Smolenski v Commissioner of Police

The Appeal

1. The right of appeal against a final decision of the present kind is confined to any 'question of law' but the appeal may be extended with the leave of the Appeal Panel to any 'other ground': Civil and Administrative Tribunal Act 2013, s 80(2)(b).
2. The appellant is a litigant in person. The appeal form simply asks the appellant to set out grounds of appeal. It does not ask for them to be divided into questions of law and other grounds. He did tick the box asking whether he was seeking leave to appeal against the decision. The appellant sets out three grounds. We will set them out as expressed: 1. The Tribunal member … failed in her decision to meet the principal object of the GIPA Act in that obviously false and misleading documents have not been allowed to be tested by the member, which grossly detracts from the object and that in light of the above to leave redacted information untested significantly damages a responsible and representative government's democratic ability to properly function as described in the objects of the Act. 2. There is no evidence to support the non-disclosure of the requested redacted information. 3. Enabling a party or parties who issue information that be false or misleading, damages the good effect of interacting agencies. It also damages individual rights, judicial processes and natural justice, all of which fail to meet the intent and nature of the Act.
3. The agency's reply is that there is no question of law, and if the Tribunal considers otherwise, there is no error of law. The agency opposes any grant of leave to consider the case on 'other grounds', i.e. on its merits.
4. The appellant filed submissions (12 May 2015) to which the respondent filed submissions in reply (27 May 2015). At hearing (19 June 2015) the appellant handed up further written submissions in reply to the respondent's submissions. The respondent advised in relation to an issue raised by the appellant's submissions that it had overlooked responding immediately to the orders made by the Tribunal for further disclosure, and provided a copy of a letter to the appellant (9 June 2015) enclosing the additional material.
5. (We note that the appellant in his submissions explained that he had regarded the decision he was appealing against as an 'interlocutory' decision within the scheme of the NCAT Act. Appeals against interlocutory decisions require leave, and the leave to applies to grounds of any kind. His understanding in that regard derived from a statement in the NCAT Internal Appeals Guideline that appeals against decisions to restrict the disclosure or publication of information are examples of interlocutory decisions. This advice refers to decisions that have to do with the suppression of information that would otherwise be public in relation to the conduct of proceedings (such as identity of party, identity of witness). It is not a reference to proceedings that have given rise to a final decision in relation to the rights conferred by access to information laws, such as the GIPA Act.)

The Applicable Law

1. The GIPA Act's core provision is that '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)': s 9(1). These words are subject to the following limitation: 'unless there is an overriding public interest against disclosure of the information'. The agency carries the 'burden of establishing that the decision is justified': s 105. There are exceptions to this rule, but none apply to this case. So the fundamental task of the agency and the Tribunal on review is to determine whether the right to be provided with access to any information requested is qualified to the extent that access should be refused due to an overriding public interest against disclosure of the information.
2. Such an 'overriding public interest against disclosure' (sometimes referred to by the acronym, OPIAD) arises 'if (and only if) there are public interest considerations against disclosure' (sometimes referred to by the acronym, PICAD) 'and, on balance, those considerations outweigh the public interest considerations in favour of disclosure' (sometimes referred to by the acronym, PICFD) (s 13).
3. The public interest considerations against disclosure are limited by the GIPA Act, while the public interest considerations in favour of disclosure are not limited. Public interest considerations against disclosure are confined to those set out in the Table attached to s 14. The Table has seven principal categories, and the first five of them have a total of 35 sub-categories.
4. The GIPA Act provides that there is a general public interest in favour of the disclosure of government information (s 12(1)). That there is no limitation on the considerations that may be taken into account in favour of disclosure is spelt out by s 12(2) which provides: Nothing in this Act limits any other public interest considerations in favour of the disclosure of information that may taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
5. Furthermore, s 15 provides that a determination as to the balance to be struck is to be made 'in accordance with' certain 'principles'. They are: (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.
6. An application for review of a decision made under the GIPA Act belongs to the administrative review jurisdiction of the Tribunal. The Tribunal's task in dealing with an administrative review application is to make the 'correct and preferable decision' having regard to all relevant material now before it: Administrative Decisions Review Act 1997, s 63. Except where there is only one correct decision available, the Tribunal's review function has an inherently discretionary character. The provisions of the GIPA Act applicable to this case also have a discretionary character. The Tribunal in a GIPA Act case is involved in a weighing exercise, with the ultimate question being whether there is an overriding public interest against disclosure.
7. Exercises of discretion of these kinds do not admit easily of an attack on error of law grounds. The making of discretionary judgements is a usual activity of courts and tribunals sitting at first instance or trial level. The making of discretionary judgements can only be upset on error of law grounds if the judgement is so unreasonable or ill-founded that it infringes the well-known principles of House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505 per Dixon, Evatt & McTiernan JJ.: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Information that remains in dispute

1. We will now refer to the information that remains in dispute following the Tribunal's decision, and is thereby the subject of this appeal, divided into three categories - the 'screening material', the 'interview guidance material' and the 'COPS material'. We will refer to the s 14 Table considerations against disclosure upon which the agency relied, and which were accepted, at least to some degree, by the Tribunal as prevailing over the public interest in favour of disclosure.
2. Screening Material: This material comprises: (a) the fifth paragraph of the email dated 1 June 2011 from Mr Chittenden of Customs to Ms Bailey (redacted from page 96); (b) part of a handwritten note of a telephone conversation that Ms Bailey had on 31 May 2011 (redacted from page 97, part of page 97 was released); (c) an internal Employment Check form marked 'In Strict Confidence' with hand written notes on the top section of the form (the whole of page 98).
3. The respondent invoked the following PICADs: 1 Responsible and effective government 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 (whether in a particular case or generally): (c) prejudice relations with, or the obtaining of confidential information from, another government, (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (f) prejudice the effective exercise by an agency of the agency's functions, 7 Exempt documents under interstate Freedom of Information legislation (1) There is a public interest consideration against disclosure of information communicated to the Government of New South Wales by the Government of the Commonwealth or of another State if notice has been received from that Government that the information is exempt matter within the meaning of a corresponding law of the Commonwealth or that other State. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the exemption. (3) In this clause, a reference to a corresponding law is a reference to: (a) the Freedom of Information Act 1982 of the Commonwealth, or (b) a law of any other State that is prescribed by the regulations as a corresponding law for the purposes of this clause.
4. The respondent relied on detailed evidence from Inspector Hudson in support of these PICADs, which the Tribunal accepted. The Tribunal upheld the respondent's decision in relation to items (a) and (b), and held in that regard that cl 1(c), 1(d), 1(f) and cl 7 were relevant public interest considerations against disclosure and, together, constituted an overriding public interest against disclosure.
5. Interview Guidance Material: This is the material given to members of the interview panel (pages 106-120). Inspector Hudson provided evidence as to why it was desirable to protect this material. The agency relied on the following PICAD, and the Tribunal accepted that it should prevail: 1 Responsible and effective government 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 (whether in a particular case or generally): (f) prejudice the effective exercise by an agency of the agency's functions,
6. Inspector Hudson explained the importance to the effectiveness of the recruitment processes of the NSW Police of the need to maintain secrecy in relation to the guidance material given to interview panels so that applicants' responses were not compromised in their usefulness by attempts by applicants to structure their responses in an acceptable way.
7. COPS material. Most of this information was provided. There were deletions of third party personal information at pages 124, 148, and 158, and the whole of pages 149-154. The respondent relied on the following PICAD, and the Tribunal accepted that it should prevail: 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information.

Whether Questions of Law raised by the grounds of appeal as formulated

1. Grounds 1 and 3 of the appeal, as formulated by the appellant, have the same premise, that the content of the material that remains withheld is false and misleading. It is said that therefore the Tribunal failed to meet the principal object of the GIPA Act 'in that obviously false and misleading documents have not been allowed to be tested by the member' and this 'grossly detracts' from the objectives of the legislation (Ground 1), and that this outcome also damages the 'good effect of interacting agencies' (Ground 3). The Act has the following objectives: 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.
2. Read fairly, we consider that the Tribunal in its reasons was mindful of the objectives of the Act. The objects clause indicates at s 3(1)(c) that it is an object to provide that access may be restricted 'only when there is an overriding public interest against disclosure'. The Tribunal engaged, in broad terms, in the type of analysis required by the Act (in particular, by ss 12-15) in seeking to address that question. It is evident from its decision that it did not have a closed mind as to the agency case, and ordered some disclosures of significance (the identities of agency officers involved in the process of checking, the identity of the Commonwealth officer who authored the email at pages 95 and 96, and the substantive content of that email).
3. In Ground 2 the appellant asserts that there is no evidence to support the non-disclosure of the requested redacted information. The primary evidence of the agency was that given by Inspector Hudson for the respondent. The Tribunal also had before it the complete, unredacted bundle of documents, and consequently the totality of the information collected by the respondent. As we have explained, the provisions in the GIPA Act that set out the way the administrator (and the Tribunal in its stead) is to go about determining an application all use flexible expressions, liable to a range of reasonable interpretations - concepts such as 'reasonably to be expected', 'prejudice', 'effective exercise' (in the case of considerations such as cl 1(d) and cl 1(f)), 'outweigh' and 'overriding' (see s 13). The Tribunal engaged with the task required. It had evidence before it.
4. We do not think that the grounds as formulated raise questions of law.

Whether to Grant Leave to Pursue Appeal on Other Grounds

1. Where an appellant has failed to identify an error of law in the reasoning below, caution should be exercised in extending an appeal to 'other grounds' going to the merits of the decision.
2. Interview Guidance Material, and Third Party Deletions: Leave Refused. We do not grant leave for the proceedings to continue in relation to the decisions of the Tribunal as they concern the interview guidance material and the remaining deletions in the COPS material.
3. In our view the Tribunal engaged in an exercise of discretion of a usual kind in dealing with the question of whether the respondent's decision was correct and preferable on these points. There is a clear public interest in the protection of confidential advice given to interview panels as to the rating, grading or weight to be given to answers, and as to the identification by the interviewee of matters seen as relevant to the position. Similarly, it is not unusual for protection to be afforded on privacy grounds to personal information about private individuals (as distinct from officers engaging in their official functions) who are referred to in records that also refer to the access applicant.
4. Pre-Employment Screening Information: Leave Granted. However, we do grant leave to reopen the decision as it relates to the information that remains undisclosed that was gathered in the pre-employment screening process. We will consider the appeal grounds on that basis.
5. In deciding to release the four paragraphs of the Customs email to the respondent, the Tribunal gave greater weight to the public interest considerations that favour openness as to the contents of that email, and to the appellant's interest in knowing why he was taken off the eligibility list, than to the PICADs on which the respondent relied. The Tribunal explained its decision to release the four paragraphs on the basis that that material was 'historical' and because it purports to be 'factual in nature' (at [61]). Further, the Tribunal stated that 'this is information of a kind that the applicant has personal knowledge of' (at [63]).
6. It is the case, as the Tribunal said, that the Customs email referred to matters in the history of the appellant's employment with Customs in the period 2000-2008 that were well known to the appellant, and to which he believes he can make an effective reply. But he remains 'in the dark' as to what remains redacted in that email. In our view, the Tribunal needed to give an explanation in a case of this kind addressing the contents of that which is left unrevealed, albeit an explanation that might only appear in confidential text not revealed to the access applicant but visible to the respondent and an appeal body such as the Appeal Panel.
7. The considerations that the respondent had relied upon in defence of its position were substantially eroded, it seems to us, by the Tribunal's decision to release the four substantive paragraphs of the Customs email. For example, major concerns of the respondent were the protection of confidentiality of communications between a job applicant's former employers and the respondent in relation to applicants for positions. Another major concern was that protection be given to Commonwealth agency-State agency relations in relation to employment checks undertaken in relation to applicants who had previously been employed in the other jurisdiction.
8. The danger in having a mixed approach to disclosure of the kind that has occurred in this case is that the appellant's fear that the 'real case' against him has not been disclosed, and is hidden in the unrevealed material, is compounded. It also tends to suggest an inconsistent approach to the application of public interest considerations against disclosure.
9. The formal email, which, in our view, the Tribunal properly released (and which, commendably, the respondent has now furnished to the appellant) represented the official, evidence-based record of concerns held by the former employer. The appellant knows that there are other communications that have not been released. This is a recruitment setting, and good industrial relations seeks to uphold the value of transparency in the decision making process.
10. The fact that disclosure of information might cause embarrassment to a government agency is irrelevant, as is the fact that disclosure of information might be misinterpreted or misunderstood (GIPA Act, s 15(c) and (d)).
11. In our view, there is a public interest in applicants for employment knowing what information was taken into account, or may have been taken into account, in making a decision adverse to their application. In our view, the Tribunal did not explain why, in the circumstances of this case, the information covered by items (a) and (b) might not be disclosed. There may be cases where the particulars of the communication refer for example to ongoing investigations, or to information held in intelligence databases where there is a clear operational interest that justifies confidentiality being maintained. This does not appear to be a case of that kind. Moreover in making that disclosure of the respondent has now revealed the name of the Customs officer with whom it dealt in relation to that aspect of the screening process as well as the officer in its own unit that engaged in the correspondence with the Customs officer. That must, as we see it, weaken the case for withholding the names of other parties to the exchanges reflected in the balance of pages 96 to 98.
12. The appellant (like many access applicants do) pressed the view that there were considerations personal to his case that should be weighed in the balance. Whilst he did not allege that the Tribunal failed to do this in the grounds set out in his notice of appeal, it was clear from his written submissions and the further oral submissions at hearing that this was a key part of his case on appeal, a case to which the respondent had an opportunity to respond. Section 55(1) provides relevantly: 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.
13. In its review of the applicable law, the Tribunal referred to s 55 of the Act, and said the following as to his personal interest in being granted access to the full records: 30 The applicant also filed detailed written submissions. In those submissions, the applicant explained aspects of his employment history with [Customs]. He also explained what positions he had applied for since leaving [Customs] and what the outcome was. He said he was concerned about false and misleading statements having been made by officers of the [Customs], the AFP and other employers the respondent had contacted. He said he was concerned that these false and misleading statements had undermined his professional standing, character, credibility and honesty, without him being able to refute them.
14. In the past, review tribunals often gave little or no weight to personal motivations of this kind in assessing whether to grant access to the information. The view was often taken that the question should be approached on a relatively abstract basis. If the matter in dispute in the documents the subject of the request (in the case of the previous Freedom of Information Act regime) possessed the characteristics that justified a finding that the matter was 'exempt matter', that resolved the issue. In the later history of the FOI law, higher courts questioned the strictness of this approach to the exercise of discretion.
15. Appellate courts and tribunals held that it was appropriate to take account, to some degree, of the access applicant's personal interests and motivations in being granted access as a basis for granting disclosure, even though disclosure might properly be denied to someone who did not have those interests or motivations: see Victoria Police v Marke [2008] VSCA 218; applied, Department of Education and Training v GJ (GD) [2009] NSWADTAP 33; applied, Simring v Commissioner of Police, NSW Police Force [2009] NSWSC 270 at [49] per Smart AJA.
16. In Marke, the court noted that it was open to the decision to take into account any promises or undertakings the applicant might be prepared to give in relation to limited use of the information withheld. That does not mean that the decision-maker must give effect to the applicant's plea. The decision-maker may form a negative view as to the likelihood that the promise will be kept, and the attributes of the applicant may militate against acceptance of the promise. The Victorian Court gave the following illustrations of this point: the applicant who is a political activist, a journalist or a member of parliament, all of whom might reasonably be assumed to be likely to seek maximum publicity for the material released.
17. The circumstances in which 'personal factors of an application' may be taken into account, both for and against disclosure of information, have now been codified in New South Wales in s 55 of the GIPA Act.
18. We regard the Tribunal's limited consideration of the personal factors of the appellant's application as inadequate in the circumstances that existed, or were to exist, as a result of its decision to disclose a key part of the material provided about his employment history by his former employer. Arguably, the appellant's 'motives for making the access application' and other factors particular to him (GIPA Act, s 55(1)(b)) militated in favour of providing him with access to the information. The access applicant was a person with a long standing record of work in high level security positions. He was now considered unsuitable for work in a position with similar requirements, at a more junior level. In dealing with the question of the material that remained withheld at pages 96-98, the Tribunal, we consider, should have dealt squarely with this aspect of the matter, and explained why it did not give any weight to this factor in its final assessment of the weighing of the considerations for and against disclosure.
19. The appellant's motives for making the access application were explored to some degree at the appeal hearing. At the appeal hearing, the appellant said he was very concerned about the suggestion, arising from the information that has been disclosed, that he was a security risk (i.e. not suitable for national security clearances in a government of law enforcement position). The appellant emphasised at our hearing that he would like to see all of the information so that, if unfair or inaccurate, he could exercise his right to apply for amendment of the information. A right of this kind is an integral part of Australia's Freedom of Information laws as they relate to personal records. Such a right was contained in the former Freedom of Information Act 1989, s 39 (now repealed).
20. The GIPA Act is the successor to the FOI Act but contains no equivalent provision. That is because since 1998 there has been a provision in the Privacy and Personal Information Protection Act 1998 (s 15) which has the same role. The principal provision is s 15(1) which provides: (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information: (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.
21. [CONFIDENTIAL] Order 1. Appeal dismissed in relation to the Tribunal's decision affirming the respondent's decision to refuse to disclose information that remains redacted between pages 106 and 120; and at pages 124, 148, and 158, and the whole of pages 149-154. 2. Leave granted to extend the appeal to the merits of the Tribunal's decision in relation to the information that remains redacted at pages 96, 97 and 98. Registrar to convene a directions hearing before the presiding member in relation to the determination of that matter. [On 9 May 2016, the Appeal Panel made the following Order by Consent disposing of the proceedings: That the Respondent disclose the remaining information in pages IAU 96,97 and 98 by providing the Appellant with an entirely unredacted copy of pages IAU 96, 97 and 98, within seven (7) days of today.]

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

Amendments 25 May 2016 - [On 9 May 2016, the Appeal Panel made the following Order by Consent disposing of the proceedings: That the Respondent disclose the remaining information in pages IAU 96,97 and 98 by providing the Appellant with an entirely unredacted copy of pages IAU 96, 97 and 98, within seven (7) days of today.] 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: 25 May 2016