Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Morgan v Commissioner of Police [2021] NSWCATAD 173 Hearing dates: 26 February 2021 Date of orders: 21 June 2021 Decision date: 21 June 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: 1. The decision made by the Respondent on 30 July 2020 is set aside. 2. In substitution thereof the Respondent is to release a copy of the body-worn video taken on 11 June 2020 to Mr Morgan and pixellate and/or dub, as appropriate, the identity of any third party who has not provided consent for the disclosure of their private information. Catchwords: GOVERNMENT INFORMATION - Government Information (Public Access) Act 2009 – disclosure of body-worn video Legislation Cited: Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Surveillance Devices Act 2007 (NSW) Cases Cited: Cheung v Commissioner of Police [2019] NSWCATAD 249 Coleman v Power (2004) 2020 CLR 1 Commissioner of Police v Bassi (2020) NSWSC 710 Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 Gilleland v Commissioner of Police, NSW Police Force [2018] NSWCATAD 68 Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210 Poidevin v Seman (2013) 85 NSWLR 758 Category: Principal judgment Parties: Steven Morgan (Applicant) Commissioner of Police (Respondent) Representation: Counsel: N Wootton (Applicant) Solicitors: Marrickville Legal Centre (Applicant) Crown Solicitor (Respondent) File Number(s): 2020/00304243 Publication restriction: None REASONS FOR DECISION 1. This is an application by Mr Steven Morgan, seeking administrative review of a decision of the Commissioner of Police, NSW Police Force (the Respondent), to grant him a copy of body-worn video footage (the footage) depicting his apprehension by officers of the NSW Police Force, pursuant to s72(2)(d) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). 2. Mr Morgan submits that the correct and preferable decision is to grant him access to the footage by providing a copy of it to him. 3. Mr Morgan complains that the Respondent on 30 July 2020 only allowed him view-only access to the footage. This decision is the relevant decision under review. It is not in dispute that it is a reviewable decision pursuant to s80(i) of the GIPA Act. Background 1. It is not in contest that Mr Morgan on 11 June 2020, at approximately noon at Marrickville, was stopped on two occasions by police officers of the Respondent. On the second occasion when Mr Morgan was stopped, he was arrested and taken to the Newtown Police Station. 2. The officers of the Respondent who stopped Mr Morgan had on both occasions activated their body-worn video cameras and recorded the interaction between themselves and Mr Morgan and his arrest. 3. On 23 June 2020, Mr Morgan sought access to the information held by the Respondent under the GIPA Act. It is relevant at this stage to set out the request: 'We seek information in relation to an incident that occurred on 11/06/2020 at approximately midday at Marrickville involving Mr Morgan and NSW Police. Mr Morgan was stopped two times by the police and the second time he was arrested and taken back to the Newtown Police Station. We seek the following information: 1. A copy of any police body cam video recordings of all police officers present at the scene at either times that police stopped Mr Morgan. 2. A copy of any CCTV evidence police obtained from any of the local businesses when he was arrested. 3. A copy of all diary entries made by each police officer present at the scene. 4. A copy of any documents created by the police in relation to the arrest. 5. Custody management records. 6. A copy of any statement signed by Mr Morgan or that police wanted him to sign.' 1. The Respondent on 21 July 2020, made a decision to: 1. release police note-book entries, the relevant COPS Event Report, Custody Management Record, statement of a witness dated 11 June 2020 and a signed photograph (in part); and 2. refuse access to copies of the CCTV footage and body-worn video footage, but to grant Mr Morgan access by way of attending to view the footage. 1. Following that decision, Mr Morgan's legal representative attended Newtown Police Station on 22 July 2020 and viewed the footage. 2. On 27 July 2020, Mr Morgan sought an internal review of the Respondent's decision to grant view-only access to the footage. 3. On 30 July 2020, the Respondent affirmed its original decision on the basis that there is an overriding public interest against disclosure of the information in the way requested by Mr Morgan, pursuant to s72(2)(d) of the GIPA Act. The Respondent again determined to grant Mr Morgan view-only access to the footage. 4. Mr Morgan on 31 August 2020, sought external review of the 30 July 2020 decision by the Information Commissioner. 5. On 1 October 2020, the Information Commissioner determined that she was not satisfied that the Respondent's decision to provide Mr Morgan view-only access to the information was justified, and recommended the Respondent make a new decision. 6. On 21 October 2020, Mr Morgan applied to this Tribunal for administrative review of the 30 July 2020 decision. 7. It is the Respondent's 30 July 2020 decision to grant view-only access to the footage which is under review. Relevant Legislation 1. Section 3 of the GIPA Act states that the object of the Act is to open government information to the public and: … (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 1. Section 5 of the GIPA Act provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 1. Section 9 of the GIPA Act confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. 2. Section 12 of the GIPA Act provides for public interest considerations in favour of disclosure. 3. Sections 13 and 14 of the GIPA Act, relevantly provide: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). Table … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a health privacy principle under the Health Records and Information Privacy Act 2002, … 6 Secrecy provisions (1) 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. … 1. Section 15 of the GIPA Act, provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information: 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. 1. Section 55 of the GIPA Act provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application" ) into account as provided by this section-- (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note : An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. 1. Section 72(1) of the GIPA Act, provides that access to information may be provided in a number of ways, including by providing an opportunity to inspect a record containing information (section 72(1)(a)); providing a copy of the information (section 72(1)(b)) and providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned) (section 72(1)(c)). Section 72(2) provides that access to information must be provided in the form requested by an application, except in certain prescribed circumstances, including where: '(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.' 1. Section 73 of the GIPA Act, provides that access to information provided under the GIPA Act is unconditional. In particular, s73(i) provides that: 'An agency is not entitled to impose any condition on the use or disclosure of information when the agency provides access to the information in response to an access application.' 1. Section 18 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act), provides: (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless-- (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 1. Section 80 of the GIPA Act sets out those decisions which are 'reviewable decisions' under Part 5. Relevantly, 'a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant)' is a reviewable decision pursuant to section 80(i). 2. A person aggrieved by a 'reviewable decision' under the GIPA Act may apply to the Tribunal for review of that decision (section 100 GIPA Act). The onus on the agency is to establish that its decision is justified (section 105(1) of the GIPA Act). 3. Section 63 of the Administrative Decisions Review Act 1997 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. Mr Morgan's Submissions 1. Mr Morgan's argument concerning the review application is two-fold. First, he contends there are significant and weighty public interest considerations in favour of disclosure by providing to him of a copy of the footage in the circumstances of this case. Mr Morgan is an Aboriginal Australian who was stopped by police for (allegedly) riding a bicycle on a footpath and failing to have the helmet he was wearing secured. Mr Morgan was, shortly thereafter, (allegedly) unlawfully arrested, handcuffed and forced to sit on the ground in the street, searched, placed in the back of a police van, and subsequently released without charge. At the time Mr Morgan was detained, the police believed warrants were outstanding for his arrest. Mr Morgan protested throughout the entire episode and on numerous occasions said to the officers stopping him that he had no outstanding warrants for his arrest. Mr Morgan asserts that the arrest was prima facie unlawful. Mr Morgan refers in his submissions to a long history of over-policing of Aboriginal people in Australia. Since the Royal Commission into Aboriginal deaths in custody in 1991, Mr Morgan says that the issue of over-policing has been repeatedly recognised. In regard to this application, he says that the disclosure of the footage could reasonably be expected to inform the public about the operation of the police and their policies and practices in dealing with Aboriginal people. 2. Second, the Respondent has failed to demonstrate that there is an overriding public interest against providing Mr Morgan with a copy of the footage. Contrary to the Respondent's argument, disclosure of the information, Mr Morgan submits, ought not: 1. reveal an individual's 'personal information', because it is either not 'personal information' as properly defined, or the information has already been publicly disclosed (s 14 of the GIPA Act – table clause 3(a)); 2. contravene an information protection principle (IPP) under the PPIP Act, because there is a sound basis to believe that person who is depicted in the footage would not object to disclosure (s 14 of the GIPA Act - table clause 3(c)); and 3. contravene a secrecy provision, because disclosure would not in fact contravene s40 of the Surveillance Devices Act 2007 (NSW) (SD Act) (s 14 of the GIPA Act - table clause 6(1)). 1. Mr Morgan says that even if any of the above arguments are not accepted, by pixelating the footage, any public interest ground against disclosure can be overcome. The Respondent's Submissions 1. The Respondent contends that the information concerning this review application consists of two clips of the footage, recorded by officers on two occasions on 11 June 2020. The recordings have been provided on a confidential basis to the Tribunal. 2. The first video was taken at approximately 1.10 p.m. on the said date and records a plainclothes police officer of the Respondent issuing Mr Morgan two infringement notices for riding a bicycle without a helmet and riding a bicycle on the footpath. 3. The second video was taken at about 1.24 p.m. on the same date and records the first police officer arresting Mr Morgan outside a 7-Eleven store in relation to two alleged outstanding arrest warrants. Mr Morgan was escorted to a police van where he was searched and detained in the police van. 4. The nature of the second apprehension of Mr Morgan and his arrest resulted from the fact that the officers of the Respondent had been acting on information that warrants had been issued in Mr Morgan's name. It transpires that that information was incorrect and the warrants were erroneously issued in Mr Morgan's name by another individual in an encounter with NSW Police. 5. The first and second video footage captures interactions between officers of the Respondent and Mr Morgan. The footage also records members of the public walking on the street past Mr Morgan and officers of the Respondent. Both video and audio have been captured on the footage. 6. The Respondent has refused to disclose a copy of the footage to Mr Morgan on the three grounds which are set out in paragraph [29] above. Evidence 1. Mr Morgan's evidence consisted of: 2. Application filed 23 January 2021 - A1; 3. Bundle filed 10 February 2021 - A2. 4. The Respondent's evidence consisted of USB drive - R1. 5. The Tribunal notes the submissions filed by Mr Morgan and the Respondent. Consideration 1. When applying the public interest test in s13 of the GIPA Act, the Tribunal undertakes a two-step approach to the question of whether information has been properly refused if a conclusive presumption is not relied upon. 2. The agency in refusing to disclose information must rely on one or more of the s14 table considerations. The Tribunal is then tasked to weigh the Respondent's case against the factors favouring disclosure, being mindful of the injunctions that appear in both ss12 and 15 of the GIPA Act. (See Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 ("Camilleri") [24]-[26].) 3. The s14 inquiry is directed to the administrative structure and context, and its conditions, to which the document or information belongs. 4. In considering the public interest considerations, favouring disclosure is recognised by s12(1), the Respondent acknowledges that the following public interest considerations favour disclosure of the footage to the Applicant in its internal review decision: 1. that disclosure could reasonably be expected to enhance agency accountability; and 2. that the footage includes the Applicant's personal information. 1. The Respondent also accepts that disclosure of the footage could reasonably be expected to inform the public about its operation in the manner contended by Mr Morgan and that this is a public interest favouring disclosure. In that regard, Mr Morgan in his application for review by the Information Commissioner submitted that the disclosure could reasonably be expected to inform the public about the operations of agencies and, in particular, the policies and practices of the Respondent dealing with indigenous Australian members of the public. Further, that disclosure of the information could reasonably be expected to reveal or substantiate that the Respondent (or a member of it) has engaged in misconduct or negligent, improper or unlawful conduct. 2. In respect of the latter, the Respondent does not concede that the footage could reasonably be expected to reveal or substantiate any misconduct, or negligent, improper or unlawful conduct on the part of the Respondent or its officers. However, it is accepted that Mr Morgan may have a legitimate interest in reviewing the footage in order to assess whether he might have any available cause of action. 3. The Respondent maintains that by providing alternate access, view-only access to the body-worn video, that the public interest favouring disclosure has been substantially met. 4. Neither Mr Morgan nor the Respondent, submitted that there are any conclusive presumptions relied upon pursuant to s. 14(1) of the GIPA Act. I make a positive finding in this regard. 5. I now turn to the relevant matters found in the table to s. 14 of the GIPA Act. Clause 3(a) and 3(b) - reveal personal information and contravenes IPP under the PPIP Act 1. In considering the matter I have reviewed each of the footage which is the subject of these proceedings. The footage depicts a number of third parties where if disclosure is made, would reveal the personal information of these individuals. I reject the submissions of Mr Morgan that the footage captures 'blurry, at a distance and fleeting' depictions of them. I find that the first and second videos depicting various individuals if disclosed, could allow others to reasonably ascertain the identity of those persons. 2. I have taken into consideration that two of the persons who appear in the footage include a conversation between police and Person A. The second, Person B, is also depicted and identified. Both, Persons A and B have provided consent for the release of their identity. 3. The Tribunal has in previous matters concluded that footage that would reveal personal information where the footage depicts features of a person would enable that person(s) to be identified. Those features include facial features (see Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59; 7 Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210). The Tribunal in Camilleri at [40] and Gilleland v Commissioner of Police, NSW Police Force [2018] NSWCATAD 68 at [64] has accepted that voices of persons contained in audio recordings held by the NSW Police Force also amounts to personal information of those persons. I accept this reasoning and apply it to this matter. 4. Mr Morgan contends that even if the Tribunal were to find that the footage depicts personal information, it has already been placed in the public domain. In that regard, Mr Morgan relies upon a recording of his detainment and arrest captured on a mobile telephone which was released via Facebook. I accept that some of the personal information of which the footage has captured may indeed have been placed in the public domain. However, the angle and position of the person taking a video with a mobile phone is different to that of the officer capturing the body-worn video. In that regard, I am unable to be satisfied on the balance of probabilities that the entire footage has been released into the public domain. In my view, it would be dangerous to make a positive finding in this regard based upon the argument advanced by Mr Morgan without expert evidence confirming his assertion. 5. I am satisfied that the Respondent has justified that clause 3(a) is a relevant public interest against disclosure of the footage. 3(b) - contravene an information protection principle under the PPIP Act 1. The relevant provisions of s18 of the PPIP Act are set out above in paragraph [24]. The release of the footage of the arrest of Mr Morgan is in my view entirely reasonable where it is directly related to the purpose of providing evidence of his arrest. The arrest and interactions between Mr Morgan and the police occurred in public. I reject the Respondent's contention that disclosure of the personal information contained within the footage in response to the access application under the GIPA Act would not be a disclosure directly related to the purpose for which the information was collected. 2. I find that it is reasonable to believe that the third party individuals concerned are likely to have been aware that the footage of a person's arrest in public would later be provided to that person in possible criminal proceedings, or, potentially if an arrest was unlawful and a claim was later made in that regard. It is reasonable in my view to believe that those third persons would have held a reasonable belief that Mr Morgan when reviewing the footage could disclose incidental appearances by those third parties in the footage. However, I accept the Respondent's submissions that those individuals, apart from having an expectation that the footage may be released for the purposes of legal proceedings or some other law enforcement purpose, would not have had the expectation that the footage would be released under a GIPA Act application and possibly used as described by Mr Morgan to highlight the over-policing of Aboriginal people within the Marrickville area. 3. I, therefore, find that the disclosure of the personal information falls within the terms of s18(2)(a) of the PPIP Act. The disclosure is not directly related to the purpose for which the information was collected, namely, the arrest of Mr Morgan. 4. I find that the Respondent has justified that clause 3(b) is a relevant public interest against disclosure of the footage. 6(i) - contravene any other Act or statutory rule 1. The Respondent contends that clause 6(i) of the table to s14 of the GIPA Act is apposite. It relies upon s40 of the Surveillance Devices Act 2007 (SD Act) prohibiting the use, communication of, publication of 'protected information'. 2. 'Protected information' is defined in s3(d) of the SD Act to mean: 'Any information obtained from the use, in accordance with s50A, of body-worn video by a police officer.' 1. S50A(1) sets out the use of body-worn video as being used in accordance with s50A if: '(a) the police officers are acting in the execution of his or her duty, and (b) the use of the 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.' 1. The Respondent submits that the body-worn video is 'protected information' for the purposes of the SD Act. To the extent, as it relates to at least the second body-worn video, Mr Morgan contends that the police officers were not 'acting in the execution of their duty' as execution of his or her duty means 'lawful execution of his or her duty' (see Coleman v Power (2004) 2020 CLR 1 at 117; Poidevin v Seman (2013) 85 NSWLR 758 at [17]). Mr Morgan says there is prima facie evidence before the Tribunal to suggest that his arrest was unlawful and therefore it cannot be satisfied that the information is protected. 2. Where the information has been placed in the 'public domain' the disclosure is not prohibited under the SD Act as it falls within an exception (see s40(3)(a)(ii) of the SD Act). Mr Morgan says that as the second video footage was released via Facebook and WhatsApp and the Tribunal could not be satisfied that cl 6 of the Table to s14 of the GIPA Act would be made out. 3. The Respondent also refers to s40(4A)(c) applying only to police body-worn video in the Surveillance Devices Regulation 2014 (the SD Reg) which provides for a number of circumstances where body-worn video can be used. The uses include in coronial proceedings, an administrative decision made under an Act administered by the Minister of Police, proceedings in a court or tribunal in which NSW Police Force or the State is a party or in which a member of the NSW Police Force is called as a witness, the investigation of a complaint against or the conduct of a member of the NSW Police Force or the investigation of an alleged workplace injury concerning such a member. I note that the use in relation to disclosure under the GIPA Act is not specifically referred to in the Regulation. 4. I am not persuaded by Mr Morgan's arguments that the body-worn video is not 'protected information' pursuant to s40 of the SD Act. The Tribunal has no jurisdiction, and lacks all of the necessary evidence, to make a determination about the lawfulness, or not, of Mr Morgan's arrest. This of course may be a matter to be determined in a different jurisdiction. I am not satisfied that Mr Morgan's argument concerning the police officers were not 'acting in the execution of their duty' can succeed. I am also not satisfied that the information sought has entered the public domain such that it would fall within an exclusion in s40(3) for similar reasons as set out above in paragraphs [52]-[53]. 5. I am therefore satisfied that the disclosure of the body-worn video is prohibited under s40 of the SD Act. It follows that there is a public interest against disclosure of the footage under clause 6 of the table to s14 of the GIPA Act. Balancing the public interest test 1. The question for the Tribunal is to determine whether the Respondent's decision as a whole to refuse to provide access to the information as requested by Mr Morgan is justified. I have found that the Respondent has justified three of the public interest considerations against disclosure. The Tribunal must now decide whether access to the information as sought by Mr Morgan is justified when weighed against the presumption in favour of disclosure pursuant to s12 of the GIPA Act and the public interest considerations against disclosure. 2. Mr Morgan in written submissions drafted by his Counsel, sets out the sad history concerning the treatment of Aboriginal people by police, which has been the subject of many public inquiries and most recently recognised by the Supreme Court of New South Wales in Commissioner of Police v Bassi (2020) NSWSC 710. In that matter Fagan J said concerning 'Black Lives Matter' protests at [18]-[19]: 'The Court recognises that a strong public interest attaches to any expression of public opinion in this matter. In this case, the particular cause that the organiser wishes to advance is awareness of what he and others of like mind perceive as unequal treatment of indigenous people in this country by police and concern with respect to deaths of indigenous people that have occurred whilst in custody, and concern with the known high rates of incarceration of indigenous people relative to other members of the community. There is no doubt that that cause is one that is widely supported in the community and with great strength of feeling.' 1. It is noted that Fagan J's decision was reserved by the New South Wales Court of Appeal. However, the Court of Appeal did not cast doubt on the correctness of the observation set out above. Mr Morgan submits that disclosure of the information could reasonably be expected to contribute to informed debate on the issue of significant public importance concerning the unequal treatment of indigenous Australians. I accept this submission. 2. Mr Morgan also submits that the disclosure of the information can be reasonably expected to inform members of the public about the operations of the Respondent. In that regard, Mr Morgan submits that he was stopped for a minor traffic infringement relating to riding a bike on the footpath. He submits that this is yet another matter evidencing the over-policing of Aboriginal people in Australia and their incarceration. Mr Morgan submits that it is in the public interest for the public to be informed about practical examples of such practices. He asserts the disclosure of the information may contribute to public awareness of these issues and Mr Morgan submits there is a strong public interest in favour of disclosure. 3. There is no doubt that the information contains personal information relating to Mr Morgan. This is a persuasive factor in favour of disclosure. As set out above, I have also found that the information, if disclosed, would identify the personal information of third parties. However, as identified by the Information Privacy Commissioner, the Respondent could pixellate and indeed dub the necessary part of the information which would lead to such disclosure. 4. I have considered Mr Morgan's argument that disclosure of the information could reasonably be expected to reveal or substantiate whether an officer of the Respondent has engaged in …negligent, improper or unlawful conduct concerning his arrest. However, it is not for this Tribunal to make a finding in this regard and the technical issue as to the lawfulness of the arrest is a matter for another jurisdiction. What is relevant, is, that the disclosure of the information may reveal such matters and in my view weighs in favour of disclosure. 5. The Respondent's submissions seek the Tribunal to place particular weight against disclosing the information in the form as sought by Mr Morgan in circumstances where third parties' personal information would be revealed. This, in my view, can be balanced by pixellating of the identity of a third party or dub a third party's voice. In my view, by doing so protects the identity of those third parties whilst promoting the general public interest in favour of disclosure of government information in furtherance of s12 of the GIPA Act. Therefore the public interest considerations against disclosure in terms of cl 3(a) and 3(b) to the table at s14 of the GIPA Act, on balance, do not outweigh the public interest considerations in favour of disclosure. 6. The Respondent submits that as the disclosure of the information is 'protected information' and disclosure would contravene s40(1) of the SD Act, significant weight should be attributed to a public interest consideration against disclosure. I have considered the analysis that was adopted in Cheung v Commissioner of Police [2019] NSWCATAD 249. In deciding the weight that should be given to clause 6 of the table to s14 of the GIPA Act as it applies as a consideration against disclosure, I note and place particular weight on the fact that Parliament has not seen fit to proscribe disclosure of body-worn video footage as a conclusive presumption to an overriding public interest against disclosure. The Tribunal must consider the appropriate weight to be accorded to a contravention of s40(1) of the SD Act in the constructs of clause 6 of the table to s14 of the GIPA Act. 7. I have considered the matters which were recognised in Cheung and the use of surveillance devices which includes body-worn video. I accept that the public interest considerations against disclosure should be given due weight considering the strict regime governing the use of and disclosure of protected information, which is designed to preserve the integrity of investigations and to protect the privacy of those involved, including bystanders who may be depicted in the body-worn video. The Tribunal in Cheung placed considerable weight on the privacy considerations in balancing the public interest, notwithstanding the fact that the footage in the matter only depicted the access applicant. 8. The purpose of the GIPA Act is to ensure that the public interest in disclosing information held by government agencies is maintained subject to any overriding public interest matter against disclosure. 9. In balancing the matters raised by the parties concerning Mr Morgan's request for a copy of the footage, I find that the balance weighs in favour of disclosure of the information to him, providing the privacy of personal information of third parties can be appropriately anonymised. As evident in the various Royal Commissions, Commissions of Inquiry and remarks by eminent members of the judiciary, I find there is significant public interest in the policing and incarceration of indigenous Australians. There is significant public interest in the public being informed about practical examples of being detained by police, arrest and such practices. By disclosing the information as sought by Mr Morgan and pixellating and dubbing the personal information of third party bystanders, the balance lies in the public interest considerations in favour of disclosure. I also find that by pixellation and dubbing the personal information of third party bystanders the integrity of police operations, such as the use and implementation of body-worn video is maintained. There is no evidence that the disclosure of the information sought by Mr Morgan would compromise the integrity of police operations in the manner I propose. 10. I find that Mr Morgan's personal factors weigh in favour of disclosure (s55 of the GIPA Act). He is a proud Aboriginal man who seeks to inform the public about matters concerning his arrest and the broader issue of the policing of indigenous Australians. His motives in my view add significant weight for granting the access application. As conceded by the Respondent, disclosure of the information sought by Mr Morgan will inform the public about the operation of the police and their policies and practices in dealing with indigenous Australians. 11. I am not satisfied that Mr Morgan's personal factors weigh in favour against disclosure, as the protection of the identity of third parties can be protected in the manner set out above. 12. In accordance with s72(2) of the GIP Act, I find that the Respondent is to provide access to the information in the form requested by Mr Morgan providing the footage is appropriately pixellated and dubbed as set out above. There is no evidence before the Tribunal that would enable an exception to apply under s 72(2)(a)-(c) of the GIPA Act. I reiterate my findings concerning an overriding public interest against disclosure as it may relate to s72(2)(d) of the GIPA Act. 13. I am not satisfied that the decision of the Respondent to provide view-only access to the footage is the correct and preferable decision. I find that the public interest considerations against disclosure, on balance, do not outweigh the public interest considerations in favour of disclosure. 14. At the conclusion of the hearing Ms Mattes submitted that if the Tribunal was inclined to consider making an order for the pixellation of the footage, the Respondent would like to put on further evidence. That application was opposed by counsel for Mr Morgan. I decided that the Respondent was on notice of the potential of such an order. Mr Morgan had raised the issue in his written submissions and the Information Commissioner has also made reference to pixellation. In furthering the guiding principle under the NCAT Act (s 36), I refused the Respondent's application. 15. Accordingly, the decision under review is set aside. In substitution, thereof the Respondent is to release a copy of the body-worn video taken on 11 June 2020 to Mr Morgan and pixellate and/or dub, as appropriate, the identity of any third party who has not provided consent for the disclosure of their private information. 16. Should the parties not be able to agree as to the form of the disclosure of Mr Morgan's request they are at liberty to relist the matter before me for further order. ORDER 1. The decision made by the Respondent on 30 July 2020 is set aside. 2. In substitution thereof the Respondent is to release a copy of the body-worn video taken on 11 June 2020 to Mr Morgan and pixellate and/or dub, as appropriate, the identity of any third party who has not provided consent for the disclosure of their private information. ********** 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: 21 June 2021