the "guideline" is directed to a different decision-making process by the respondent; namely a Part 8A investigation and not a reviewable decision made under the GIPA Act.

Rae v Commissioner of Police - [2020] NSWCATAD 189 - NSWCATAD 2020 case summary — Zoe

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (12)

Cited By (5)