Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Police v DYD [2020] NSWCATAP 224 Hearing dates: 11 September 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President Dr Lucy, Senior Member Decision: (1) Leave to appeal on a question other than a question of law is refused. (2) The Tribunal's orders 1 and 2 made on 1 May 2020 are affirmed. (3) The Tribunal's order 3 made on 1 May 2020 is set aside. The Tribunal is directed to reconsider that order, without further evidence, in accordance with the findings in these reasons and any further submissions the Tribunal may allow. Catchwords: APPEAL – questions of law – making a finding of fact for which there is no evidence – meaning of giving "proper, genuine and realistic consideration" to a matter; STATUTORY INTERPRETATION – meaning of s 75 of Government Information (Public Access) Act 2009 ORDERS – scope of remittal powers under s 63 and s 65 of Administrative Decisions Review Act 1997 (NSW) Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Government Information (Public Access) Act 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 32 Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 Department of Community Services and Latham [2000] NSWADTAP 21 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 Minister for Immigration and Citizenship v SZJSSH [2010] HCA 48, (2010) 243 CLR 164 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; (2019) 100 NSWLR 578 O'Grady v Sutherland Shire Council [2020] NSWCATAD 50 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662; [1986] HCA 7 Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165 Swift v SAS Trustee Corporation [2010] NSWCA 182 Texts Cited: None cited Category: Principal judgment Parties: Commissioner of Police (Appellant) DYD (Respondent) Representation: Counsel: R Mansted (Appellant) Solicitors: DYD (Self Represented) Crown Solicitor (Respondent) File Number(s): AP 20/23577 Publication restriction: Publication of the name of the respondent is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 119 Date of Decision: 1 May 2020 Before: A Christie, Senior Member File Number(s): 2019/00252570 REASON FOR DECISION Overview 1. The Commissioner of Police has appealed from a decision of the Tribunal under the Government Information (Public Access) Act 2009 (GIPA Act). The background to these proceedings is that DYD and his former wife are in dispute in the Family Court of Australia over various matters including the custody and access arrangements for their two children. Allegations have been made to police and DYD has complained about the conduct of police officers when investigating an allegation he made. DYD has applied to the Commissioner of Police on several occasions for access to information held about these allegations and complaints. 2. The application which is the foundation of the current proceedings was made on 30 June 2019 and requested the following information: "1. Information concerning my police complaints to Eastern Suburbs Command, including internal correspondence relating to those complaints, and drafts and final version of written correspondence (both internal and external communications), together with any notes (including handwritten notes), concerning the police complaints. 2. Information that was reviewed, considered or contemplated by Police in relation to my police complaints and/or responding (internally and externally), to those complaints. 3. For each of myself, my daughter [NOT FOR PUBLICATION], and my son [NOT FOR PUBLICATION], information relating to [NOT FOR PUBLICATION], [NOT FOR PUBLICATION], [NOT FOR PUBLICATION] or [NOT FOR PUBLICATION]. 4. For each of myself, my daughter [NOT FOR PUBLICATION], and my son, [NOT FOR PUBLICATION], in relation to COPS information that pertains to each of us over the last three (3) years: a. Date and time each COPS event was first created and details of the person who created the event (including their name, job title, role, location and branch of the NSW Police force); b. Date and time each COPS event was updated, modified, amended, changed, altered, edited or deleted c. Details of the person who undertook each Modification (including their name, job title, role, location and branch of the NSW Police force); d. Reason(s) for each Modification; e. Information the Modification pertains too; and f. Date and time each COPS event has been viewed and details of the person who viewed it (including their name, job title, role, location and branch of the NSW Police force); 5. For each of my GIPA access applications on 9 October 2018, and 22 January 2019, information relating to the consideration, review, determination and response to each of those GIPA access applications." [with subsequent corrections and amendments included] 1. After several procedural steps which are not relevant to any issue on appeal, the Commissioner made a decision about this access application on 17 October 2019. DYD applied to the Tribunal for a review of that decision. At the Tribunal hearing there were two categories of disputed information: 1. information about police complaints (the information listed in items 1 and 2); and 2. information about police accessing and modifying COPS Events (the information listed in items 4(b) – (f)). 1. Under s 58 of the GIPA Act, an agency may determine an access application in one or more of the following ways: 58 How applications are decided (1) An agency decides an access application for government information by— (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. 1. In relation to the two categories of disputed information, the Commissioner determined DYD's access application under s 58(1)(a) and s 58(d). Under s 58(1)(a) the Commissioner decided to provide access to some of the information about police complaints (the information requested in items 1 and 2). Under s 58(1)(d), the Commissioner refused to provide access to the remainder of the information about police accessing and modifying COPS Events (the information in items 4(b) – (f)). The reason for refusing to provide access to information was because there is an overriding public interest against disclosure. 2. In relation to information about police accessing and modifying COPS Events, the Commissioner's delegate wrote in the Notice of Decision that ". . .new documents would need to be created and I consider that this would be an unreasonable diversion of the agency's resources as the information is not readily available, and the current system does not allow us to interrogate and extract data in the form you are seeking." Before the Tribunal, the Commissioner did not argue that creating of a new document would be an unreasonable diversion of resources under s 58(1)(e) and s 60(1)(a) of the GIPA Act. Rather, the Commissioner submitted that access to the information about police accessing and modifying COPS Events was properly refused because he is not required to make a new record of information he holds: GIPA Act, s 75(2)(a). 3. Alternatively, the Commissioner submitted to the Tribunal that the decision under s 58(1)(d) of the GIPA Act, to refuse to give access to the information about police accessing and modifying COPS Events, was justified. The Tribunal rejected that submission and decided to remit that part of the Commissioner's decision to the Commissioner for a further decision: (1) That part of the decision dated 17 October 2019 of the Commissioner of Police which relates to Items 4(b) to (f) of the application made by DYD under the Government Information (Public Access) Act 2009 is remitted to the Commissioner of Police for a further decision to be made on the basis that the information in issue is subject to the Government Information (Public Access) Act 2009 and that clauses 1(f), 1(h) and 2(b) of the Table in s 14 of the Government Information (Public Access) Act 2009 are relevant to the decision. (2) The Commissioner of Police must make the decision under Order 1 and give notice of his decision to DYD within 30 days of the date of this order. 1. In relation to the information about police complaints, the Tribunal ordered the Commissioner to provide access to certain information but otherwise affirmed the Commissioner's decision. (3) The Commissioner of Police must release the information which appears beside the word Release in column 3 of the tables in paragraphs 80 and 81 of the decision in this matter within 30 days of the date of this order. (4) The decision dated 17 October 2019 of the Commissioner of Police is otherwise affirmed. Grounds of appeal 1. The Commissioner appeals from the Tribunal's decision on nine grounds. He has the right to appeal on a 'question of law' but needs leave before appealing on other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). 2. Grounds 1 and 2 relate to the information about police accessing and modifying COPS Events. The Commissioner submitted that the Tribunal erred in applying the test in s 75 of the GIPA Act. We have rejected those grounds of appeal because s 75 relates to how access is to be provided, not to whether an agency holds a record of the government information. The issue as to how access to the government information is to be provided does not arise until the agency has made a decision under s 58(1)(a) of the GIPA Act to provide access to the information. These grounds of appeal are not made out and the Tribunal's orders 1 and 2 are affirmed. 3. Grounds 3 – 7 relate to the information about police complaints. We have upheld grounds 3, 4 and 5 but not ground 6. The effect of our findings is that Order 3 made by the Tribunal on 1 May 2020 should be set aside. Alternatively to ground 6, the Commissioner submitted in ground 7 that the Tribunal failed to provide reasons for the decision as required by s 62 of the NCAT Act. The parties provided further written submissions on that point. Given that we have upheld ground 3, any conclusions we may reach on this topic would be by way of comment or observation. For that reason, we have decided not to address this ground of appeal. 4. By grounds 8 and 9 the Commissioner applied for leave to appeal on questions other than questions of law. Because of our findings in relation to the other grounds of appeal, we do not need to address those grounds. 5. DYD provided detailed written submissions and documentation in response to the Notice of Appeal and the Commissioner's submissions. The reason we have not referred to this material is that, where we have rejected the grounds of appeal, we have done so for reasons other than those put forward by DYD. He did not file a separate Notice of Appeal and, for that reason, was not seeking to have the Tribunal's orders varied. Appeal lodged within time 1. The Tribunal's decision is dated 1 May 2020. The Commissioner lodged the appeal on 29 May 2020. To be within time, the appeal must be lodged 28 days from the day on which the Commissioner was notified of the decision: NCAT Rules, r 25(4)(c). Rule 6 provides that if a time is to be reckoned by reference to a given day or event, the day of the event (in this case, the notification of the decision) is not to be counted. As the decision was handed down on 1 May 2020, that day is not to be counted. Twenty-eight days from 1 May 2020, not counting that day, is 29 May 2020. Consequently, the appeal was lodged within time. Information about police accessing and modifying COPS Events (items 4(b) – (f)) –grounds 1 and 2 Nature of the information 1. In summary, items 4(b) – (f) request information about the dates and times police officers viewed and modified certain COPS Events including details of the person who viewed or modified the COPS Event, the way in which the COPS Event was modified and the reason for any modification. The COPS Events were identified as those relating to DYD, his daughter and his son over a three-year period. The Commissioner did not give DYD access to any of this information or provide the information on a confidential basis to the Tribunal. Evidence about police accessing COPS Events 1. At [40] – [41], the Tribunal set out parts of an affidavit of Chief Inspector Holgate dated 20 December 2019. That evidence identified two kinds of audit process – a routine audit and a reverse audit. According to CI Holgate, a 'reverse' audit is required to generate the information requested about police accessing and modifying COPS Events. 2. Routine audits are carried out on all members of the Police Force who have access to databases. Significantly, this type of audit generates a report detailing each time a particular member has accessed COPS in the last 12 months. It is used as a corruption prevention strategy. A reverse audit, on the other hand, requires multiple audits to be conducted. CI Holgate explained that ". . . an audit on each particular search term or record must be run in COPS to determine who, if any, of the authorised users of COPS have conducted a search on that term or that record." He added that, "A reverse audit report would not usually be created for any purpose other than as part of a complaint investigation." Relevant parts of the legislative scheme 1. A person has a legally enforceable right to be provided with access to "government information", in accordance with Part 4, unless there is an overriding public interest against disclosure of the information (GIPA Act, s, 9). "Government information" is defined to mean "information contained in a record held by an agency": GIPA Act, s 3 (emphasis added). A "record" is defined in Cl 10 of Sch 4 to mean, "any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means." Under cl 12(1)(a) of Sch 4 a "reference in this Act to government information held by an agency includes a reference to information contained in a record held by the agency." 2. Under s 58 of the GIPA Act, an agency may decide an access application for government information in several ways. If an agency decides, under s 58(1)(a), to provide access to the information, it must then decide how access is to be provided. Part 4, Division 6 of the GIPA Act (s 72 – 79) deals with that topic including the form that access may take. Section 75 allows an agency to provide access "in response to an access application . . . .by making and providing a new record of that information". However, an agency is not required to do so. 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following— (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency. Commissioner's submissions to the Tribunal at first instance 1. The Commissioner relied on s 75(2)(a) and (c) of the GIPA Act for its "decision" to refuse to provide access to the information about police accessing and modifying COPS Events. 2. In submissions to the Tribunal, the Commissioner confirmed that he holds information about police accessing and modifying COPS Events but said that he has no obligation to create a new record of that information by conducting a reverse audit. The Commissioner's argument was that conducting a reverse audit of information held in COPS constitutes the creation of a 'new record' and s 75(2)(a) does not require the Commissioner to create a new record when giving access to information. The Commissioner also relied, less forcefully, on s 75(2)(c). In making those submissions, the Commissioner asked the Tribunal to depart from the principles enunciated in two first instance decisions – Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 32 at [22] – [23] and Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 at [72] – [75]. 3. In Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 32, the Commissioner produced an audit report on a confidential basis to the Tribunal, but submitted that the Commissioner was not obliged to create a "new record" of that information. The Tribunal emphasised at [22] that: "information in a database held by an agency is 'government information' in a 'record' for the purpose of the GIPA Act, to which a member of the public has a legally enforceable right of access, subject only to Schedule 2 of the Act and the public interest test: see s.4 and cl. 10 of Schedule 4 to the GIPA Act." 4. The Tribunal in Barrett then went on to consider whether providing access to the audit report required the agency to make a "new record" of that information pursuant to s 75(2)(a). At [23], the Tribunal held that " . . . the need to compile this information by conducting a search or printing an audit report does not constitute the creation of a new document for the purposes of s.75 of the GIPA Act." The Tribunal decided at [26], that the 'audit report' was government information held by the agency and there was no overriding public interest against disclosure of that information. 5. One issue in Denyer was whether access to an "audit report" should be refused under s 58(1)(d) of the GIPA Act because there is an overriding public interest against disclosure. The Tribunal characterised the information being sought as requiring "officer audits or 'non reverse' audits." (We understand that to be a reference to what CI Holgate called "routine" audits.) Before determining whether there was an overriding public interest against the disclosure of this information, the Tribunal held at [74], that: "In my view, such information lying dormant in the COPS system concerning auditable information would, for the purposes of cl 10 of Sch 4 constitute a record capable of being produced as information under the GIPA Act." 1. We understand this to be a finding that the audit report was "information contained in a record held by an agency" and was therefore "government information" as defined in s 3. No issue was raised in that case about the meaning or effect of s 75 of the GIPA Act. 2. Before the Tribunal at first instance in these proceedings, the Commissioner sought to distinguish Barrett and Denyer on two grounds: "First, the approach taken in Barrett and Denyer conflates the question of whether an agency "holds" information with the question of whether an agency is being asked to create a "new record" of the information it holds. . . . Secondly, . . . characterising a reverse audit as merely the searching and printing of COPS information (See Barrett at [23]) and therefore not a production of a new record for the purposes of s 75(2)(c) of the GIPA Act is not correct." Tribunal's decision 1. The Tribunal accepted CI Holgate's evidence saying at [52], that it was a necessary conclusion from that evidence that the information is a 'record' under cl 10 Sch 4 of the GIPA Act. DYD disputed the reliability of that evidence but, as we have said, he did not appeal from the Tribunal's decision. 2. The Tribunal decided that a reverse audit as described by CI Holgate, is not the making of a new record for the purposes of s 75(1) of the GIPA Act. At [58], the Tribunal rejected the Commissioner's submission and adopted the reasoning in Barrett and Denyer. The Tribunal also mentioned O'Grady v Sutherland Shire Council [2020] NSWCATAD 50 at [48] and [52], where the Tribunal characterised s 75 as providing an agency "with discretion to perform a positive act (creating a record) or to decline and not act in creating a record of the information." 3. The Tribunal noted at [57], that s 72 of the GIPA Act provides that government information in response to an access application may be provided in several different ways. The Tribunal reasoned, at [57], that "where it is established that a 'new record' is required to be brought into existence to satisfy a GIPA application, the agency has a discretion as to whether to facilitate access to the information by making that new record". At [70] the Tribunal summarised its conclusions: "In these proceedings the Respondent has submitted that it holds information responsive to Items 4(b) – (f) 30 June Application but it did not provide any compelling evidence to establish that a "reverse audit" was the only way the Respondent could disclose any of the relevant information, that a "reverse audit" was the making of a new record of information or that conducting a "reverse audit" was otherwise exempted under any other provision of the GIPA Act." 1. In summary, we understand the Tribunal's findings and reasoning to have been that: 1. for the purposes of s 75(2)(a) and (c) of the GIPA Act, "the information about police accessing COPS Events was contained in a 'record' under cl 10 of Sch 4 of the GIPA Act" (as per [32]); 2. "where it is established that a 'new record' is required to be brought into existence to satisfy a GIPA application, the agency has a discretion as to whether or not to facilitate access to the information by making that new record" (at [58]); 3. the evidence does not establish that a reverse audit is the only means of providing access to the relevant information; and 4. the evidence does not establish that conducting a reverse audit is the making of a new record of the information held by the agency. Grounds of appeal 1. Ground 1 relates to findings (2) – (4) listed above. Ground 2 relates to the first finding. 2. The Commissioner submitted that the third finding was illogical because the Tribunal did not explain what other means there may be of providing access to the information. In relation to the fourth finding, the Commissioner submitted that the Tribunal wrongly relied on the decisions in Denyer and Barrett because those cases involved what it referred to as "straight audits", not "reverse audits". 3. The Commissioner submitted that the first finding, that the information about police accessing COPS Events was contained in a "record" under cl 10 of Sch 4 of the GIPA Act, was illogical. The Tribunal's reasoning was said to be based on the factual finding that a 'reverse audit' was not the only way in which the Commissioner could provide the information sought. Furthermore, the Tribunal apparently accepted the unchallenged evidence of the Commissioner that "the type of audit required to produce the information sought . . .is known as the 'reverse audit'": Decision at [41] and [52]. 4. The Commissioner also sought to rely on a comment the Tribunal made in the transcript (Tab 47, page 648) as to the Tribunal conflating the meaning of "information" and "the record". Consideration 1. The transcript does not reflect the Tribunal's decision as to the meaning of particular terms in the GIPA Act. The content of the written reasons is the source of the Tribunal's understanding and reasoning on that issue. Consequently, we have not taken into account what the Tribunal member said during the hearing. 2. We reject the Commissioner's grounds of appeal because they are based on a misunderstanding of relevant parts of the legislative scheme. The Tribunal made several findings based on those misconceived submissions. 3. First, at [18], the Tribunal concluded that s 75(2) of the GIPA Act provides a "general administrative reason" for refusing to provide access to information: The GIPA Act also provides, in a number of provisions, that an agency may refuse to provide access for general administrative reasons (i.e. rather than on the basis of the content of the information under Items in the Table in s14 GIPA Act). One of these general administrative reasons arises in these proceedings, in respect of some of the information requested in the 30 June Application that remains in contention. Namely, the Respondent submits that providing access to the information it holds responsive to Items 4(b) – (f) 30 June Application would require the Respondent to make a new record of the information held, which the Respondent has the discretion (and, in this case, chooses) not to do (s75 (2) GIPA Act). 1. The question of how access to government information is to be provided under Part 4 Division 6 of the GIPA Act does not arise until the agency has made a decision under s 58(1)(a) to give access to that information. Before making such a decision the information must meet the definition of "government information" in s 4, that is, information "contained in a record" as defined in cl 10 of Sch 4. Section 75(2) does not provide a "general administrative reason" for refusing to provide access to information. 2. Secondly, the Tribunal concluded that the information about police accessing and monitoring COPS Events was contained in a "record" under cl 10 of Sch 4 of the GIPA Act. Because of the way the Commissioner framed his submissions, it is apparent that the Tribunal's finding was made in the context of the meaning of the word "record" in s 75. However, once the Commissioner had conceded that he held the information and that the information met the definition of "government information," it was not open for him to submit that the information is not contained in a "record" for the purposes of s 75. Section 75 does not relieve an agency of its obligation to provide access to information – it simply clarifies that it does not have to do so by way of the creation of a new record. In context, a "new record" must mean, in effect, "another record". 3. As there is no power under s 75 of the GIPA Act to refuse to provide access to government information, these grounds of appeal are not made out. Alternative submission 1. Alternatively, the Commissioner submitted to the Tribunal that the decision to refuse to give access to the information on the basis of an overriding public interest against disclosure of the information, was justified. The Commissioner argued that "there was an overriding public interest against disclosure of this information under items 1(f), (h) and 2(b) of the Table in s14 GIPA Act": Decision at [32]. As with the Commissioner's primary submission, this alternative submission assumes that the relevant information meets the definition of "government information" in the GIPA Act. 2. The Tribunal decided at [60] – [63], that it was unable to assess that submission because the Commissioner did not provide the relevant government information to the Tribunal, even on a confidential basis. In addition, while there was unchallenged evidence about the systemic level effects of releasing the information, there was no specific evidence on that issue. At [61], the Tribunal referred to CI Holgate's evidence: "CI Holgate's unchallenged evidence established, as reasonably expected, the systemic level effects of the release of the information that may be generally included in a 'reverse audit report'. However, no evidence was provided by the Respondent as to the specific information which would be disclosed by a reverse audit report in this case and whether the release of that information could reasonably expected to have the specified effects." 1. By Order 1, the Tribunal remitted that part of the decision to the Commissioner for a further decision to be made "on the basis that the information in issue is subject to the Government Information (Public Access) Act 2009 and that clauses 1(f), 1(h) and 2(b) of the Table in s 14 of the Government Information (Public Access) Act 2009 are relevant to the decision." Order 2 directed the Commissioner to make a new decision within 30 days. 2. The Commissioner appealed from these orders in grounds 1 and 2 of the Notice of Appeal. But those grounds of appeal only relate to the Tribunal's finding that a reverse audit is not the making of a new record of the information held by the agency under s 75 of the GIPA Act. No ground of appeal, on a question of law, related to the Tribunal's orders based on the Commissioner's alternative submission that there was an overriding public interest against disclosure of the information. The Commissioner did not apply for leave to appeal on any questions of fact associated with his alternative submission. Consequently, Orders 1 and 2 are affirmed. Information about police complaints (items 1 and 2) – grounds 3 - 7 Ground 3 – wrongly taking into account applicant's right to know about adverse findings against him Nature of the information 1. Ground 3 relates to the information in items 1 and 2 of DYD's access application, being the information the Commissioner holds concerning DYD's complaints against police. Commissioner's decision 1. Under s 58(1)(a) and s 58(1)(d) of the GIPA Act, the Commissioner decided to provide access to some information and to refuse to provide access to other information in Amended Schedule B. Under s 58(1)(d), the Commissioner decided to refuse to provide access to the information in Schedule C. The reason for refusing to provide access to information was that the Commissioner considered that there was an overriding public interest against disclosure of the information. Section 13 of the GIPA Act provides: "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." Tribunal's decision 1. At [64] of the decision the Tribunal was considering whether, in accordance with s 13, there was an overriding public interest against disclosure. One of the public interest considerations in favour of disclosure that the Tribunal took into account, was that "an individual has a right to know about adverse findings against him or her to check the accuracy of those findings". The Tribunal quoted Department of Community Services and Latham [2000] NSWADTAP 21 in support of that proposition. At [37] of that decision, the Appeal Panel of the Administrative Decisions Tribunal approved of the Tribunal at first instance taking into account " . . . the interest of an employee in knowing how his employer has investigated adverse allegations concerning his personal behaviour so as to allow him to consider the fairness and accuracy of what was recorded on his file . . ." Commissioner's submission 1. Ground 3 is that the Tribunal was wrong to take into account that consideration because it is irrelevant to these proceedings. The information in Amended Schedule B and Schedule C relates to an internal investigation into police officers' conduct. The complaints have nothing to do with DYD's conduct. DYD is not seeking information about adverse findings against him. Consideration 1. There was no evidence that any of the information sought contained any findings, adverse or otherwise, about DYD. Nevertheless, the Tribunal impliedly made a finding to that effect because it took that consideration into account. Making, or impliedly making, a finding of fact, for which there is no evidence, is an error of law: Kostas v HIA Insurance Services Pty ltd (2010) 241 CLR 390 at 418 [90] – [91]. 2. At [80] of the decision, the Tribunal set out a table of its findings. The Tribunal identified each of the public interest considerations against disclosure for each item of information. The Tribunal did not separately specify the public interest considerations in favour of disclosure for each item of information in amended Schedule B and Schedule C. Consequently, a fair reading of the Tribunal's reasons indicates that the Tribunal took that consideration into account for each item of information. It follows that in every instance where the Tribunal took into account DYD's right to know about findings about him, as a public interest consideration in favour of disclosure, the Tribunal has taken into account a consideration for which there was no evidentiary basis. As the decision as to whether there is an overriding public interest against disclosure of information involves a balancing exercise (GIPA Act, s 13), the error could have affected the outcome in each instance. 3. This ground of appeal warrants setting aside each decision to provide access to information. 4. As an alternative ground of appeal, the Commissioner submitted that the Tribunal denied him procedural fairness by taking this consideration in favour of disclosure into account. The Tribunal did not give the Commissioner an opportunity to respond to this basis for a proposed finding which was adverse to the Commissioner. That breach of procedural fairness provides an alternative basis for setting aside each decision to provide access to information. Ground 4 - Failing to give proper consideration to disclosing a child's personal information Ground of appeal 1. Ground 4 is that the Tribunal failed to give proper, genuine and realistic consideration to the Commissioner's contention that Item 3 (g) of the Table in s 14 of the GIPA Act was a public interest consideration against disclosure of the information contained at p 146 of Amended Schedule B. Tribunal's decision 1. In the table of its findings at [80], the Tribunal addressed each item of information. In relation to p 146 of Amended Schedule B, the Tribunal concluded that that information should be released. The public interest considerations against disclosure were listed as those in cl 1(d), (f), (h) and 3(a) of the Table to s 14. The Tribunal did not refer to cl 3(g) which states that: "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— . . . (g) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed." Consideration 1. At [37], the Tribunal referred to the Commissioner's submission as to the relevant considerations against disclosure: "The various Items in the Table in s14 GIPA Act submitted by the Respondent as applicable to various of the information (as specifically detailed in the tables in paragraphs 80 and 81 below) are: • Item 1 (d) – prejudice the supply to the agency of confidential information that facilitates the effective exercise of that agency's functions • Item 1 (f) – prejudice the effective exercise by an agency of the agency's functions • Item 1 (h) – prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) • Item 2 (b) – prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law • Item 3 (a) – reveal an individual's personal information • Item 3 (g) – in the case of the disclosure of personal information about a child – the disclosure of that information would not be in the best interests of the child." 1. Included at the end of that list is cl 3(g). However, the Tribunal did not mention that clause against p 146 of Amended Schedule B. The Tribunal did list cl 3(g) against pp 148-150. The reasons do not indicate why the Tribunal rejected cl 3(g) as a relevant consideration against disclosure of the information at p 146 of Amended Schedule B. 2. The language of "proper, genuine and realistic consideration," used in the Commissioner's formulation of ground 4, is problematic in the present context. The language has been used in a number of Federal Court cases, particularly in relation to judicial review of migration decisions, and derives from Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292. In Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], Basten JA referred to Khan's case and said of the language of "proper, genuine and realistic consideration": "That which had to be properly considered [in Khan] was 'the merits of the case'. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review." 1. This passage was quoted with apparent approval by French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZJSSH [2010] HCA 48, (2010) 243 CLR 164 at 175-176 [30]. The Full Federal Court has commented that "[w]hat is required is the reality of consideration by the decision-maker" before referring to the passage in Swift set out above (Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [45]; Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165 at [45]). 2. The Tribunal did not "as a matter of substance" have regard to the representations put by the Commissioner that cl 3(g) was relevant to the information at p 146 of Amended Schedule B (Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [45]). This error is an additional basis to ground 3, for setting aside that part of the decision in relation to the information at p 146 of Amended Schedule B. Ground 5 - misinterpretation of the statutory test in cl 3(g) 1. This ground relates to the Tribunal's decision to disclose the information at pp 148 – 150 of Amended Schedule B. At [68], the Tribunal considered the significance of cl 3(g): "Without any compelling evidence presented to the Tribunal as to why the disclosure of the information is not in the best interests of this child, in circumstances where the Applicant parent is not the alleged abuser, I have given little weight to Item 3 (g) of the Table in s14 GIPA Act as a public interest consideration against disclosure in respect of the redacted information on pages 148-150, as noted in the table in paragraph 80 below." 1. This statement reflects an unduly narrow interpretation of the interests of the child. While DYD was not the alleged abuser, cl 3(g) requires the Tribunal to consider the best interests of the child in a general sense, not just when the person applying for access to the information is the alleged abuser. Release of the information is release to the whole world, not just to the applicant. That point was made by the Tribunal in Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [104]. 2. This error is an additional basis to ground 3, for setting aside that part of the decision in relation to the information at pp 148 - 150 of Amended Schedule B. Ground 6 - misdirection as to test in s 13 of the GIPA Act Ground of appeal 1. This ground of appeal relates to s 13 and s 15 of the GIPA Act which are set out below: 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. 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. Tribunal's decision 1. The Tribunal's reasoning process is at [72] – [79]. The Tribunal noted at [72] that it had "considered and weighed the public interest factors for and against release of the information in contention." The Tribunal added that considerable weight had been given to the general presumption in favour of disclosure of government information. At [73] – [76], the Tribunal then identified the evidence which either persuaded or did not persuade it that there were relevant considerations against disclosure. 2. The challenged findings are at [77] and [78]: "77 In balancing the public interest considerations for and against disclosure of the information partially withheld in pages 42, 46-48, 138-146,148 and some of the redacted information on page 149 as noted in the table in paragraph 80 below and having regard to the weighing exercise of the competing public interest considerations against disclosure, balanced with the public interest considerations in favour of disclosure, I see nothing contrary to the principles set out in s15 GIPA Act which prevents the disclosure of the information in the manner set out in the table in paragraph 80 below. 78 In balancing the public interest considerations for and against disclosure of the information withheld in full in pages 30, 158-159, 162, 165, 183, 264, 272, 295-305 and 319-320 as noted in the table in paragraph 81 below and having regard to the weighing exercise of the competing public interest considerations against disclosure, balanced with the public interest considerations in favour of disclosure, I see nothing contrary to the principles set out in s15 GIPA Act which prevents the disclosure of the information in the manner set out in the table in paragraph 81 below." (Emphasis added.) Commissioner's submissions 1. According to the Commissioner, the Tribunal misapprehended the test in s 13 by asking itself, as the ultimate question, whether, following the weighing exercise, there was anything contrary to the principles in s 15 which prevents the disclosure of the information. The Tribunal should have asked itself whether the public interest considerations against disclosure in s 13 outweighed the public interest considerations in favour of disclosure and made that determination in accordance with the principles in s 15. Consideration 1. We agree with the Commissioner's articulation of the test for determining whether there is an overriding public interest against disclosure of government information. However, there was no material error in the Tribunal referring to the principles in s 15. We are not persuaded that, had the Tribunal applied the test differently, it could have made any difference to the outcome. Accordingly, we would not disturb the Tribunal's findings on the basis of ground 6. Inadequacy of reasons – ground 7 1. Alternatively, to ground 6, the Commissioner submitted that the Tribunal failed to provide reasons as required by s 62 of the NCAT Act in respect of the application of the test in s 13 of the GIPA Act. At the conclusion of the hearing we directed the parties to provide written submissions on that issue in light of the Court of Appeal's decision in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; (2019) 100 NSWLR 578. 2. Section 62 of the NCAT Act provides: "62 Tribunal to give notice of decision and provide written reasons on request (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following— (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party." 1. One of the grounds of appeal in Orr was that the Appeal Panel erred in finding that the reasons issued by the Tribunal were inadequate. 2. Bell P stated at 593 [54]-[55]: "Section 62(2) of the CAT Act might be thought to imply, on its proper construction, that, absent a request for reasons, reasons are not required for a decision of the Tribunal but this point, as Ward JA has pointed out in her concurring judgment, was not explored in argument. Section 62(3) of the CAT Act only applies, in terms, to "[a] written statement of reasons for the purposes of this section". Arguably, that confines its operation to reasons supplied pursuant to a request by a party for reasons after having been notified of a decision by the Tribunal. It is not unreasonable, however, to suppose that s 62(3) supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2). The balance of these reasons proceeds on that basis." 1. Ward JA agreed with Bell P. Her Honour added the following observations (at 603 [110]-[111]): "As his Honour has noted, the question before this court was as to what constitutes adequacy of reasons of a tribunal such as the New South Wales Civil and Administrative Tribunal (NCAT). What was not explored in this court (and appears not to have been explored in argument before the primary judge) was as to whether there was any duty (statutory or otherwise) on the part of the tribunal (including when constituted as an Appeal Panel) to give reasons in the circumstances of the present case; and, if not, what flowed from that in terms of the adequacy of the reasons that were given but that, on that hypothesis, there was no duty to give. The issue is by no means a simple one but it was simply not explored, and hence it is inappropriate to reach any concluded view on it, in the present case. 1. Because the issue was not explored in argument, the Court of Appeal did not definitively determine the nature or extent of any obligation to provide written reasons, in the absence of a written request. The Appeal Panel has considered this issue in Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182. 2. Given that we have upheld ground 3, any conclusions we may reach on this topic would be by way of comment or observation. For that reason, we have decided not to address this ground of appeal. Grounds 8 and 9 – grounds for which leave is required 1. Under s 80(2)(b) of the NCAT Act leave is required to appeal on grounds other than questions of law. We have explained why grounds 1 and 2 are based on a misunderstanding of relevant parts of the legislative scheme. The factual findings which the Commissioner has challenged in ground 8 are based on the same misunderstandings. Consequently we refuse to give leave to appeal from the findings that: It was a necessary conclusion from CI Holgate's evidence that information responsive to items 4(b) – (f) of the 30 June application held by the Respondent in COPS is a 'record' under cl 10 of Schedule 4 to the GIPA Act (Reasons at [52]. A reverse audit was not the only means of providing access to the information sought at items 4(b) – (f) of the 30 June applications (reasons [58]). A reverse audit would not constitute the making of a new record of the information held by the Commissioner (Reasons [58]). 1. Ground 9 challenged the way the Tribunal had exercised the discretion when making Order 3. Because we have decided to set aside that order on other grounds, there is no need to consider this ground of appeal. Appropriate orders 1. In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. Options include affirming or setting aside the decision under appeal and directing the Tribunal to reconsider the whole or any part of the case: NCAT Act, s 81. If we consider the grounds of appeal warrant a new hearing, we may deal with the appeal by way of a new hearing: NCAT Act, s 80(3). 2. For the reasons we have given, we have affirmed Orders 1 and 2 of the Tribunal which relate to the information about police accessing and monitoring COPS Events. However, the Tribunal did not specify whether it made that decision under s 63 (the provisional remittal power) or s 65 (the final remittal power) of the Administrative Decisions Review Act 1997 (NSW). The Appeal Panel outlined the issue in Webb v Port Stephens Council [2020] NSWCATAP 152 at [24] – [25]: "24 If the Tribunal remits a decision under the 'provisional remittal power,'' the administrator may affirm or vary the decision or make a new decision in substitution for the decision set aside. If the administrator varies or sets aside the decision and makes a new decision, the original application for review is taken to be an application for review of the new decision. The applicant may either proceed with the application for review of the new decision or withdraw the application: s 65(3) and (4). . . . 25 If the Tribunal remits a decision to the administrator under the 'final remittal power' in s 63(3)(d) of the Administrative Decisions Review Act, there are no machinery provisions. The Tribunal has made a final decision and its administrative review jurisdiction is exhausted." 1. We understand the Tribunal to have remitted the decision under the provisional remittal power, because the Tribunal did not set aside the Commissioner's decision as it would need to do, before remitting it, under s 63(3)(c) of the Administrative Decisions Review Act. When a decision is remitted to an administrator under s 65 of that Act, it is the administrator who determines whether the decision should be affirmed, varied or set aside (see s 65(2)). Further, the Tribunal indicated that, because it did not have the relevant information responsive to items 4(b) – (f), it was unable to assess the merits of the Commissioner's decision or submissions or to balance the relevant factors in favour and against disclosure. This also tends to suggest that the remittal decision was not made under s 63, at the final stage, when the Tribunal was "determining" the application. This gives DYD the option of withdrawing the application if he is satisfied with the new decision or proceeding with the application for review if he is not satisfied with it. 2. Order 3 should be set aside because we have upheld grounds 3, 4 and 5 of the appeal. We direct the Tribunal to reconsider that part of the case in light of the Appeal Panel's findings. The grounds of appeal do not justify a re-hearing by the Appeal Panel because what is required is a reconsideration of the public interest considerations for and against disclosure. Having heard the evidence and submissions at first instance, the Tribunal Member is best placed to undertake that reconsideration, if he is available. Orders 1. Leave to appeal on a question other than a question of law is refused. 2. The Tribunal's orders 1 and 2 made on 1 May 2020 are affirmed. 3. The Tribunal's order 3 made on 1 May 2020 is set aside. The Tribunal is directed to reconsider that order, without further evidence, in accordance with the findings in these reasons and any further submissions the Tribunal may allow. ********** 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: 30 October 2020