This is an application by Mr Ronald Snape, seeking administrative review of a decision of the Commissioner of Police, NSW Police Force (the Respondent), to not grant to him information contained in records held by the Respondent concerning complaints he has made about a neighbour, pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
Mr Snape submits that the correct and preferable decision is to grant him access to information in COPS event report E77276740 and redacted information in COPS record IASUWT12.
Mr Snape, in written submissions and during the hearing, said his motivation for obtaining the information was so he could identify the correct name of his neighbour and bring a private Apprehended Violence Order (AVO). He contends that the Respondent has refused to bring an AVO on his behalf.
[2]
Background
Mr Snape initially made an access application to the Department of Communities and Justice, which was transferred to the Respondent on 18 January 2021. Mr Snape sought access to information, including:
"The identity of the person known to police residing in … known to police by my numerous complaints.
I also need his address in order for me to do an AVO"
On 11 February 2021, the Respondent refused to provide access to COPS event report E77276740 on the basis that there was an overriding public interest against disclosure. The Respondent relies upon cl 3(a) of the table to s 14 of the GIPA Act.
On 2 March 2021, Mr Snape filed an application seeking this Tribunal to review the decision of the Respondent made on 11 February 2021. The following grounds were cited in his application:
"The police on the ground at Narooma NSW strongly advised to get an AVO taken out against our new neighbour. They said it was the only they [sic] could respond i [sic] my neighbour's erratic and threatening behaviour.
I was told if he breached the AVO he would be locked up. I was told it was the only way I could be protected. The police said they were not in the business of doing AVO due to the liability if the case was lost. Constable Uerata refused to provide me with the name of the offender He told me to do FOI. I told him the FOI was refused. He said that surprised him. My life was threaten [sic]."
The application included a document and a letter from another neighbour. This is the application that is before me for determination.
On 23 March 2021, the Respondent, in reliance on s 58(3) of the GIPA Act, proceeded to make a further decision, replacing or supplementing the first decision made on 11 February 2021. The Respondent decided that the information described in its 11 February 2021 decision did not, in fact, address the Applicant's application, and that further information has been identified that was responsive to the application. The Respondent refused to provide access to the further information identified as being responsive (COPS record IASUWT12) on the grounds that there was an overriding public interest against disclosure, relying on cl 3(a) and (b) of the table to s 14 of the GIPA Act and redacted parts of the information.
The reviewable decisions are the decision of 11 February 2021 to refuse access to responsive information in COPS event E77276740, and the decision of 23 March 2021 to refuse access to information redacted from COPS record IASUWT12.
Mr Snape filed a separate access application under the GIPA Act, again with the Department of Communities and Justice, which was transferred to the Respondent on 18 January 2021. That application is not under review but is relevant in so far as some of the information provided by the Respondent relates to the matter currently before me. In this related access application Mr Snape sought the following information:
"I require the police phone tap of a conversation between Scott Wharf and myself on 22/12/2020 regarding the abuse of my grandson and refusal to do an AVO for me.
About 3.30 pm
Also I want a copy of the security tape of myself reporting that a car hit me - conversation between Hayden Uerata and myself 20/12/2020 about 10.30am also I want a copy of officer UERATA'S written records at the time.
and the phone tape at about 10.00 of my reporting the incident between officer Barry and myself"
The Respondent on 11 February 2021 determined the separate application and provided:
1. partial access to police notebook entries and COPS case report C80541986; and
2. determined that other information requested was not held.
I accept the Respondent's submissions that whilst this related access application is not the subject of my review, it is relevant, as the Respondent provided access to information that is, in part, responsive to the matter which is subject to my determination.
[3]
Relevant legislation
Section 3 of the GIPA Act states that the object of the Act is to open government information to the public and:
…
(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.
Section 5 of the GIPA Act provides:
5 Presumption in favour of disclosure of government information
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9 of the GIPA Act confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
Section 12 of the GIPA Act provides for public interest considerations in favour of disclosure.
Sections 13 and 14 of the GIPA Act relevantly provide:
13 Public interest test
There is an overriding public interest against disclosure of 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.
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).
Table
…
3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects -
(a) reveal an individual's personal information,
(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a health privacy principle under the Health Records and Information Privacy Act 2002,
…
Section 15 of the GIPA Act provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information:
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.
Section 54 of the GIPA Act requires an agency to take "such steps (if any) that are reasonably practicable" to consult with a person before providing access to information relating to that person in response to an access application, where the information includes personal information about the person (s 54(1) and (2)). The purpose of consultation is to ascertain whether the person has an objection to disclosure of the information, and any reasons for any such objection (s 54(4)).
Section 55 of the GIPA Act 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.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Note -
An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
Section 72(1) of the GIPA Act provides that access to information may be provided in a number of ways, including by providing an opportunity to inspect a record containing the information (s 72(1)(a)), providing a copy of the information (s 72(1)(b)), or providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned) (s 72(1)(c)). Section 72(2) provides that access to information must be provided in the form requested by an applicant, except in certain prescribed circumstances, including where:
…
(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or
(b) to do so would be detrimental to the proper preservation of the record, or
(c) to do so would involve an infringement of copyright, or
(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
Section 73 of the GIPA Act provides that access to information provided under the GIPA Act is unconditional. In particular, s 73(1) provides that:
An agency is not entitled to impose any condition on the use or disclosure of information when the agency provides access to the information in response to an access application.
Section 18 of the Privacy and Personal Information Protection Act 1998 provides:
18 Limits on disclosure of personal information
(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless -
(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or
(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or
(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.
(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
Section 80 of the GIPA Act sets out those decisions which are 'reviewable decisions' under Part 5. Relevantly, "a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)" is a reviewable decision pursuant to section 80(i).
A person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for review of that decision (s 100 of the GIPA Act). The onus on the agency is to establish that its decision is justified (s 105(1) of the GIPA Act).
Section 63 of the Administrative Decisions Review Act 1997 provides:
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.
[4]
Mr Snape's Submissions
Mr Snape sets out an acrimonious history with the son of one of his neighbours commencing from about December 2020. I do not intend to set out in detail each of the allegations concerning Mr Snape and that person. However, relevantly for determining this application, Mr Snape makes various allegations of intimidation, trespass, harassment and abuse which, despite him complaining and making complaints to the police, he says is continuing. Mr Snape requested the police take out an AVO to protect him and his family, which the police declined to do. Mr Snape is therefore seeking the name of his neighbour's son so that he can commence his own private AVO to seek protection.
Mr Snape sets out relevant parts of the GIPA Act and emphasises the objectives of that Act, which are found in s 3. He also refers to the overriding presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Putting aside Mr Snape's complaints of purported inaction and purported insufficient investigation by the NSW Police, which is not within my remit for consideration at all, he contends that the Tribunal should set aside the two decisions of the Respondent in refusing his access application.
Importantly, at Part 8 of Mr Snape's submissions he includes the following:
"…
Police released the name of the informant in another FOI subsequent to my appeal on 24 March 2021 GIPA 2021 - 14276
Police did not block out under T(3) of the name [Mr Snape's neighbour's son's name] so there is no reason not to release the name in my appeal of the 02 March 2021
I am asking for a name for self-protection purposes it should have been automatic. …"
(Emphasis added.)
The above part of Mr Snape's submissions was brought to my attention by Mr McDonnell on behalf of the Respondent. Mr McDonnell submitted that the Tribunal ought not to proceed to determine this matter in favour of Mr Snape as the relevant name he seeks to be provided has already been disclosed by the Respondent in the COPS case report C80541986 and is now known to Mr Snape as set out at Part 8 of his written submissions.
I asked Mr Snape whether there was any merit in Mr McDonnell's submissions. He said there was not and that, although the name of his neighbour had been disclosed in documents provided to him in the related access application, he was still seeking the Tribunal to make a determination in this application.
Mr McDonnell's submission was very clear and in my mind persuasive.
[5]
Evidence
Mr Snape's evidence consisted of:
Application filed 2 March 2021;
Bundle filed 18 June 2021.
The Respondent's evidence consisted of a bundle filed 3 May 2021 and a confidential bundle including the redacted information.
The Tribunal notes the submissions filed by Mr Snape and the Respondent.
[6]
Consideration
When applying the public interest test in s 13 of the GIPA Act, the Tribunal undertakes a two-step approach to the question of whether information has been properly refused if a conclusive presumption is not relied upon.
The agency in refusing to disclose information must rely on one or more of the s 14 table considerations. The Tribunal is then tasked to weigh the Respondent's case against the factors favouring disclosure, being mindful of the injunctions that appear in both ss 12 and 15 of the GIPA Act. (See Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [24]‑[26].)
The s 14 inquiry is directed to the administrative structure and context, and its conditions, to which the document or information belongs.
[7]
My consideration
As pointed out in oral submissions by Mr McDonnell, the information sought by Mr Snape has already been inadvertently disclosed to him by the Respondent. The COPS case report reveals the name of Mr Snape's neighbour.
After reviewing the evidence, and in particular the confidential bundle, I find the various parts of the information not disclosed have been appropriately redacted by the Respondent under cl 3(a) and (b) of the table to s 14 of the GIPA Act, or, that the information does not relate to the request (s 74 of the GIPA Act).
I am satisfied that the Respondent has justified that cl 3(a) and (b) are relevant public interest grounds against disclosure of the information that has been redacted as it would reveal the personal information of persons if it was released. I am also satisfied that the release of the information would lead to a breach of an information protection principle under the Privacy and Personal Information Protection Act.
[8]
Balancing the public interest test
The question for the Tribunal is to determine whether the Respondent's decision as a whole to refuse to provide access to the information as requested by Mr Snape is justified. I have found that the Respondent has justified two of the public interest considerations against disclosure. The Tribunal must now decide whether access to the information as sought by Mr Snape is justified when weighed against the presumption in favour of disclosure pursuant to s 12 of the GIPA Act and the public interest considerations against disclosure.
I find that the public interest considerations against disclosure, on balance, do outweigh the public interest considerations in favour of disclosure.
I find that Mr Snape's personal factors weigh in favour of disclosure (s 55 of the GIPA Act). His motives for release of the name of the neighbour for which he seeks to bring an AVO in my view add weight for granting the access application. However, as conceded by the Respondent, the name of that person has already been disclosed. In the circumstances, Mr Snape's motives for the application have been satisfied.
Overall, I am not satisfied that Mr Snape's personal factors weigh in favour of disclosure of the remainder of the information, as the protection of the identity of third parties, whose personal information has been redacted, will not be able to be maintained if disclosed. Further, the decision to redact information pursuant to s 74 of the GIPA Act ought not be disturbed.
Accordingly, the decisions under review are affirmed.
[9]
Orders
1. The decisions made by the Respondent on 11 February 2021 and 23 March 2021 are affirmed.
2. The application is otherwise dismissed.
[10]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 July 2021