The Applicant gave oral testimony that he had been provided with a copy of the information by a social worker, who had left the documents for him in a yellow envelope.
However in cross examination he was unable to describe the document / report in any great detail. Further when provided with a copy of the redacted material, the Applicant was unable to confirm whether the material was in the same or similar form to that which he had previously viewed.
The Respondent submitted that disclosure of information under the GIPA Act was unconditional and to the world at large. There was little evidence or information before the Tribunal to indicate how the information was disclosed (either lawfully or otherwise) to the Applicant, as his evidence alleges.
The Respondent also submitted that on the Applicant's own evidence, it was unclear as to whether the information had been previously released to him lawfully.
The Applicant submitted that the information has already been revealed to him when it was disclosed to him previously. He submitted that the disclosure was an attempt to use the information in manner adverse to him and his reputation, and as that copy was destroyed, there should be no concerns in providing him with the information again.
The Applicant also made compelling general public interest submissions in respect of Aboriginal persons level of representation in the criminal justice system, and how these types of applications could assist such persons in addressing some of those issues.
[2]
Consideration
In my view, on the evidence before me, the disclosure of this information could reasonably be expected to have the effect referred to in Clause (1) (d) of the Table at section 14 of the GIPA Act.
Without going into the detail of the information, it clearly relates to sensitive and serious allegations of the type that if ordinarily disclosed to members of the public, would cause concern for persons providing and reporting that information. Notwithstanding the fact that the information has apparently not been tested (in any criminal proceedings), the public interest in maintaining the flow of information to police to assist the police in the effective exercise of their functions, is in my view compelling.
When weighing up the evidence and material, and having regard to the cases raised by the Respondent, in my view, on balancing the competing interests, the public interest considerations against disclosure outweigh those in favour of disclosure.
It follows that the correct and preferable decision is to affirm the decision of the Respondent Agency.
[3]
Conclusion
I extend time for the filing of the application for review to the Tribunal until 5:00pm 21 July 2014 under section 101 (4) of the GIPA Act.
I affirm the decision of the Agency.
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: 06 March 2015
Parties
Applicant/Plaintiff:
Smith
Respondent/Defendant:
New South Wales Police Force
Cases Cited (5)
Applicable Legislation
The objects of the GIPA Act are as follows:
3 Object of Act
(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.
(2) It is the intention of Parliament:
(a) that this Act be interpreted and applied so as to further the object of this Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 Senior Member Walker provides the following outline of the provisions:
5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure.
6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies.
7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.
8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.
9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".
10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
Section 14 of the GIPA Act provides the circumstances whereby public interest considerations against disclosure of government information may be applied. Relevant to this application, the Agency relied on the provisions outlined below (being public interest considerations) against disclosure of some of the information. Relevantly section 14 provides (inter alia):
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.
(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
During the course of the hearing a number of matters came to light, both in evidence and by way of submissions following instructions.
During the giving of oral testimony, the Applicant gave evidence that the information that he sought (which was referred to as a 'report'), had been used in evidence in proceedings before a Court. This was cited as a further ground as to why the information should be made available to him.
The Respondent advised that it no longer relied upon the Table 1 Clause 3 (f) ground (expose a person to a risk of harm or of serious harassment or serious intimidation). In addition the Respondent provided the Applicant with a COPS event with approximately 50% of the material redacted (and therefore withheld) from release. The Respondent submitted that this document in it's original un-redacted form comprised all of the material held by the Commission of Police in respect of the specific items within the scope requested by the Applicant.
As outlined above at paragraph 15, the final ground or provision (at 3 (f) ) was withdrawn by the Respondent.
The Agency has applied the provisions of Clause 1 (d), 3 (a) (e) and (f) of the Table to section 14 of the GIPA Act (as outlined above), as public interest considerations against disclosure which (in their assessment) outweigh the general public interest consideration in favour of disclosure as outlined in section 12 of the GIPA Act. These were the four grounds which were relied upon in relation to their decision to refuse to release the material.
The principles that apply to the application of the public interest considerations against disclosure (which can be taken into account when assessing whether to override the presumption in favour of disclosure), are set in section 15 of the GIPA Act. That section provides that:
15 Principles that apply to public interest determination
A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:
(a) Agencies must exercise their functions so as to promote the object of this Act.
(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.
(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.
(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.
(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
In written submissions the Respondent relied upon a number of cases but primarily a decision of the (former) Administrative Decisions Tribunal (Appeal Panel) which outlined the general approach to the consideration of section 14 public interest considerations against disclosure.
In the case of Commissioner of Police v Camilleri [2012] NSWADTAP 19, the Appeal Panel stated, at [23], that:
23.As the case developed at the appeal hearing, it became clear that the three questions of law had as their common theme a submission that the Tribunal had misunderstood the relationship between sections 12, 13 and 14 when analysing an agency case for non-disclosure. Each of the matters raised in the questions of law challenge particular steps in the reasoning that are illustrative of the broader criticism.
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.
27. The approach to be adopted is similar to that commended by the Appeal Panel under the previous legislation, there in connection with cl 13(b)(ii). Clause 13(b)(ii) provided that 'a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the future supply of such information to the Government or to an agency'. Clause (b)(iii) went on to provide 'and would, on balance, be contrary to the public interest'.
28. In Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13 (Mullett), the Appeal Panel said:
58 In our view 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. ...'
29. This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. They squarely focus on considerations relating to the conduct of the business of government. Under the first five clauses of the section 14 Table there are a total of 35 possible 'effects' listed (clause 1, nine; clause 2, nine; clause 3, seven; clause 4, five; clause 5, five). Each of the five clauses is introduced by the words:
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:.
30. The Tribunal is called on to examine whether the effect is established and then to ask whether the disclosure 'could reasonably be expected' to have the specified effect.
I will turn to this examination in my consideration of the submissions.
In respect of the Applicant's submission that the material had previously been revealed to him, the Respondent submitted that the principles in the case of Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 at [169]:
169. The term "Disclose" is defined in schedule 4 of the GIPA Act:
disclose information includes make information available and release or provide access to information.
170. The term "Reveal" is defined in clause 1 of Schedule 4 of the GIPA Act:
reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
171.,There is some overlap between these definitions, in that the definition of "reveal" uses the word "disclose", which itself is not exhaustively defined.
172.,In R v Ritson; R v Stacey (2010) NSWDC 160 at [51] - [58] the Court adopted the meaning of "disclosure" for the purposes of the Privacy and Person Information Protection Act 1998 stated by Latham CJ of the High Court in Foster v Federal Commissioner of Taxation [1951] HCA 18; (1951) 82 CLR 606 at 614-615:
... it is not possible, according to the ordinary use of language, to 'disclose' to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware.
173. In Richards v Commissioner, Department of Community Services (2011) NSWADT 98 [40] the Tribunal decided that the issue to be considered regarding whether release of information is likely to 'reveal' information, is whether the 'information' had been publicly disclosed.
174. I agree with the view that if the information contained in a record has been disclosed, it cannot be "revealed" by giving access under the GIPA Act.
The Respondent submitted that information is obtained in confidence if it is communicated and received under an expressed or inferred understanding that it would be kept confidential. Further the assessment of what effect disclosure "could reasonably be expected to have in the future require the agency or on review the Tribunal, to undertake an objective assessment as to whether the relevant effects could be expected to arise. (citing Camilleri and Flack v Commissioner of Police [2011] NSWADT 286).
The main thrust of the Respondent's submissions was that merely because circumstances may dictate or necessitate the disclosure of otherwise confidential information, that is not a sound basis for concluding that the information is not initially conveyed on a confidential basis. Nor is it a basis for concluding that giving access to such information could not be expected to prejudice the supply of confidential information to police in the future.
The personal information grounds were not ventilated to any great extent in submissions, however, I note that the Applicant no longer seeks personal information relating to an individual's identity, as he believes that he already knows who the individual's identity.