The Applicant provided written submissions and annexed material which he submits supports his contention that the Respondent holds further information that relates to him and which falls within the scope of the access applications.
His case with respect to the redacted information is that the information is his personal information in that it concerns him. He says that it comprises information that was given to police by members of the public and that he should be able to know the details of who those individuals are and what they have said about him. He contends that this is essential so that he may receive a "fair go'.
The Applicant provided a number of documents in support of his contention that the Respondent should hold additional information that falls within the scope of his access applications. He noted that several of the Respondent's records listed him as a person of interest months before he committed his "index offence". This categorisation as a person of interest was due to threatening letters received by politicians and other public office holders that had apparently been sent by the Applicant. The Applicant contends that these records support an inference that the Respondent holds further information.
The Applicant provided a number of documents created by the Australian Federal Police ("the AFP") which suggest that he is a person of interest to the AFP and the Australian National Security Hotline. The Applicant contends that he would also be a person of interest to the NSW Police Force and, therefore, that the Respondent's Fixated Behaviour Unit would hold more files, records and documents that are responsive to his access applications.
The Applicant's documents appear to include file notes and reports created by the AFP, and correspondence between the AFP and Corrective Services NSW. These documents have not been created by the NSW Police Force.
The Applicant also provided a document that appears to be excerpts of a witness statement by a John William Edwards in the matter of: "Police v Saeed Sayaf Dezfouli Murder". The excerpts describe a number of letters sent to various politicians and public office holders. These letters appear to be the letters referred to in the identified information.
The Applicant contends that there are reasonable grounds to believe that the Respondent holds further information, responsive to the access applications, which relates to the additional material that he has provided.
[2]
Discussion
I have considered the unredacted material that the Respondent has provided. I am satisfied that the Respondent has accurately described the redacted information that is in issue and that the redacted information is personal information of the individuals concerned. The names of the individuals falls into this category. Similarly, where the identity of a person can be reasonably ascertained from the details and descriptions given, the redacted information is personal information of the individuals concerned.
I am satisfied that disclosure of the redacted information could reasonably be expected to reveal the individuals' personal information.
This is a public interest consideration against release.
In the circumstances, it is my view that significant weight should be given to this consideration. As noted, the information includes details relating to the identities of witnesses, victims, the families of the victims and the medical status of victims, of the Applicant's conduct. I am satisfied that the information was gathered by police officers in the exercise of their investigative functions and because of the circumstances in which it was gathered, it is highly personal and sensitive to each individual.
It is necessary to balance the public interest considerations in favour of release against this consideration. There is a general public interest in favour of the disclosure of government information. The fact that the information is relevant to the Applicant to the extent that the individuals concerned provided evidence about the Applicant is also a consideration in favour of release of the information. However, I note that he Applicant has been given the majority of the information held by the Respondent. He is therefore aware of most of the information that was provided by the individuals concerned. I am not satisfied that significant weight should be given to these considerations in favour of release of the information.
I am also satisfied that disclosure of the information could reasonably be expected to contravene an information protection principle. The disclosure of the redacted personal information would contravene section 18 of the PPIP Act, as none of the conditions for permitted disclosure under 18(1) of the PPIP Act would apply.
I agree with the Respondent's argument that the release of the redacted information would not benefit the public or promote government accountability. In my view, the public interest considerations against release of the redacted information outweigh those in favour of its release.
In regard to question of whether there is a public interest against disclosure in the terms of clause 3(f) of the Table to section 14, I have formed the same view as that formed by Senior Member Ransome in Dezfouli v Justice Health & Forensic Mental Health Network.
I am satisfied that the Applicant's previous behaviour means that there is a risk of serious harassment or intimidation to individuals, if their names or other identifying information were to be released. It is highly likely that the Applicant would seek to communicate directly with those individuals concerned. It is also highly likely he would make offensive comments about them and issue threats of violence towards them. In my view the Applicant's past behaviour strongly indicates that it is likely that he would engage in serious harassment or serious intimidation if the identities were known to him. There is a material risk that the individuals concerned would be seriously harassed or intimidated by the Applicant.
In my view the disclosure of the names or other identifying information of the individuals concerned could reasonably be expected to expose those persons to a risk of serious harassment or serious intimidation and that, on balance, there is an overriding public interest against the disclosure of that information pursuant to clause (3)(f) of the table to s 14 of the GIPA Act.
I accept the evidence of Senior Sergeant Reid of the searches that he conducted of the Respondent's data bases. I am satisfied that the searches were reasonable and that if the Respondent held other information falling within the scope of the access applications it would have been identified by the searches.
I am not satisfied that the additional material that the Applicant has provided establishes reasonable grounds to believe that the Respondent holds further documents relevant to the access applications. As noted, the additional documents were not created by the Respondent and they make no reference to information held by the Respondent.
I accept that it may be reasonable for the Applicant to believe that as a person of interest to the AFP he would also be a person of interest to the NSW Police Force. However, it is also reasonable to believe that with the passage of time the level of interest would decrease. Even if the Respondent previously held further information, the evidence suggests that it is no longer the case. The more likely explanation is that the Respondent did not ever hold further information. In any event. on the evidence before me, there is no reason to believe that further information responsive to the access applications is held by the Respondent.
In the circumstances I am satisfied that the Respondent has identified the information that it holds that is responsive to the access applications. The majority of that information has been released. The public interest considerations against release of the information that has not been released outweigh those in favour of release. It follows, in my view, that the decisions under review should be affirmed.
[3]
Orders
1. The decisions under review are affirmed.
[4]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 November 2018
Parties
Applicant/Plaintiff:
Saeed Dezfouli
Respondent/Defendant:
NSW Police Force
Cases Cited (10)
Applicable legislation
The task of the Tribunal is to determine the "correct and preferable decision": section 63 of the Administrative Decisions Review Act 1997.
The approach to be taken in applications under the GIPA Act has been considered in numerous cases before this Tribunal. For a recent consideration see the discussion by Senior Member Perrignon in Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139.
The objects of the Act are set out in section 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.
The Tribunal is to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. Pursuant to section 5 of the GIPA Act there is a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. In accordance with section 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.
Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) further provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure.
Pursuant to section 13 of the GIPA Act, there will only be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The table to section 14 sets out the relevant public interest considerations against disclosure. The only factors that can be taken into account are those referred to in section 14 of the GIPA Act. Section 14 provides that -
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Section 55 of the GIPA Act provides for consideration of personal factors of the application. It states:
55 CONSIDERATION OF PERSONAL FACTORS OF APPLICATION
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the
"personal factors of the application" ) into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
…
Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision.
Clause 4 of Schedule 4 to the GIPA Act provides:
4 PERSONAL INFORMATION
(1) In this Act,
"personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.
(3) Personal information does not include any of the following:
(a) information about an individual who has been dead for more than 30 years,
(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,
(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.
The Agency relies on several clauses of the table to section 14 of the GIPA Act. These include clauses 3(a), 3(b) and 3(f) of the table, which provide:
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
...
(f) expose a person to a risk of harm or of serious harassment or serious intimidation
…
The Administrative Decisions Tribunal Appeal Panel considered the approach to be adopted in GIPA Act matters in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19. The Appeal Panel stated, at paragraphs [24] - [26]:
24. Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.
25. The new Act has a more structured approach to the decision-making task than was seen under the previous legislation. The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.
26. We agree with the agency's submission that the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case.
"Could reasonably be expected…"
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 effects identified in the table to section 14 of the GIPA Act. The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35] - [36] and the cases there cited.
The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way:
In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at paragraph [106].
The word "prejudice" is given its ordinary or everyday meaning, being "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
Searches for information
The Applicant contends that the Respondent holds more information than it has identified. He says that there are reasonable grounds to believe that there are further documents relevant to the access applications and that the Respondent has not used its best endeavours to locate them. The Respondent maintains that it does not hold other information relevant to the access applications.
Where an agency identifies information that it holds and provides or refuses access to that information but does not make an explicit decision that it holds no further information, it can be implied that the agency has in fact made a decision that it holds no further information relevant to the access application: see Robinson v Commissioner of Police [2014] NSWCATAP 73 at paragraph [8].
The Tribunal has consistently adopted a two-stage approach to determining whether an agency has conducted an adequate search. This applies the approach adopted by the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464. The approach is to consider:
1. Whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and, if so,
2. Whether the search efforts made by the agency to locate such documents have been reasonable in all of the circumstances of a particular case.
Reveal an individual's personal information (clause 3(a)) and contravene an information protection principle (clause 3(b))
The Respondent submits that the names redacted throughout the COPS Event Reports are personal information of the individuals concerned. They are information about an individual and the disclosure of the names would have the result of the identity of the individuals becoming apparent. Accordingly, disclosing the names could reasonably be expected to disclose an individual's personal information.
The Respondent also submits that the redacted passages in Event Ref E 43344573, on pages 6-9 of the identified information also constitute personal information. The redacted portions of this event relate to the investigation of a person of interest in relation to alleged threatening phone calls made to the Anti-Discrimination Board of NSW. The redacted information records personal details about the person of interest and other people connected to the person of interest. The Respondent also submits that the identity of the person of interest could be reasonably ascertained from the details and descriptions given by the police officers.
The Respondent submits that the redacted passages in Event Ref E 13389372, on page 49 of the identified information are also personal information recorded by a police officer. The information discloses the witness's name, describes the witness's personal circumstances, and records the witness's personal recollection of events. The Respondent submits that a person's account of events constitutes personal information about that person: see Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 at paragraph [40].
The Respondent submits that the redacted passages in Event Ref E 13389372, on pages 53 and 54 of the identified information, constitute the personal information of victims. The information includes details relating to the identities of the victims, the medical status of victims, and the families of the victims.
The Respondent submits that there is a public interest against the disclosure of this information, as it could reasonably be expect to reveal the personal information of the individuals concerned. It further submits that the information is highly personal and sensitive to each individual, and was gathered by police officers in the exercise of their investigative functions. It is submitted that the personal and sensitive nature of this information means that the public interest against disclosure should be given significant weight, and should outweigh any public interest in favour of disclosure.
The Respondent acknowledges that some of the information is also the personal information of the Applicant. However, it contends that where the personal information of an applicant becomes entangled with highly personal and sensitive information of others, the interest against disclosing others' personal information outweighs the public interest in the applicant's personal information being released. In support of this submission it relies on views expressed by Judicial Member Molony in Gee v Department of Education and Communities [2014] NSWCATAD 7 at paragraphs [90] and [98].
In Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11 Senior Member Ransome considered the meaning of the terms "harm", "harassment" and "intimidation" for the purposes of clause 3(f)) of the GIPA Act. She reviewed a number of decisions that had discussed this provision and stated at paragraphs [25] - [29]:
25. Harm, harassment and intimidation are not terms that defined in the GIPA Act and must be given their ordinary meaning. These terms were considered by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 and adopted in CJO v NSW Police Force [[2016] NSWCATAD 262].
26. The Macquarie Dictionary defines "harm" to mean injury, damage, hurt, moral injury, evil, wrong. The Tribunal in AEZ considered that "harm" in the context of clause 3(f) means "a real and substantial detrimental effect on a person" which may have a detrimental effect on their "physical, psychological or emotional wellbeing".
27. The Macquarie Dictionary defines "harass" to mean to trouble by repeated attacks, or disturb persistently. "Intimidate" is defined to mean to make timid or inspire with fear. In AEZ the Tribunal stated that a person who is harassed would be offended, humiliated or intimidated by the conduct in the circumstances. Harassment requires a consideration of whether the person alleged to be harassed was offended, worried, tormented, distressed or harassed by the conduct.
28. Citing PE v MU [2010] NSWDC 2, the Tribunal in AEZ noted that harassment is ongoing behaviour that is found to be threatening or disturbing and intimidation is conduct such as would cause a person to fear for their safety.
29. The requirement that the intimidation or harassment be serious means that the decision maker must be satisfied that the release of the information could reasonably be expected to expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient" (AEZ at [94]).
I agree with those views.
The Respondent further submits that the nature of the information means it would be difficult to consult with the individuals concerned as to whether they would permit their personal information to be released. Further, the context and circumstances surrounding the COPS Event Reports may be a confronting and uncomfortable experience for those individuals.
In addition, it is submitted that the disclosure of the redacted personal information would contravene section 18 of the PPIP Act, as none of the conditions for permitted disclosure under 18(1) of the PPIP Act would apply.