Tedder v Commissioner of Police, NSW Police Force

Tribunal's jurisdiction and powers

1. The Tribunal's jurisdiction to conduct this review derives from s. 100 of the GIPA Act read with s. 28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
2. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s63(3).
4. The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act, and specifically: (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.
5. Access to the information sought must be provided by the Agency in the way requested by the Applicant unless, according to section 72(2): (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.
6. Reiterating the unconditional nature of access granted, section 73 states: 73 Access to be unconditional (1) 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. (2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.
7. The Respondent's decision to allow the Applicant access to view the 3D animated reconstruction, but to refuse to provide him with a copy, is a reviewable decision according to Section 80(i) of the GIPA Act as it is: "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)"
8. Relevant to these proceedings, the public interest considerations against disclosure in the Table to section 14 are that disclosure of information could reasonably be expected to: 1(f) "prejudice the effective exercise by an agency of an agency's functions"; or 2(b) "prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law"
9. The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
10. In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
11. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].
12. Section 13 requires the decision maker to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
13. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. Under section 55 of the GIPA Act, the Tribunal is entitled to consider the Applicant's motives for making the application to the extent that it is relevant to whether disclosure could reasonably be expected to have any of the effects referred to in clauses 2 - 5 of the Table to section 14. 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.
14. As expressed by SM Higgins in Cousins v Ambulance Service (NSW) [2014] NSWCATAD 48 at [62] - [64], once the balancing exercise is undertaken and it is found that there is an overriding public interest against disclosure, s72(2)(d) of the GIPA Act makes provision for the Agency to consider disclosing the information in a form other than that requested by the Applicant: Hence, I remain of the view that the circumstances set out in para 72(2)(d) of the GIPA Act are only applicable after an agency has identified any public interest consideration against the disclosure of the information in the form sought and where a public interest consideration against disclosure is identified, weighing that public interest consideration against the public interest consideration in favour of disclosure in the form sought (i.e. the s 13 test). In weighing the competing public interests the agency can take into account any relevant factor falling within s 55 and the inability to grant conditional access (see 73(1)). If the s 13 test is not satisfied, then subs 9(1) provides that the access applicant has a legally enforceable right to be provided with the information in the form sought. On the other hand, if the s 13 test is satisfied and there is an overriding public interest against disclosure of the information in the form sought, in my view, para 72(2)(d) makes provision for the agency to consider whether disclosure of the information sought, in a form, other than that requested by the access applicant, would alter the balance between the competing public interests so that the public interest considerations against disclosure no longer outweigh the public interest considerations in favour of disclosure if access is granted in an alternative form. This approach, in my view, is also consistent with the structured approach to decision making, under the GIPA Act, as noted by the Appeal Panel, in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [25].

Consideration

1. The Respondent's justification for refusing to provide the Applicant with a copy of the 3D animated reconstruction as requested was based on its evidence that "the release of information of this nature into the public domain, without the ability to impose controls as to the use or disclosure of such information, could reasonably be expected to undermine the value of reconstructions as an investigative tool".
2. The basis for this opinion, provided in a written statement by Senior Sergeant Arnold Jansen, the Commander of the Forensic Imaging Section of the Forensic Services Group within the NSW Police Force, and confirmed in oral evidence by Crime Scene Officer Domenic Raneri, was that three dimensional reconstructions created by the Forensic Imaging Section to assist police investigations were not intended for public release, and were only tendered in legal proceedings where the reconstruction was created on the basis of factual forensic evidence, so there was a high degree of confidence as to its accuracy. In contrast, the 3D animated reconstruction subject to these proceedings was created by the Forensic Imaging Section at the request of investigators to illustrate a number of varying and conflicting claims made by witnesses and investigator theories, for the purpose of giving the investigators a visual interpretation of those conflicting claims, and was not based entirely on factual forensic evidence. It represented "the most probable course of events having regard to the different witness accounts and forensic evidence at the scene", but was not intended to be a precise representation of events based wholly on factual evidence. It was a departure from the Forensic Imaging Section's usual product, and their concern was that this particular animated reconstruction or simulation could be used to undermine the integrity and credibility of their other reconstructions which were based entirely on factual forensic evidence in the course of an investigation or legal proceedings.
3. Additionally, the 3D animated reconstruction was said to include personal information as it identified various witnesses by surname in a manner which could not be removed easily and would result in up to 20% of the screen being obscured, and depicted with accuracy the layout of the home in which the 2009 shooting occurred.
4. The Respondent contended that disclosure without conditions on use as required by s15(e) of the GIPA Act could result in internet publication which would have the effect of revealing investigative methodology, would not allow for an explanation as to the context of the reconstruction, and could cause distress where the reconstruction depicted violent events such as these.
5. The Applicant's personal interest in the 3D animated reconstruction was uncontested. The "most probable course of events" depicted by the Forensic Imaging Section in the simulation was, in his submission, extremely accurate, and was the course of events accepted by the District Court. This was undisputed by the Respondent. He suggested that the Respondent could specify on its release that it was a simulation rather than a forensic evidence-based recreation, and that he had no intentions of publishing the material broadly but wanted to use the 3D animated reconstruction as "new material" in a submission for the purpose of reopening the coroner's erroneous findings, which he said were unfairly damaging to the police officers involved and which would otherwise sit there in perpetuity.
6. The Respondent's investigations into the 2009 incident, being the subject of the 3D animated reconstruction, are completed. The coronial inquest concluded six years ago and the criminal proceedings arising from the 2009 incident and its investigation have been finalised. The police officers prosecuted for perjury as a result of the investigations into the 2009 incident were acquitted. The 2009 incident, coronial inquest, Operation Calyx and Strike Force Portman, and the criminal prosecutions resulting from those matters, were matters of significant public interest and continue to be matters of significant public interest. The release of the 3D animated reconstruction of the 2009 events by the Respondent would certainly "promote open discussion of public affairs" and "inform the public about the operations of agencies" in terms of s12(2) of the GIPA Act. This is especially so in circumstances where the 3D animated reconstruction had not been tendered in court, and yet the Court had made findings regarding the subject incident reflecting those depicted in the animation.
7. The public interest considerations in favour of disclosing the material in these proceedings are strong and I afford them substantial weight.
8. The public interest considerations against disclosure of the material in these proceedings, being Clauses 1(f) and 2(b) of the table to s14 of the GIPA Act are relatively weak. I accept the Respondent's evidence that this particular 3D animated reconstruction was not based on entirely factual forensic evidence, and that it was highly unusual for the Forensic Imaging Section to have created this particular reconstruction in the manner it did. I don't accept that this would significantly affect the integrity or credibility of the Forensic Imaging Section. As submitted by the Applicant, every reconstruction relied on by the Respondent in a criminal prosecution would be subject to the Defence testing its accuracy. The extent to which a reconstruction is tested in each criminal prosecution would be different in each case, whether or not the Forensic Imaging Section had created the 3D animated, non-fact based reconstruction in this matter. The weight that I afford to any potential prejudice to the integrity of investigative methodologies, the enforcement of the law or the effective exercise by the Respondent of its functions is therefore minimal.
9. On the basis that the respondent's investigations into the 2009 police shooting of Adam Salter and its ramifications (including Operations Calyx and Strike Force Portman) are finalised, the Respondent's contention that the 3D animated reconstruction's release would prejudice preventing, detection or investigation of a contravention of the law or prejudice current investigations could only be relevant if considering the general release of 3D reconstructions to unspecified ongoing investigations, not the specific release of this 3D reconstruction to any particular ongoing investigation. I therefore afford this factor little weight.
10. The respondent relied on s15(e) of the GIPA Act to support its submissions of an overriding public interest against disclosure, identifying several alleged effects which could or would occur if the 3D animated reconstruction was released without conditions. I don't accept those submissions. There is no basis for the Respondent stating the release of this 3D animated reconstruction in the absence of an ability to impose controls or conditions on its use or disclosure would create a "widespread revelation of investigative methodology", or why that would be problematic pursuant to the GIPA Act. Three dimensional reconstructions, animated reconstructions, or even re-enactments of events subject to prosecution are not a unique or revelatory investigative method. It may be revelatory that the Respondent's Forensic Imaging Section created a 3D reconstruction from non-forensic based evidence or facts, but there is no evidence before me of any likely resulting prejudice to investigative methodology, the respondent's functions, or any of the other public interest considerations against disclosure. If the respondent is suggesting that the release without conditions of the 3D animated reconstruction would create a loss of confidence in the respondent or its Forensic Imaging Section, this is specifically a consideration which must not be taken into account by me according to s15(c) of the GIPA Act.
11. On the evidence before me I do not accept that, in circumstances where "there is no capacity for the agency to control whom the audience is", that this prevents the agency from giving "any explanation as to the circumstances and context in which the recreation has been created". The Respondent has any number of ways open to it to provide such an explanation. It can provide a media or press release or statement or respond to questions in many forums. The fact that the context isn't provided to the audience seems to me to rather be a consideration which must not be taken into account pursuant to s15(d) of the GIPA Act.
12. I also have no evidence before me to support the Respondent's submission that the release of this particular 3D animated reconstruction without conditions could "occasion significant distress" because the reconstruction depicts violent or tragic events, what that distress would be, who would suffer the distress, nor how that is a relevant consideration for my determination.
13. The respondent did not specifically submit that Clause 3a of the Table to s14 of the GIPA Act was a relevant public interest consideration against disclosure, but submitted in the context of proposing to provide the Applicant with an edited version of the 3D animated reconstruction that it contained personal information, being the surnames of individuals involved in the incident depicted in the reconstruction, and the layout of the premises in which the event occurred. The surnames of individuals present at the 2009 shooting depicted in the 3D animated reconstruction are a matter of public record as a result of the coronial inquest and criminal proceedings. Their positions and actions during the incident, and the premises in which the incident occurred, as variously described by different witnesses, are also a matter of public record. I fail to see how the identification of individuals in the 3D animated reconstruction or the layout of the premises is personal information within the meaning of the GIPA Act, but its weight as a public interest consideration against disclosure would be minimal if it were.
14. Applying the balancing exercise required by s13 of the GIPA Act, the public interest considerations in favour of disclosure clearly, in my view, outweigh those against disclosure.
15. In circumstances where there is no overriding public interest against disclosure outweigh those against disclosure, there is no need to consider providing access in a form other than that sought by the Applicant under s72(2)(d).
16. Accordingly, the Respondent's decision regarding the CD containing the 3D animated reconstruction is set aside and these reasons for decision are made in substitution, pursuant to s63(3)(c) of the ADR Act.

Orders 1. The reviewable decision in relation to the CD containing the 3D animated reconstruction is set aside. 2. The CD containing the 3D animated reconstruction should be released to the Applicant.

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: 19 July 2017