Salfus v Commissioner of Police, NSW Police Force

Clause 1(d) of the Table to s 14(2) of the GIPA Act.

1. This provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
2. To determine whether information was obtained in confidence by an agency, the Appeal Panel in Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19, stated that this question "is to be examined by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received": at [33].
3. In this regard, settled practises that information provided to police carrying out law enforcement and investigative functions by victims, suspects and witnesses, is kept confidential unless charges are laid. The NSW Police Force "Customer service Charter" (available online) Requires police to maintain the confidentiality of information received from members of the public. Further, clause 76 of the Police Regulation 2015, requires that a police officer must treat all information which comes to their knowledge in their official capacity as strictly confidential, and on no account without Proper authority divulge it to anyone.
4. In relation to the issue of whether disclosure of the information could reasonably be expected to prejudice the supply of such information to the agency in future. Come up there, responded noted that in Simring, The Supreme Court held that, "When a person speaks with the police in respective a criminal offence and reveal sensitive matters, that person expects that statements will only be used for the purpose of the court proceedings and not otherwise... There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of the criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the [GIPA Act], those sources of information may well dry up, or at least there could be a reduction in the flow of information available to the police." (at [69]).
5. The respondent was satisfied that the disclosure of information of the kind requested could result in a breach of trust, and therefore sources of information could dry up. It was also satisfied that the investigative and law enforcement functions of the agency could reasonably be expected to be prejudiced if the expectation of confidentiality in such circumstances is not maintained. Its policing functions rely upon the provision of information of the kind at issue in order to effectively exercise its investigative and law enforcement functions.

Clause 3(a) to the Table in s 14(2) of the GIPA Act

1. Clause 3(a) provides that series of public interest consideration against the disclosure of information that would reveal an individual's personal information. The information withheld under this clause contains information, opinions, images, and voices of and about other individuals whose identity is apparent or can reasonably. Be ascertained from each. It is therefore personal information as defined in cl 4 of sch 4 of the GIPA Act. Insofar as it includes opinion, the withheld information goes beyond revealing more than the fact that the officers were engaged in the exercise of public functions. This is because information that an officer expressed a certain opinion about falls within the definition of "personal information" either because the information is about the officer or because it is the officer's opinion about an individual.
2. "Reveal" is defined in cl 1 of sch 4 to mean to disclose information that has otherwise not been publicly disclosed. In Commissioner of Police (NSW) v Field [2016] NSWCATAP 59, the NCAT Appeal Panel held that personal information is only revealed when it is publicly disclosed. In DQN v University of Sydney [2019] NSWCATAD 159 (DQN), the Tribunal held that even if an applicant is aware of the name of a third party, the information would not be considered to have been "revealed" where there is no evidence that the information has been publicly disclosed.
3. In Woolley v Lismore City Council [2013] NSWADT 10, the Administrative Decisions Tribunal considered that information about the identity of a particular individual would be "revealed" where there was no evidence the information had been publicly disclosed, despite the fact that the applicant was aware of the individual's identity.

Balancing the public interest considerations.

1. The respondent identified the public interest considerations in favour of disclosure of the information and the relevant personal factors of the application, including the applicant's motive for making the application (which he claimed was a personal interest). It gave some weight to the considerations in favour of disclosure, But gave greater weight to the considerations against disclosure. It concluded that there is an overwhelming public interest in agencies maintaining the confidentiality of personal information and that the community would not expect personal information to be released in response to an access application under the GIPA Act.

Application for administrative review

1. On 6 December 2022, the Tribunal received the current application for administrative review, which raised the following grounds: Reductions have occurred incorrectly. Page 3 "1D" redaction of the victim statement. This is not subject to a "1D" reduction. Cue to the fact that it is the subject of the complaint slash/inquiry. Page 4 "ID" redaction of Police statement, this is not subject to a "ID" redaction due to the fact that it is a statement by police and not the victim. The Fraud Report form part 7 "1D". This is not subject to a "1D" Reduction due to the fact that it is the form requesting police involvement. And as such, the victim would know that not (sic) confidentiality would exist. The internal review by police provided addition information in this area but not all.

Procedural matters

1. Senior Member Perrignon conducted a case conference on 7 February 2023, at which the applicant appeared in person and the Crown Solicitors Office appeared for the respondent. He made the following orders: 1. The decision by Commissioner of Police, NSW Police Force to release certain documents with redactions made on 17 November 2022 is returned to Commissioner of Police, NSW Police Force for reconsideration. By 27 February 2023, the Commissioner of Police, NSW Police Force is to tell the Tribunal and all other parties whether the decision has been affirmed, varied or set aside and, if there is a new decision, to file and serve the same. 2. The preceding is listed for case conference on 13 March 2023... by phone at which the applicant is to inform the tribunal whether he wishes to proceed with the application.

Respondent's reconsideration decision

1. On 27 February 2023, the respondent issued its reconsideration decision pursuant to the Tribunal's orders dated 7 February 2023, as follows: The Commissioner of Police, NSW Police Force has determined to vary the decision of 17 November 2022 by updating it to take account of the further information released to you on 3 February 2023. The further information was previously redacted from the information released to you pursuant to the decision of 17 November 2002 at Infolink page numbers 4, 5 and 12. In all other respects, the Commissioner continues to rely on her reasons for decision of 17 November 2022, including as to the public interest considerations in favour of disclosure and the public interest considerations against disclosure. And the balance of public interest considerations explained therein.
2. Senior Member Montgomery conducted a further case conference on 13 March 2023. The applicant failed to appear but the Crown Solicitor's Office appeared for the respondent. He made the following orders: 1. By 20 March 2023, (the applicant) Is to advise the tribunal and V Commissioner of Police whether he is continuing the application or withdrawing the application. If the matter is to continue, the following timetable is to apply: 2. Honour before 17 April 2023, Commissioner of Police, NSW Police Force, is to give to the Tribunal and (the applicant) the following material: evidence including statements, documents and submissions. 3. On or before 8 May 2023, (the applicant) is to give to the Tribunal and the Commissioner of Police, the following material: evidence, including statements, documents and submissions. 4. On or before 15 May 2023, the Commissioner of Police, NSW Police Force is to give to the Tribunal and (the applicant) he following material: all evidence in reply, submissions and a summary of legal arguments. 5. The proceeding is listed for directions on 16 May 2023… to set a hearing date or determine whether the application can be determined on the papers.
3. Senior Member Gatland conducted a directions hearing on 26 June 2023, at which the Crown Solicitor's Office appeared for the respondent. However, the applicant failed to attend. The Senior Member listed the matter for hearing on 26 June 2023 and noted that if the applicant was unable to attend on the hearing date, he is at first instance to confer with the respondent's representatives and then approach the Registry with a joint application as soon as possible.
4. However, on 20 June 2023, Principal Member Simon ordered that the hearing take place in Sydney as the respondent relied on confidential documents.

The hearing

1. The matter came before me for hearing on 26 June 2023. The applicant appeared in person and Ms Johnston appeared for the respondent. There was no appearance by or on behalf of the Information and Privacy Commissioner.
2. Ms Johnston argued that the reviewable decision is that dated 17 November 2022, as varied upon reconsideration on 27 February 2023. I note that the applicant did not dispute this.
3. Ms Johnston also stated that the only remaining dispute concerns Part 7 of the narrative contained in the Fraud Report Form, which is located at page 20 of the Respondent's Bundle of Documents.

The respondent's evidence

1. The respondent relied upon an affidavit of Senior Constable Comber dated 5 April 2023.
2. The Tribunal noted that the applicant required the Senior Constable to attend for the purposes of cross-examination and that he was granted leave to appear by AVL. The affidavit was admitted and marked Ex A.
3. The Respondent also tendered its Bundle of Documents, which was admitted and marked Ex B.

Respondent's opening argument

1. Ms Johnston stated that the scope of the dispute before the Tribunal is narrow and it concerns the application of the public interest test with respect to pages 12 and 13 of the document found at Tab 1 of the Bundle. Information has been redacted on five grounds, namely cll 1(d), 1(f), 1(g), 3(a) and 3(b) of the Table to s 14(2) of the GIPA Act, as the withheld information is personal information that was provided in confidence to NSW police.
2. Ms Johnston noted that the applicant appeared to dispute that there was an expectation of confidentiality.

Applicant's opening argument

1. The applicant stated that he accepts that the police report will contain confidential and sensitive information, but he does not understand why that would include the narrative in the Fraud Report Form. He argued that he has been the person investigated with respect to domestic violence and fraud complaints, all of which have been dismissed, and said that he relies upon s 18(1)(c) of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIPA).
2. The applicant conceded that there is no case law that supports his argument, but he also stated that he cannot get police to do anything to "stop all of this" unless he is able to obtain "this evidence".

Evidence of Senior Constable Comber

1. In Ex A, Senior Constable Comber deposed that she has been the Domestic Violence Officer in the Hawkesbury Police Area Command since March 2019. Her primary duty and responsibility is the investigation of domestic violence matters. She reviews domestic violence events daily to ensure that officers are complying with legislation and policy. She liaises with numerous government and non-government agencies regarding victim protection and investigations, and she liaises with victims of violence so that they understand the investigation process as well as other members of the general public.
2. Senior Constable Comber stated that she has been advised that the applicant made a GIPA request in October 2022, seeking access to information relating to a particular COPS event report, which related to fraud allegations made against him by his former partner. She did not have any personal involvement in that investigation. However, she was advised that in response to the GIPA request, the respondent decided to release some information and to refuse access to other information. She therefore reviewed the information that was contained in the respondent's confidential bundle of documents, and specifically the redacted information at pages 12 and 13 of the respondent's bundle (pages 3-4 of the fraud report form).
3. Senior Constable Comber stated that it is apparent to her that pages 3 and 4 of the fraud report form contains information that was supplied to NSWPF by a member of the public to assist with the commencement and progress an investigation, and which was provided by that member of the public with an expectation of confidentiality. She would not expect information of that nature to be publicly released.
4. Based upon her experience in managing and dealing with information held by the NSWPF, and investigating matters as a serving police officer, Senior Constable Comber deposed that it is her belief that individuals who supply information to police officers for the purpose of an investigation usually have an expectation that the information will be maintained confidentially. Members of the public often express concern about the confidentiality of the information that they are supplying, and officers will give assurances of confidentiality to encourage members of the public to provide information. Even where that assurance is not explicitly provided, in her opinion it is usual to preserve the confidentiality of that information, except to the extent that disclosure is necessary for the purpose of an investigation or legal proceedings.
5. The regulatory framework within which the NSWPF operates is consistent with the community expectation of confidentiality. NSWPF officers are subject to reg 76 of the Police Regulation 2015 (the Regulation), which requires that members of the NSWPF treat all information which comes into their knowledge in their official capacity as strictly confidential, and that they are not to disclose confidential information without proper authority. The NSWPF Code of Conduct and Ethics also emphasises the importance of preserving the confidentiality of information.
6. The Fraud Report Form itself has a banner which is titled "Privacy & Confidentiality Notice" on page one. It states that the information in the document is intended for the NSWPF only. The Senior Constable asserted that members of the public providing such information would take that assurance at face value and expect that the information provided in that Form will be kept confidential by the NSWPF.
7. The NSWPF is dependent on the willingness of members of the public to cooperate with it, including by providing information to assist it with investigations and other police functions. It is generally recognised within the NSWPF that such cooperation depends on the expectation that information provided to it will be kept confidential, and on the fact that members of the public trust the NSWPF to do that. This expectation of confidentiality and trust applies across all matters, regardless of the apparent seriousness of the information, of the police investigation, or the part of the NSWPF that is dealing with the information.
8. In particular matters, there might be a heightened need for sensitivity and confidentiality. Senior Constable Comber stated that in her experience working for the NSWPF, she is aware that information provided to the NSWPF is often extremely sensitive for a range of reasons. The release of information in breach of the confidentiality expectation that usually attaches to information provided to the NSWPF can breach peoples' privacy, cause embarrassment, and potentially expose a person to physical and psychological harm or to significant consequences in their lives. It can also be very unpredictable how people will react to the release of information.
9. Sometimes information that appears to be innocuous or insignificant can actually have serious consequences, or the whole context in which it might play a role might not be known when the information is released. This can often be the case in relation to matters involving the supply of information about domestic partners, or former domestic partners.
10. In those cases, additional sensitivities often arise and it can be difficult to understand the whole context and circumstances in which a piece of information might be significant. In family relationships, generally and particularly in the case of a domestic or former domestic partner, there can be a degree of unpredictability about the effect of the public release of a piece of information. In those sorts of matters, her experience is that members of the public often face some complex emotional obstacles when deciding to approach police and to participate in an investigation involving information about their family members or former family members.
11. There is also often a broader context in which the information might play an unknown part and it is crucial to the ability of the NSWPF to function effectively that members of the public trust that the information they provide will be kept confidential and not discussed with persons outside the NSWPF investigation team, including, and often especially, that it will not be disclosed to the domestic partners or former domestic partners, except to the extent necessary to progress and investigation.
12. Any reduction in the number if allegations and reports made to police, or in the willingness of members of the public to cooperate with an investigation, would negatively impact the ability of police to exercise their investigative and law enforcement functions. Further, the release of information supplied to NSWPF in matters involving domestic partners, or former domestic partners, has the potential to exacerbate existing tensions or disputes.
13. In cross-examination, the applicant asked if the witness was involved in answering the GIPA request? She replied "No", but that reviews all complaints that come into Hawkesbury LAC that are domestic-related.
14. The applicant did not ask the witness any further questions and she was excused from further attendance.

Confidential Documents

1. The respondent lodged a confidential bundle of the documents, without redactions, with the Tribunal. However, it did not rely upon any separate evidence of a confidential nature.
2. The Tribunal considered that it was appropriate for it to peruse the confidential documents in Chambers, rather than conducting a confidential hearing in the applicant's absence under s 107 of the GIPA Act, and to then determine the issue of confidentiality of the withheld information "on the papers" under s 50 of the NCAT Act.
3. As required by s 50 of the NCAT Act, the Tribunal raised this with the parties and neither objected to the proposed course of action.

Respondent's written submissions

1. The respondent filed written submissions on 17 April 2023.
2. As to the relevant legal principles, the respondent stated that 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 of the GIPA Act unless there is an overriding public interest against disclosure of the information: s 9(1). The Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5, And that an agency may refuse to provide access to information where there is an overriding public interest against its disclosure: s 58(1).
3. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), the Appeal Panel of the Administrative Decisions Tribunal described the approach to determining whether there is an overriding public interest against disclosure for the purposes of the GIPA Act as follows: 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 them was saying under the previous legislation. The agency case for refusal must rely on one or more of the s 14 Table Considerations. The tribunals 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 proceeds in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government.
4. The public interest considerations in favour of disclosure are addressed in s 12 of the Act. Section 12(1) Provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that an agency is not limited in what other public interest considerations against disclosure of government information may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure. The note to s 12(2) provides some examples of public interest considerations in favour of disclosure.
5. The public interest considerations against disclosure are set out exhaustively in the Table to s 14(2) of the Act and these are the only considerations against disclosure that may be taken into account when applying the public interest test under s 13. The considerations against disclosure in the Table arise where disclosure "could reasonably be expected" to have one or more of the stated effects set out in the various clauses.
6. The phrase "could reasonably be expected to" has been subject to extensive judicial consideration, including in the context of the former Freedom of Information Act 1989 (NSW) and the currently in force Freedom of Information Act, 1982 (Cth).
7. In Attorney-General's Department v Cockcroft (1986) 10 FCR 180, Bowen CJ and Beaumont J held, at 190, that the words: Require a judgement 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 kinds to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation in terms of probabilities or possibilities or the like.
8. In Leech v Sydney Water Corporation [2010] NSWADT 298 (Leech), the Administrative Decisions Tribunal observed, at [25], that: The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. 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.
9. The Tribunal has repeatedly approved this passage from Leech when construing the Table to s 14(2) of the Act. These authorities have established that the public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This ultimately is a question of fact, to be determined on the balance of probabilities.
10. In Transport for NSW v Searle [2018] NSWCATAP 93, the Appeal Panel held that the Tribunal erred in setting an overly demanding evidentiary standard by requiring the agency to adduce specific evidence in order to satisfy the standard of "could reasonably expected". The Appeal Panel stated (at [63]): In our view, this did not accord with an ordinary weighing of the material before the Tribunal of the kind set out in paragraphs 66 to 87 below which would give prominence to inferences drawn from the objective and otherwise established facts rather than the subjective views of witnesses, including the considered and understandable confidentiality to the process, the rationale for such confidentiality and the natural implication for future supply if such confidentiality was to be undermined.
11. The decision in this matter relied upon 5 separate public interest considerations against disclosure. For these to be established, the Tribunal must be satisfied that disclosure of the withheld information could reasonably be expected to: 1. Prejudice is supplied to an agency of confidential information that facilitates the exercise of the agency's functions; cl 1(d); 2. Prejudice the effective exercise by an agency of the agencies functions: cl 1(f); 3. Result in the disclosure of information provided to an agency in confidence: cl 1(g); 4. Reveal an individual's personal information: cl 3(a); or 5. Contravene an information protection principle under the PPIPA: cl 3(b).
12. Two of these public interest considerations refer to a reasonable expectation of prejudice arising from the disclosure of information. The term "prejudice" is given its ordinary meaning, that is to "cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
13. The respondent argued that in applying these principles to this matter, the Tribunal must identify what public interest considerations in favour it considers applies and make findings as to the weight to be attributed to them: Snape v Commissioner of Police (No 2) [2022] NSWCATAP 244, at [41]-[43]; Bailey v Commissioner of Police [2023] NSWCATAP 103, at [91-[92].
14. The respondent acknowledged that the release of the requested information could reasonably be expected to: 1. enhance the accountability of the respondent as a government agency; and 2. inform the public about the operations of the respondent as an agency.
15. Also, it is personal information of the applicant and certain personal factors can also be taken into account as factors favouring disclosure, consistent with s 55 of the GIPA act. Relevantly, the applicant's stated motive for making the access application is "personal interest". The respondent acknowledged that the applicant has a legitimate interest in the information relating to allegations made against him by his former domestic partner, and that this is a factor that favours disclosure.
16. The respondent argued that the public interest in this matter has been substantially met by the provision of information to the applicant in response to the GIPA request. The public interest in disclosing the withheld information is minimal and these considerations should therefore be given lesser weight in applying the public interest test.

Cl 1(d) of the Table to s 14(2)

1. The respondent relied on the decision in Sherman v Commissioner of Police, NSW Police Force [2016] NSWCATAD 107, in which the Tribunal summarised a number of principles that are relevant to the application of cl 1(d) in a law enforcement context. The Tribunal stated: (1) In Simring v Commissioner of Police [2009] NSWSC 270 at [69] it was said: When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up, or at least there could be a reduction in the flow of information available to the police. (2) In McMahon v Director-General, Department of Fair Trading [2003] NSWADT 164 at [25], it was said: In respect of determining whether disclosure of the information would "prejudice" the future supply of such information to the agency, it is well established that the test is not whether the particular confider whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in future. The test is whether the agency will be able to obtain such information in the future (see Ryder v Booth [1985] VR 870 at 872 and Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at 341). (3) In Director-General, Department of Education of Training v Mullett [2002] NSWADTAP 13 at [58], it was said: … cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: `The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' (4) In Martin v Commissioner of Police [2005] NSWADT 23 at [45] (Martin), it was said: In determining whether disclosure of information obtained in confidence could "reasonably be expected to prejudice future supply of such information", the question is not whether the confider of the information in question would in future refuse to supply such information to the agency. It is question as to whether disclosure of the information could reasonably prejudice future supply of this type of information from those sources that are available or likely to be available to the agency (see Re B (1994) 1QAR 279 at 341).
2. In Camilleri, the Appeal Panel held (at [33]-[34]), that the question as to whether information is confidential information for the purposes of cl 1(d) is "to 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" and "should focus on the point of receipt, and the administrative standards and community understanding which surrounded it".
3. In this matter, the withheld information was received directly from a member of the public who completed the Fraud Report Form to report, and commence the investigation of, an alleged fraud. The Fraud Report Form is to be completed by members of the public and is on official NSW Government and NSWPF letterhead. It states, in a bolded capitalised heading banner at the top of the form: "PRIVACY AND CONFIDENTIALITY NOTICE" and it continues: The information contained within this document and any attachments is intended for the NSW Police Force only and should not be communicated to any third party. If you are not the named recipient, please return this document to any police station. You have been provided with a Fraud Report Form to assist with the reporting of fraud offences to their NSW Police. The information provided will assist us in determining the best way to process your report. Please ensure the information provided is accurate, to the best of your knowledge and belief. Your report will be recorded on the police computer system and a reference number provided. One of the main roles of the NSW Police Force is to detect, investigate crime and prosecute offenders... Police will determine whether an investigation should be continued based upon the nature and circumstance so the offence, the chances of solving the crime, victim needs and community needs... The NSW Police Force plays a vital role in responding to and providing support for victims of crime…
4. There is also a header and footer on each page of the Fraud Report Form "For Official Use Only".
5. It is apparent from the face of the form that it is an issue of policy and practise to treat information supplied in connection with reporting of a fraud as confidential. The respondent argued that on its face, the Form would give rise to an expectation of confidentiality on the part of the person completing it for the purpose of reporting an alleged fraud and possible crime.
6. Further, Senior Constable Comber gave evidence that when members of the public approach the NSWPF and provide information, for the purpose of making a report, or assisting with an investigation, there is an expectation that the information supplied will be maintained confidentially. She deposed that her experience is that members of the public often express concern about the confidentiality of the information they are supplying, and that officers will give assurances of confidentiality to encourage the provision of information. She stated that the usual practise is to preserve the confidentiality of such information, except to the extent that disclosure is necessary for the purpose of an investigation or legal proceedings.
7. The respondent argued that both Senior Constable Comber's evidence and the Fraud Report Form support a conclusion that the withheld information is confidential information, provided to the respondent in a context in which there was an expectation of confidentiality. This is consistent generally with the NSWPF's Code of Conduct and Ethics and cl 76 of the Police Regulation 2015, which requires a member of the NSWPF to treat all information that comes into his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority to divulge it to anyone.

Clause 1(f) of the Table to s 14(2)

1. In relation to cl 1(f) of the Table to s 14(2) of the GIPA Act, the respondent relied upon Senior Constable Comber's evidence that disclosure of information supplied to the NSWPF in matters involving domestic partners, or former domestic partners, has the potential to exacerbate existing tensions or disputes.
2. Any exacerbations of tensions arising from the release of such information would be contrary to the NSWPF objectives of maintaining peace and good order and preventing incidents requiring a law enforcement response. This is a further basis for finding that disclosure of the withheld information could reasonably be expected to prejudice the effective exercise of NSWPF functions and therefore, cl 1(f) should be given significant weight.

Clause 1(g) of the Table to s 14(2)

1. The respondent argued that cl 1(g) applies as a further consideration against disclosure and that it should be given considerable weight, having regard to the context and circumstances in which the information was supplied.

Clause 3(a) of the Table to s 14(2)

1. "Personal information" is defined in cl 4(1) of Sch 4 of the Act to mean "information or an opinion… about an individual… whose identity is apparent or can reasonably be ascertained from the information or opinion". The word "reveal" is defined in cl 1 of Sch 4 to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure".
2. It is apparent that the withheld information is personal information of a third party and that it contains information and opinions, of and about, a third party whose identity is apparent. The information has not otherwise been revealed in the sense that it has not already been publicly disclosed.
3. The respondent argued that this is a weighty public interest consideration against disclosure because of the inherent sensitivity of the information and the circumstances in which it was provided to police (as a confidential report to NSWPF). While the third party has not been consulted, it would be reasonable to infer that they would object to the disclosure of the information of this nature to the applicant.
4. The fact that disclosure cannot be made subject to any conditions on the use or disclosure of the information in issue is a further factor that adds weight to cl 3(a). In addition, the identity of the applicant, and his relationship with the third party, is a personal factor under s 55(a), which adds weight to cl 3(a) as a relevant consideration against disclosure.

Clause 3(b) of the Table to s 14(2)

1. After setting out s 18 of the PPIPA, the respondent stated that disclosure of the withheld information would contravene the prohibition against its disclosure in s 18(1), and it would not fall within any of the categories of permitted disclosures provided within that Information Privacy Principle. Specifically: 1. Disclosure under the GIPA Act is not directly related to the purpose for which the information was collected (that is, in connection with a report of alleged fraud) and, given the nature of the information and the circumstances in which it was supplied, it would be expected that the individual concerned would object to the disclosure; 2. In circumstances where the information was supplied confidentially to the NSWPF, the individual concerned would not have been aware, nor was the individual notified in accordance with s 10 of the PPIPA, that information of this nature would usually be disclosed to an applicant under the GIPA Act; and 3. There is no basis for a reasonable belief that disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual or a concerned person.
2. Accordingly, the respondent argued that cl 3(b) is a weighty consideration against disclosure of the withheld information.

Balancing the Public Interest

1. The respondent argued that the considerations against disclosure outweigh those in favour of disclosure and that the correct and preferable decision for the Tribunal to make is to refuse access to the withheld information and to affirm the decision under review.

Applicant's submissions

1. The applicant stated that his submissions were contained in his affidavit dated 1 May 2023, which was filed on 11 May 2023.
2. I note that the applicant stated that while he was reading Senior Constable Comber's affidavit, he did not understand why the respondent requested an affidavit from a junior Police Officer in the Domestic Violence Section who was not involved in the investigation, as s 15 states that no-one outside the investigating team should have access.
3. The applicant also asserted that the "Banner" on the Fraud Report Form relates only to its transmission and it has no intent to indicate that the form must be confidential. He expressed his belief that the information in question is a government form that is government information and not subject to a redaction under Part 2, Div 1, s 14, Table 1 of the GIPA Act. He concluded: 18. The Commissioner of Police make reference to "third party" in their submission of respondent. In this instance, the third party is the person making the application to Police and would have the expectation that Police would divulge the information about the accusation to the POI of the action/event being investigated.

Respondent's oral submissions

1. Ms Johnston briefly addressed on her written submissions, but she did not raise any new matters.

Applicant's oral submissions

1. The applicant argued to the effect that it is in the public interest to disclose false complaints that have been made, because if the Fraud Report Form was disclosed, it may be possible to "stop what's going on".

Decision reserved

1. At the completion of oral submissions, the Tribunal reserved its decision, subject to conducting a review of the confidential documents in Chambers.

Consideration of confidential documents

1. [NOT FOR PUBLICATION]

Consideration

1. I am satisfied that the reviewable decision is that of the respondent dated 17 November 2023, as varied upon reconsideration on 27 February 2023.

Legal principles and relevant legislation

1. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
2. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 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.
3. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].
4. Section 9(1) of the GIPA Act relevantly provides: 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.
5. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
6. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
7. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
8. 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 against disclosure.
9. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: (1) identify the public interest in favour of disclosure (s 12); (2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
10. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17].
11. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
12. Section 14 relevantly provides: 14. Public interest considerations against disclosure (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. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
13. Clause 1(d) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
14. Clause 1(f) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
15. Clause 1(g) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
16. Clause 3(a) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.
17. Clause 3(b) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIPA or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.
18. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104] (Searle). Subsections 15(a) to (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the Act.
19. It is only necessary that the considerations in the s 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) 228 CLR 423; [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 (at [41]) and Leech at [25].
20. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 53. Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
21. Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
22. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
23. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The 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] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
24. Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
25. Section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides: When hearings are required (1) A hearing is required for proceedings in the Tribunal except - (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

Public interest considerations in favour of disclosure

1. I agree with the public interest considerations that the respondent identified in the reviewable decision, namely: (1) The statutory presumption in favour of the disclosure of government information; (2) The general right of the public to have access to government information held by agencies; (3) The release of the information requested could reasonably be expected to promote the accountability of this agency; and (4) The information under review includes the applicant's personal information, and information about other parties that he is likely to know.
2. The respondent also noted, and correctly in my view, the applicant's motive for making the application as being a personal factor for consideration.
3. In my view, these factors should be given strong weight.

Public interest considerations against disclosure

1. I agree with the public interest considerations against disclosure that have been identified by the respondent.

Cl 1(d) of the Table to s 14(2)

1. Based upon the decisions in in Sherman, Simring, McMahon, Mullett, Martin and Camilleri to this matter, I am satisfied that cl 1(d) has been properly relied upon by the respondent and that the question as to whether information is confidential information for the purposes of cl 1(d) is "to 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" and "should focus on the point of receipt, and the administrative standards and community understanding which surrounded it".
2. I am satisfied that the withheld information was received directly from a member of the public who completed a Fraud Report Form to report, and commence the investigation of, an alleged fraud. The Fraud Report Form states, in a bolded capitalised heading banner at the top of the form: "PRIVACY AND CONFIDENTIALITY NOTICE". There is also a header and footer on each page of the Fraud Report Form "For Official Use Only".
3. While the applicant asserts that this confidentiality notice only applies to transmission of the form, I reject that assertion.
4. In my view, it is apparent from the face of the Form that it is an issue of policy and practise for the respondent to treat information supplied in connection with reporting of a fraud as confidential.
5. I also I accept the respondent's argument that the Form would give rise to an expectation of confidentiality on the part of the person completing it for the purpose of reporting an alleged fraud and possible crime. I further note that Senior Constable Comber's evidence was not challenged on this issue.
6. In my view, this consideration should be given significant weight.

Cl 1(f) of the Table to s 14(2)

1. Based on the unchallenged evidence of Senior Constable Comber, I am satisfied that cl 1(f) has been properly relied upon by the respondent in deciding not to release the withheld information.
2. In my view, this consideration should be given significant weight.

Cl 1(g) of the Table to s 14(2)

1. For the reasons set out in relation to cll 1(d) and 1(f) above, I am satisfied that cl 1(g) has also been properly relied upon by the respondent in refusing to disclose the withheld information.
2. I am satisfied that this consideration should be given strong weight.

Cl 3(a) of the Table to s 14(2)

1. I am satisfied that the withheld information comprises personal information as defined in cl 4(1) of Sch 4 of the GIPA Act. In this matter, there is no evidence before me that indicates that the withheld information has already been publicly disclosed. In my view, this factor should be given significant weight.

Cl 3(b) of the Table to s 14(2)

1. Based upon the evidence before me, I am satisfied that disclosure of the withheld information could reasonably be expected to contravene an information protection principle under the PPIPA, as disclosure under the GIPA Act is not for a purpose directly related to the purpose for which the information was collected.
2. There is no evidence before me that supports a finding any of the permitted exceptions in s 18(1)(a) to (c) apply to this matter. In my view, this consideration should be given strong weight.

Balancing the public interest

1. I have applied the public interest test to this matter as required by the decision in Leech.
2. Having done so, I am satisfied that the public interest considerations against disclosure of the withheld information outweigh those in favour of its disclosure and that there is an overriding public interest against its disclosure.

Conclusion

1. I am satisfied that the correct and preferable decision is to affirm the decision under review.

Order

1. The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2023