Vandi (Formerly known as Jones) v Commissioner of Police, NSW Police Force

Application for administrative review

1. On 1 November 2023, the Tribunal received the current application for administrative review, which raised a single ground - "I'm asking only about my own personal information held by NSW Police".
2. I note that the applicant did not file any evidence in support of the application.

Procedural matters

1. Senior Member Perrignon conducted a case conference on 27 November 2023, at which the applicant was self-represented and Ms C Tipene, Sparke Helmore Lawyers, appeared for the respondent. The Senior Member ordered the respondent to file and serve all evidence and submissions by 22 December 2023 and he ordered the applicant to file and serve all evidence and submissions by 22 January 2024. He ordered the respondent to file and serve any evidence and submissions in reply by 5 February 2024. He also ordered the respondent to lodge unredacted documents with the Tribunal on a confidential basis by 5 February 2024. He ordered the parties to provide each other with a list of all witnesses required for cross-examination by 12 February 2024 and he listed the matter for hearing on 26 February 2024.
2. On 22 December 2024, Principal Member Simon extended the time for compliance with each of the directions and confirmed the hearing date.

The hearing

1. The matter came before me for hearing on 26 February 2024. The applicant appeared in person and he was assisted by a Farsi interpreter. Ms Tipene appeared for the respondent.

Application to amend the applicant's name

1. When the matter commenced, the applicant stated that he had changed his name to "SAM VANDI" and he produced his ImmiCard as evidence of this.
2. The respondent did not object to the applicant's name being amended in these proceedings.
3. By consent, I ordered that the name of the applicant be amended to "Sam Vandi (formerly known as Kevin Jones)".

Respondent's opening argument

1. Ms Tipene stated that the decision under review is that dated 18 October 2023, in which the respondent refused to provide the applicant with access to BWV footage that was recorded during the applicant's interaction with NSW Police on 8 December 2020.
2. Ms Tipene referred the Tribunal to the public interest considerations both in favour of and against disclosure of the disputed information that were set out in the reviewable decision.
3. Ms Tipene relied upon the respondent's written submissions filed 5 January 2024 and stated that while the reviewable decision raised 6 public interest considerations against disclosure, the respondent now relied upon an additional consideration against disclosure, namely cl 3(c) to the table to s 14(2) of the GIPA Act.
4. Clause 3(c) to the table to s 14(2) of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to "prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings…"

Applicant's opening argument

1. The Tribunal asked the applicant why he believes that the reviewable decision should not be affirmed as the correct and preferable decision.
2. The applicant said that he would accept what the respondent decided "but only if I was searched with other people". He then stated that all he wants is "footage of my own strip search - about 1 minute in total - when I was searched" and "audio" if it exists.
3. The Tribunal asked the applicant to explain the grounds that he relies upon to establish that he is entitled to access to the footage and audio. He replied to the effect that "when they were there for about 5 minutes, they touched my bottom and private area".
4. However, the applicant subsequently stated that he believed that the footage would show that he was the victim of an indictable offence" and he asserted that when the police entered the premises, he was "sleeping on the floor". The police entered his room and told him that he was under arrest and they placed him in hand-cuffs (with his hands behind his back) and rolled him over so that he was lying on his back. One of the officers then "took my pants off half way", but did not say anything. That officer then "played with my genitals - he touched my genitals 2 or 3 times".
5. The applicant stated that he did not complain about this alleged incident to anyone and he did not report it to any medical practitioner or other agency. However, he then asserted that he has "other matters" before the Courts and that he feels that the BWV footage would assist him with those matters.

The evidence

1. Ms Tipene stated that the respondent relied upon a Statement of Detective Senior Constable Nathan Jones dated 10 January 2024. The applicant stated that he did not wish to cross-examine the witness and the statement was admitted into evidence and marked as Exhibit 1.
2. I note that DSC Jones stated that he applicant is known to him in the course of his duties as an officer of the NSWPF. On 8 December 2020, he was present at the property at which the applicant was arrested and, at the time of the arrest, the applicant was known as "Samad Jaderi". He was not the officer who was wearing the BWV device at the time of the arrest, but he was present during the course of the arrest and he has had a number of interactions with the applicant regarding matters relating to his arrest.
3. DSC Jones expressed serious concerns about the disclosure to the public of BWV footage captured by NSWPF in the course of their duties. He outlined specific concerns in a separate confidential statement dated 10 January 2024.
4. In relation to confidential information and operational policing, DSC Jones stated that in his experience, when an informant speaks to the NSWPF or provides a statement, they are advised that the information they give is confidential, including their identity and the content of their statement, and assured that this information will not be revealed other than in connection with the criminal proceedings. In some cases, informants are given a pseudonym for court matters.
5. DSC Jones stated that when confidential informants are engages, the circumstances by which they come to assist the NSWPF is also kept confidential. This is important, because often confidential informants are known or associated with the person of interest and the disclose information about how they have come to the attention of NSWPF can reveal their identity. There is a risk that reprisal action may be taken against them and maintaining their confidentiality is vital. If NSWPF are unable to give assurances as to confidentiality, individuals will not be willing to participate and, if required to participate, will not do so fully and frankly. This will significantly impact on the NSWPF's ability to conduct serious criminal investigations.
6. As to the disclosure of police methodology and prejudice to the NSWPF's functions, DSC Jones stated that the NSWPF uses a range of investigative tools, methods and procedures in order to safely and lawfully carry out policing activities. The BWV footage in issue in this matter records the NSWPF discharging some of these activities. While the applicant was present for part of the BWV footage, he was not present for the duration of the footage and it records the NSWPF moving through the premises in the absence of the applicant.
7. DSC Jones also stated that while the applicant was searched (and has firsthand experience of being searched), that is not the same as having a copy of BWV footage and being able to study or revisit the techniques used by NSWPF during the search. He stated that if the BWV footage is disclosed to the public, it would reveal NSWPF techniques and enable persons to modify their behaviour to avoid detection.
8. In relation to prejudicing court proceedings, DSC Jones stated that disclosure of the BWV footage obtained in the course of an arrest can prejudice court proceedings where the associated criminal matters have yet to be finalised (or commenced). For example, a person could use information contained in the footage to discuss evidence with other potential witnesses. The integrity of evidence is critical to successfully putting an alleged offender before the Court.

Confidential Documents

1. The respondent lodged a confidential bundle of the documents, without redactions, with the Tribunal and the Tribunal determined that it was appropriate to conduct a confidential hearing in the applicant's absence under s 107 of the GIPA Act and the applicant was instructed to leave the hearing room.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. [NOT FOR PUBLICATION]
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]
15. [NOT FOR PUBLICATION]
16. [NOT FOR PUBLICATION]
17. [NOT FOR PUBLICATION]
18. [NOT FOR PUBLICATION]

Resumption of the open hearing

1. The Tribunal concluded the confidential hearing and resumed the open hearing in the applicant's presence.
2. The Tribunal expressed the view that having viewed the relevant parts of the BWV footage, the footage does not support the applicant's allegations to the Tribunal that he was the victim of a criminal offence that involved a police officer "playing with his genitals".
3. The Tribunal then asked the applicant if he wished to make any other submissions in support of his application. He replied "no".

Respondent's submissions

1. The respondent filed written submissions on 15 January 2024. These addressed the reviewable decision, the public interest considerations against disclosure that the respondent relied upon in making that decision and the additional ground that was alluded to the opening argument.
2. The respondent discussed the public interest test under s 13 of the GIPA Act and the decision in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 (Flack), in which the Administrative Decisions Tribunal held that in all cases other than those involving Sch 1 of the GIPA Act, agencies are to apply the public interest test by: (1) identifying the public interest in favour of disclosure; (2) identifying the public interest against disclosure (with reference to the Table); and (3) determining where the balance lies.
3. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Administrative Decisions Tribunal noted that when weighing the public interest considerations in favour of disclosure against those against disclosure, the balancing of competing interests 'is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation'. That is, a decision maker must simply balance the competing public interest factors for and against disclosure in each specific case, rather than apply some test for determining whether there is an overriding public interest against disclosure of the information.

Public interest considerations in favour of disclosure

1. The respondent's solicitors identified the following public interest considerations in favour of disclosure of the disputed information: 1. The records generally contain information that relates to the applicant or which is know to him (but noting that some of the information is personal information about third parties); 2. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; 3. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public; 4. Disclosure of the information requested could reasonably be expected to promote accountability and transparency of NSWPF; 5. The public has a general right to access Government information held by agencies; 6. Disclosure of the information could promote accountability of police investigations and actions; and 7. Disclosure of the information could be expected to facilitate the administration of justice.

Public interest considerations against disclosure

1. As indicated in the respondent's opening argument, the respondent relied upon cll 1(f), 1(f), 2(b), 3(a), 3(b), 3(c) and 6 of the Table to s 14(2) of the GIPA Act.
2. The respondent stated that the public interest considerations against disclosure depend on whether the disclosure 'could reasonably be expected to' have the stated effect. In Flack, the Tribunal held that the proper construction of 'could reasonably be expected to' in the GPA Act was to give the words 'their ordinary meaning'.
3. Further, the test of 'could reasonably be expected to' is an objective one and a question of fact. The 'reasonable expectation' means something that is 'more than a mere possibility, risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived': see Leech v Sydney Water Corporation [2010] NSWADT 298 (Leech).
4. The respondent argued that the evidence of DSC Jones supports its reliance on the identified public interest considerations against disclosure, as follows:

Clause 1(d)

1. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri) at [33], the Appeal Panel of the Administrative Decisions Tribunal held that the question as to whether information is 'confidential information' is to be examined by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The Appeal Panel also held that in considering confidentiality, focus should be on the point of receipt, and the administrative standards and community understandings which surrounded it (Camilleri at [34]).
2. This approach was upheld in NSW Henry George Foundation v Director General, Department of Attorney General and Justice (NSW) [2013] NSWADT 2 at [37] to [42]; and Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 at [47] to [49].
3. In Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 at [69], Smart AJ held that there is a strong public interest in criminal offences being reported to the police and sources of information not drying up.
4. In Camilleri, the Appeal Panel accepted that the public interest considerations against disclosure need to be considered at a broad operational level and those considerations are concerned with systemic features of the operation of government. It also observed that it would be usual to introduce considerations connected with the particulars of the instant situation at the stage of applying the public interest considerations against disclosure.
5. The respondent's core function is to provide police services for the State, which includes the prevention and detection of crime and the enforcement of the governing laws of the State, using all lawful means to deliver that function. One of the primary means by which the respondent delivers that function is by the collection of information from members of the public, who are the victims of or witnesses to crime. Information is collected on a confidential basis and that information is assessed so as to determine the extent to which it may be used as part of the investigative process and any prosecution that may follow.
6. Specific prejudice to the respondent by disclosure of the BWV footage was addressed in DSC Jones' confidential statement and the respondent's confidential submissions. The respondent argued that this consideration against disclosure should be given substantial weight.

Clause 1(f)

1. The respondent stated that another means by which the NSWPF delivers its core function is by the lawful exercise of certain powers, such as the execution of search warrants and exercise of powers of arrest.
2. The respondent argued that this consideration against disclosure should be given substantial weight.

Clause 2(b)

1. The respondent stated that this public interest consideration against disclosure is in similar terms to the exemption that applied under cl 4(1)(e) of Sch 1 of the now repealed Freedom of Information Act 1989 (NSW) (the FOI Act) in relation to the disclosure of documents that could reasonably be expected to 'prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law'.
2. Whilst cl 2(b) does not specifically refer to 'any lawful method or procedure', the respondent argued that methods and procedures for preventing, detecting and investigating crimes are encompassed by this item and case law about the exemption under cl 4(1)(e) of Sch 1 of the FOI Act can be relied upon by the Tribunal.
3. In UC v Commissioner of Police, NSW Police [2005] NSWADT 272, the Administrative Decisions Tribunal considered cl 4(1)(e) of Sch 1 of the FOI Act and stated: 32. … The exemption operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods: Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231. 33 For the exemption to apply, there is no need for an actual contravention of the law, since the exemption encompasses both actual and possible contraventions. The exemption is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law. The information contained in an exempt document might serve to disclose or confirm the lawful Police methods or procedures for preventing or detecting possible contraventions of the law.
4. The Tribunal accepted that approach in Sawyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 61.
5. The respondent argued that the BWV footage depicts officers of the NSWPF exercising their powers of arrest to arrest the applicant and perform other lawful activities. The disclosure of this footage to the public may reveal the manner in which police perform those functions, such that members of the public may modify their behaviour to hinder the effective discharge of those powers when performing similar activities. This could pose a serious and real risk to officer safety in undertaking such activities, as well as jeopardise public safety, and hinder police in the performance of their law enforcement function.
6. Therefore, this public interest consideration against disclosure should be given substantial weight.

Clause 3(a)

1. The respondent relied upon cl 3(a) to the extent that the BWV footage captures third parties. It is not relevant that the applicant may know the identity of the third parties in the footage.
2. In Commissioner of Police (NSW) v Field [2016] NSWCATAP 59, the Appeal Panel concluded that for personal information to have been 'revealed', it must have been publicly disclosed. It is not sufficient for it to have been disclosed to the applicant. There is no evidence before the Tribunal that the personal information contained in the BWV footage has been publicly disclosed.
3. The respondent argued that it is not possible to pixilate or sever the forage to remove third party personal information. In the alternative, it is unduly prohibitive to de-identify the footage as it relates to third parties.

Clause 3(b)

1. The respondent argued that cl 3(b) also applies to the BWV footage and that the IPP contained in s 18(1) of the PPIPA prohibits the disclosure of personal information to a person (other than the individual to whom the information relates) 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 s 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. The respondent argued that none of the exceptions in s 18(1) of the PPIPA apply to this matter and that disclosure of the disputed information would contravene that IPP.

Clause 3(c)

1. The respondent argued that this consideration applies to the BWV footage.
2. In Tallawoladah Pty Ltd v Department of Planning, Industry and Environment [2021] NSWCATAD 248, the Tribunal concluded that in order to make out this public interest against disclosure, it was necessary to provide: (a) which court proceedings would be prejudiced; (b) how the court proceedings would be prejudiced; and (c) the purpose for which the information was prepared.
3. The respondent relied upon DSC Jones' evidence and argued that this ground has been established.

Clause 6

1. In relation to this public interest consideration against disclosure, the respondent relied upon ss 39, 40 and 50A of the SDA. These provide, relevantly: 39 What is protected information? In this Division - protected information means - … (d) any information obtained from the use, in accordance with section 50A, of body-worn video by a police officer. 40. Prohibition on use, communication or publication of protected information (1) A person is guilty of an offence if - (a) the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and (b) the person knows that, or is reckless as to whether, the information is protected information, and (c) the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section. Maximum penalty - Imprisonment for 2 years. 50A Police use of body-worn video (1) The use of body-worn video by a police officer is in accordance with this section if - (a) the police officer is acting in the execution of his or her duty, and (b) the use of body-worn video is overt, and (c) if the police officer is recording a private conversation, the police officer is in uniform or has provided evidence that he or she is a police officer to each party to the private conversation. (2) Without limiting the ways in which the use of body-worn video may be overt for the purposes of subsection (1)(b), the use of body-worn video is overt once the police officer informs the person who is to be recorded of the use of body-worn video by the police officer. (3) The use of body-worn video by a police officer is also in accordance with this section if - (a) it is inadvertent or unexpected, or (b) it is incidental to the use of body-worn video by the police officer in the circumstances set out in subsection (1).
2. The respondent argued that by operation of s 50A of the SDA, the BWV footage is 'protected information' for the purposes of s 40 of the SDA. Therefore, to disclose the footage would be to contravene s 40 and this would be an offence. This is relevant to the Tribunal's consideration of this public interest consideration.
3. The Appeal Panel considered the application and interpretation of the SDA in the context of BWV and cl 6 of the table to s 14(2) of the GIPA Act in FDY v Commissioner of Police, NSW Police Force [2022] NSWCATAP 367. The Appeal Panel considered a number of matters involving BWV and the application of the public interest against disclosure at Table 6 - Secrecy provisions: Cheung v Commissioner of Police [2019] NSWCATAD 249 (Cheung); FDY v Commissioner of Police [2021] NSWCATAD 285 (FDY); Morgan v Commissioner of Police [2021] NSWCATAD 173 (Morgan); and Wojciechowska v Commissioner of Police [2021] NSWCATAD 210 (Wojciechowska).
4. The Appeal Panel undertook a comparative analysis of the relevant authorities' interpretation of the provisions at paras [51] to [58] of FDY. It also provided additional commentary with respect to the merits of the application of the public interest against disclosure at para [60] and expressed the view that it was a relevant consideration that one of the objects of the SDA was to restrict the use and communication of information obtained under the SDA.
5. In FDY, the Appeal Panel stated, relevantly: 61. The Appeal Panel distinguishes … Morgan and … Wojciechowska, (on the basis that) the applicant in each case had established a special interest in accessing the footage and such consideration was relevant in assessing the public interest criteria in favour of disclosure…
6. In Cheung, the Tribunal observed that it was Parliament's intention that "the use, communication and publication of information obtained from the use of body-worn video by a police officer is to be generally prohibited unless necessary for a specified purpose": at [43]. The Tribunal stated: 43. … The fact that significant penalties apply to an authorised disclosure of such information highlights the seriousness of the Parliament's intention to significantly restrict disclosure. The overwhelming policy considerations behind such a prohibition relate to the integrity of investigations and other law enforcement activities and the privacy of the individuals concerned. These are very important considerations and the limited nature of the exceptions to the prohibition demonstrates an intention to strictly control information obtained through a surveillance device, including body-worn video.
7. The respondent argued that the applicant has not clearly articulated a special interest that favours disclosure of the BWV footage in this case such that the Tribunal ought to disclose it.

Balancing the public interest

1. The respondent argued that on balance the public interest considerations against disclosure significantly outweigh those in favour of disclosure.

Correct and preferable decision

1. The respondent concluded that the correct and preferable decision for the Tribunal to make is to affirm the decision under review.

Applicant's submissions

1. The Tribunal asked the applicant if he wished to make any other submissions in support of his application. He replied "no".

Decision reserved

1. The Tribunal reserved its decision.

Consideration

1. I am satisfied that the reviewable decision is that of the respondent dated 18 October 2023.

Legal principles and relevant legislation

1. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
2. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 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.
3. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].
4. Section 9(1) of the GIPA Act relevantly provides: 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) unless there is an overriding public interest against disclosure of the information.
5. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
6. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
7. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
8. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
9. In Flack and Hurst, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: (1) identify the public interest in favour of disclosure (s 12); (2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
10. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17].
11. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
12. Section 14 relevantly provides: 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.
13. Clause 1(d) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions.
14. Clause 1(f) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
15. Clause 2(b) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law.
16. Clause 3(a) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.
17. Clause 3(b) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to contravene an information protection principle under the PPIPA or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 (NSW).
18. Clause 3(c) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,
19. Clause 6(1) of the Table to s 14(2) provides that there is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
20. Clause 6(2) of the Table to s 14(2) provides that the public interest consideration under cl 6(1) extends to consideration of the policy that underlies the prohibition against disclosure.
21. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104] (Searle). Subsections 15(a) to (d) operate to promote disclosure of information and promotion of the object of the GIPA Act notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the Act.
22. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech at [25].
23. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
24. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).
25. Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

Public interest considerations in favour of disclosure

1. I agree with the public interest considerations that the respondent identified in the reviewable decision, namely: 1. The records generally contain information that relates to the applicant or which is known to him (but noting that some of the information is personal information about third parties); 2. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance; 3. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public; 4. Disclosure of the information requested could reasonably be expected to promote accountability and transparency of NSWPF; 5. The public has a general right to access Government information held by agencies; 6. Disclosure of the information could promote accountability of police investigations and actions; and 7. Disclosure of the information could be expected to facilitate the administration of justice.
2. In my view, these factors should be given strong weight.

Public interest considerations against disclosure

1. I agree with the public interest considerations against disclosure that have been identified by the respondent in the reviewable decision and the submissions filed on 15 January 2024.

Cl 1(d) of the Table to s 14(2)

1. Based upon the decisions in Simring and Camilleri, which I have applied to this matter, I am satisfied that cl 1(d) has been properly relied upon by the respondent and that the question as to whether information is confidential information for the purposes of cl 1(d) is "to be examined primarily, at least by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received" and "should focus on the point of receipt, and the administrative standards and community understanding which surrounded it".
2. I am satisfied that the BWV footage was obtained during the execution of a search warrant.
3. I accept the evidence of DSC Jones and I am satisfied that the BWV footage was obtained in circumstances of confidentiality. His evidence was not challenged by the applicant and I am satisfied that this consideration should be given significant weight.

Cl 1(f) of the Table to s 14(2)

1. Based on the unchallenged evidence of DSC Jones, I am satisfied that cl 1(f) has been properly relied upon by the respondent in deciding not to release the BWV footage. I am satisfied that this consideration should be given significant weight.

Cl 2(b) of the Table to s 14(2)

1. Based on the unchallenged evidence of DSC Jones, I am satisfied that the respondent has properly relied upon cl 2(b) and that this consideration should be given significant weight.

Cl 3(a) of the Table to s 14(2)

1. I am satisfied that the withheld information comprises personal information as defined in cl 4(1) of Sch 4 of the GIPA Act. In this matter, there is no evidence before me that indicates that the withheld information has already been publicly disclosed. In my view, this factor should be given significant weight.

Cl 3(b) of the Table to s 14(2)

1. Based upon the evidence before me, I am satisfied that disclosure of the withheld information could reasonably be expected to contravene an information protection principle under the PPIPA, as disclosure under the GIPA Act is not for a purpose directly related to the purpose for which the information was collected.
2. There is no evidence before me that supports a finding any of the permitted exceptions in s 18(1)(a) to (c) apply to this matter. In my view, this consideration should be given strong weight.

Cl 3(c) of the Table to s 14(2)

1. Based on the evidence before me, I am satisfied that the respondent properly relied upon cl 3(c) and that disclosure of the BWV footage could reasonably be expected to prejudice any court proceedings by revealing a matter prepared for the purposes of or in relation to current or future proceedings.
2. In my view, the evidence of DSC Jones establishes the matters that Tribunal identified in Tallawoladah as being necessary to rely upon this public interest consideration against disclosure. I am satisfied that this consideration should be given significant weight.

Cl 6 of the Table to s 14(2)

1. Based on the evidence before me, I am satisfied that the BWV footage is properly considered "protected information" for the purposes of s 50A of the SDA and that disclosure of it would therefore contravene s 40 of the SDA.
2. In Cheung, the Tribunal noted that it was Parliament's intention that the use, communication and publication of information obtained from the use of body-worn video by a police officer is to be generally prohibited unless necessary for a specified purpose.
3. I agree with the respondent's argument that the applicant has not established a special interest that favours disclosure of the BWV footage. I specifically rejected the applicant's argument to the effect that he requires the BWV footage for the special purpose of establishing that he was the victim of an indictable offence, which was committed by a police officer during his arrest and personal search that is the subject of part of that footage.
4. In my view, cl 6 should be given significant weight.

Balancing the public interest

1. I have applied the public interest test to this matter as required by the decision in Leech.
2. Having done so, I am satisfied that the public interest considerations against disclosure of the BWV footage outweigh those in favour of its disclosure and that there is an overriding public interest against its disclosure.

Conclusion

1. I am satisfied that the correct and preferable decision is to affirm the decision under review.

Order 1. The decision under review is affirmed. 2. Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked "NOT FOR PUBLICATION", other than to the respondent (the Commissioner of Police, NSW Police Force) is prohibited.

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 11 March 2024 - Date changed on coversheet 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: 11 March 2024