Seremetis v Department of Communities and Justice

NCAT Appeal Panel|2019-09-13|Before: Dr J

Introduction

This is an internal appeal from the decision of the Tribunal in its Administrative and Equal Opportunity Division dated 14 June 2019, Seremetis v NSW Department of Justice [2019] NSWCATAD 118 (the Decision).
The Appellant had applied for access to information under the Government Information (Public Access) Act 2009 (the GIPA Act) from the NSW Department of Communities and Justice (the Respondent). The information sought included CCTV footage at the Metropolitan Remand and Reception Centre on 27 October 2016. The Appellant alleged he was assaulted in the Centre on that date while being moved from one cell to another. The Appellant was granted access to the CCTV footage on 1 November 2018 in the form of view-only access and was not permitted to retain a copy.
The Appellant sought an internal review of the decision. The internal review decision confirmed the original decision. The Appellant then applied to this Tribunal for review of the decision. The Tribunal noted that at the hearing, his legal representative indicated that his application for review was limited to the decision to restrict access to providing him with a reasonable opportunity to view the footage, rather than provide a copy. The Tribunal in its Decision decided to affirm the decision of the Respondent.
The Appellant now appeals that Decision. For the reasons which follow, we have decided to dismiss the appeal.

The Tribunal's Reasoning

The Tribunal noted that a balancing exercise was to be conducted under s13 of the GIPA Act which "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation'', citing Battin v University of New England [2013] NSWADT 73 at [74].
The Tribunal also noted that clauses 1(f), 2(g) and 2(h) of the Table to s14 of the GIPA Act provided for public interest considerations against disclosure of information relating to the security and safety of the Remand Centre and the supervision of inmates. Clause 1(f) provides that there is a public interest consideration against disclosure of information if it could reasonably be expected to have the effect of prejudicing the effective exercise by an agency of the agency's functions. The Respondent submitted that one of its key functions was to ensure the safe and secure custody of inmates, as set out in s2A of the Crimes (Administration of Sentences) Act.
Under clause 2(g) there is a public interest against disclosure if the disclosure could reasonably be expected to prejudice the supervision of any person in custody. Clause 2(h) provides that there is a public interest consideration against disclosure of information if it could be reasonably expected to prejudice the security, good order or discipline of a correctional facility.
Based on the evidence of Mr Juhasz, the Tribunal was satisfied that the disclosure of footage that shows the areas which are not monitored by CCTV could reasonably be expected to cause detriment or disadvantage to the safe and secure custody and the supervision of inmates and would compromise security of the area concerned by releasing, without limitation, information about which areas of the Centre are not under observation. The Tribunal was satisfied that the security and supervision of correctional centres and their inmates are core functions of the Respondent.
The Tribunal accepted that the disclosure of the footage could reasonably be expected to have the effect of revealing the personal information of the inmates and correctional officers in the footage whose faces are visible. Clause 3(b) of the Table to s14 of the GIPA Act provides that a public interest consideration against disclosure exists if disclosure could be reasonably expected to breach an information protection principle under the Privacy and Personal Information Act 1998 (NSW). The Respondent relies on the principle of s18 of that Act that an agency must not disclose personal information for a purpose other than that for which it was collected. The Tribunal found that the purpose for which the information in the CCTV footage was collected was for the safety and security of the Centre and that, therefore, this was a relevant consideration against disclosure.
Next, the Tribunal turned to clause 6(1) of the Table to s14 of the GIPA Act, which provides, broadly, that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to contravene a secrecy provision in an Act, and to s257(1) of the Crimes (Administration of Sentences) Act, which provides that a person must not disclose any information obtained in connection with the administration or execution of that Act. The Tribunal was satisfied that the footage is information obtained in connection with the administration or execution of the Act, as the Act regulates the management and control of correctional centres. The Tribunal found that release of the footage would be a breach of s257 and it would appear the Tribunal took this into account as a relevant consideration in the exercise of its discretion in the conduct of the balancing exercise.
The Tribunal noted that under s55(2) of the GIPA Act the personal factors of the applicant can also be taken into account as factors in favour of providing the Appellant with access to the information. The Tribunal also noted that the Appellant wishes to have the footage available to him in order to help him litigate a claim that he was assaulted while in the Centre.
The Tribunal concluded its reasoning process at [42]- [46] as follows: ''42 I find that the relevant public interest considerations in favour of disclosure are the following: (1) The general public interest pursuant to s 12(1); (2) The information is personal information of the person to whom it is to be disclosed pursuant to s12(2)(d). The footage contains the image of the Applicant and therefore contains his personal information. (3) Disclosure of the information could reasonably be expected to inform the public about the operations of the Respondent and it's procedures for dealing with inmates. (4) The Applicant would be able to use the information to enforce his legal rights arising from an assault which he alleges was committed upon him while in custody. Such an assault, if it occurred would have been a serious breach of the Respondent's duty towards the Applicant. 43 The Applicant submitted that disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. From my viewing of the footage I am unable to conclude that it could reasonably be expected that this would happen, but I accept that it is a possibility. 44 I afford these public interest considerations in favour of disclosure significant weight. 45 I also give significant weight to the public interest considerations against disclosure which I found to be substantiated. The safe and secure custody of inmates and the supervision of those inmates is very significant and anything which has a detrimental impact on that should be avoided where possible. In addition the personal information of inmates in correctional centres and the staff supervising them should be protected from unrestricted disclosure. 46 It would have been possible to provide the footage with identifying features of individuals redacted, pursuant to s 74 of the Act. This would remove the public interests against disclosure under clauses 3(a) and (b) and partially address 2(h). However the "blind spots" would still be detectable and so the public interest against disclosure under 1(f), 2(g) and 2(h) would remain. Given the importance of the security and supervision of the Centre, on balance I believe the public interest considerations against making the footage available to the applicant in the form requested outweigh those in favour. The correct and preferable decision in the circumstances is to affirm the decision under review.''

The Appellant's Submissions

The Appellant's legal representative was content to rely upon a 2-page document for his grounds of appeal and submissions. Previously, the Appellant, without the aid of legal representation, had completed by hand the Notice of Appeal. There was no objection by the Respondent to us proceeding to deal with the appeal on the basis of the 2-page written submissions.
The submissions divided the grounds of appeal between those involving errors of law and those involving errors of fact. The Appellant relied upon McKean v Department of Justice [2016] NSWCATAP 93 to submit that the Tribunal made some errors of law in the exercise of its discretion in this matter. These were described as follows: 1. The Tribunal failed to give sufficient weight to the public interest factors in favour of release of the CCTV footage because it is relevant to the Appellant's allegation of the correctional officers assaulting him and engaging in an unlawful and improper conduct. 2. The Tribunal failed to interpret the material fact that correctional officers had assaulted the Appellant and had engaged in an unlawful manner, although the Tribunal concluded it was a possibility. 3. The Tribunal failed to apply properly the law as contained in s12(e) of the GIPA Act and placed excessive weight on the evidence of Mr Juhasz, who was not a qualified expert witness, and the Tribunal placed excessive weight to his conclusions. 4. The Tribunal did not apply the law as contained in s.12(e) of the GIPA Act and failed to conduct the balancing exercise as required under s.13 of that Act by not properly weighing up competing matters as required by law.

Consideration

Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
In respect of whether or not the Tribunal failed to take into account a relevant (i.e., mandatory) consideration, the Appeal Panel in Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 at [28] stated the following: "Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing), instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory matter must be approached with caution, with care to avoid any impermissible reconsideration of the merits of the decision.''
Whether a decision of the Tribunal in respect of applying the public interest test under the GIPA Act involves an error of law was dealt with in McKean at [68] - [70]. The Appeal Panel recognised that in this area the decision maker is given a wide discretion by the law in identifying what may be seen as relevant and weighing in the balance those matters. Further, that such weighing process can only be undone on error of law grounds in circumstances of the kind set out in House v R (1936) 55 CLR 499 at 504-5.
We now deal with the specific matters raised by Appellant. First, we are satisfied that the Tribunal properly applied the law as contained in s12 of the GIPA Act. Whilst the Appellant referred to "s 12(e)," there is no such provision. Section 12(2) provides that the GIPA Act does not limit the public interest considerations in favour of the disclosure of government information that may be taken into account. The note following s 12(2) contains examples of public interest considerations in favour of disclosure, including (in paragraph (e)) that disclosure of the information could reasonably be expected to reveal that an agency has engaged in misconduct or negligent, improper or unlawful conduct. The Appellant relied upon this consideration before the Tribunal.
The Tribunal took into account the public interest factors put forward by the Appellant in favour of release of the CCTV footage on the ground that it is relevant to the Appellant's allegation of the correctional officers assaulting him and engaging in an unlawful and improper conduct: see [43]-[44] of the Decision.
Secondly, we are satisfied that the Tribunal properly applied the law as contained in s13 of the GIPA Act. The Tribunal stated the factors it took into account both in favour of and against release of a copy of the footage and stated the applicability and weighting it gave to each factor. In accordance with s13 of the GIPA Act it concluded that there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Thirdly, the contentions that the Tribunal failed to give sufficient weight to the public interest factors in favour of release of the CCTV footage; failed to interpret the material fact that correctional officers had assaulted the Appellant and placed excessive weight on the evidence of Mr Juhasz, do not raise any questions of law.
It is clear that Mr Juhasz was a witness with some expertise and that the Tribunal was entitled to rely upon his evidence. The Appellant essentially seeks to contend that the Tribunal should have found in his favour due to the public interest in releasing the CCTV footage, being that it could be relevant to the Appellant's allegations of the correctional officers assaulting him and engaging in unlawful or improper conduct.
This public interest consideration in favour of release was considered by the Tribunal but it concluded that decisive weight should be given to the relevant factors expressed by it against the disclosure of a copy of CCTV footage to the Appellant. The weight to be given to a particular consideration in favour of disclosure is a matter for the decision maker; see Durie v Wollongong City Council [2017] NSWCATAP 148 at [28]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J. Accordingly, the amount of weight to be given to the considerations in favour of release of the footage was at the discretion of the Tribunal and no question of law arises in relation to the weight the Tribunal attributed to considerations in favour of disclosure.
Accordingly, in our view, the Tribunal's Decision was not affected by any consideration of a wrong principle and it only considered relevant matters. In accordance with the decision in McKean, there is no error of law in respect of the Decision the subject of this Appeal.

Appellant's Submissions

The Appellant submitted that leave should be granted to appeal for the reason that the Tribunal had made a material error of fact in concluding that the CCTV footage failed to disclose an unlawful act by a member of the agency, although the Tribunal concluded it was a possibility. The Appellant also submitted that the Tribunal made a material error of fact in placing undue weight on the unqualified and inexpert opinions of Mr Juhasz. Leave should be granted as there are matters of public importance and there is an injustice so that it would be unjust to allow the finding to stand.
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Consideration
For the following reasons we decline to grant leave to appeal.
The Tribunal held that it was unable to conclude that disclosure of the CCTV footage could reasonably be expected to reveal or substantiate that an agency has engaged in misconduct or negligent, improper or unlawful conduct. The Tribunal did accept that that was a possibility: at [43].
Having viewed the footage, in our opinion, such a conclusion was reasonably open to the Tribunal. We are not satisfied that this finding was unreasonably arrived at and clearly mistaken; or that the Tribunal had gone about the fact-finding process in such an unorthodox manner or in such a way that was likely to produce an unfair result.
Similarly, we are of the view that it was open to the Tribunal to place weight upon the evidence of Mr Juhasz. Mr Juhasz was the "Systems Security Manager" responsible for recording and keeping video surveillance footage captured at the Centre and retrieving footage as required. This experience qualified Mr Juhasz to give evidence to the effect that release of the footage could lead to a person identifying the camera angles and blind spots which were not covered by the CCTV cameras.
Lastly, we note that the Appellant has had access to the footage and can subpoena the footage in any litigation he may wish to take arising out of his allegation of being assaulted. He did not provide any explanation for why he would need a copy of the footage before such time. This diminishes the submission that it would be unjust to allow the conclusion of the Tribunal to stand.

Orders 1. Leave to appeal is refused. 2. Appeal is dismissed. 3. If either party seeks a costs order the following directions apply: 1. The applicant for costs ("costs applicant") must file and serve any costs application, including submissions and any evidence in support, within 7 days of the date of these orders. 2. The respondent to the costs application is to file and serve any submissions and evidence in reply within 14 days from the date of these orders. 3. The costs applicant is to file any submissions in reply within 21 days from the date of these orders. 4. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), dispensing with a hearing of the costs application.

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: 29 October 2019

Privacy and Personal Information Act 1998(NSW)

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