Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Snape v Commissioner of Police [2022] NSWCATAP 63 Hearing dates: 19 November 2021 Date of orders: 10 March 2022 Decision date: 10 March 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President. P H Molony, Senior Member. Decision: (1) Pursuant to s 64 of the Civil and Administrative Tribunal 2013 and in accordance with s 107 of the Government Information (Public Access) Act 2009 the information contained in paragraph 49 of these reasons may only be disclosed to the Respondent and is not for publication. (2) This appeal insofar as it is based on the questions of law raised by the Appellant is dismissed. (3) Otherwise, with respect to the question of leave to appeal and issues of law raised by the Appeal Panel, the future conduct of the appeal (whether to decide it on the papers) will be determined after 26 March 2022. (4) The Appeal Panel seeks further submissions from the parties with respect to the matters raised in paragraphs [43] to [56] above only, such submissions to be filed and served: (a) by Mr Snape by 21 March 2022; and (b) by the Commissioner by 4 April 2022. (5) Those submissions are to address whether or not the Tribunal should deal with the issues raised without a further hearing. Catchwords: APPEAL - Freedom of Information – Government Information (Public Access Act) 2009 – effect of disclosure of information under Government Information (Public Access Act) 2009 – for information to be revealed it must be publicly disclosed – no error in Tribunal considering factual material at time of hearing – effect of s 63 of Administrative Decisions Act 1997. Legislation Cited: Administrative Decisions Review Act 1987 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2010 Privacy and Personal Protection Act 1998 Cases Cited: Amos v Western NSW Local Health District [2017] NSWCATAD 17 Bauskis v Liew [2013] NSWCA 297 BHP Billiton Ltd v Dunning [2013] NSWCA 421 Black v Hunter New England Local Health District [2011] NSWADT 295 Brazel v Sydney Water Corporation [2021] NSWCATAP 13 Bristol Custodians Limited v Chief Commissioner of State Revenue [2012] NSWADTAP 44 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 Craig v South Australia (1995) 184 CLR 163 Danis v Commissioner of Police [2021] NSWCATAP 2 Destination NSW v Taylor [2017] NSWCATAD 272 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Destination NSW v Taylor [2019] NSWCATAP 123 Hamod v State of New South Wales [2011] NSWCA 367 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 SAB v SEM [2013] NSWSC 253 Texts Cited: None cited Category: Principal judgment Parties: Ronald Snape (Appellant) Commissioner of Police (Respondent) Representation: Appellant (Self Represented) Crown Solicitor (Respondent) File Number(s): 2021/00231436 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal 2013 and in accordance with s 107 of the Government Information (Public Access) Act 2009 the information contained in paragraph 49 of these reasons may only be disclosed to the Respondent and is not for publication. Decision under appeal Court or tribunal: Civil and Administrative Tribunal. Jurisdiction: Administrative and Equal Opportunity Division. Citation: [2021] NSWCATAD 206 Date of Decision: 16 July 2021 Before: C Mulvey, Senior Member File Number(s): 2021/00059569 REASONS for decision Background to the Appeal. 1. Ronald Snape has appealed a decision made by the Tribunal with respect to an application he made for administrative review of a decision made by the Commissioner of Police, NSW Police Force (the Commissioner) under the Government Information (Public Access) Act 2010 (the GIPA Act) to refuse him access to the name of a person living at a particular address and who he alleged had been threatening and harassing him (the access application). That person is said to be the son of one of Mr Snape's neighbours and to be known to Police. Mr Snape's stated purpose for making this request was that he wished to apply for an "AVO", as Police had declined to make such an application on his behalf. 2. On 11 February 2021, a review officer found that the information Mr Snape sought was contained in Event Report E77276740, but refused to provide Mr Snape with access to the information. The review officer found that the public interest in protecting the personal information of the individual concerned outweighed Mr Snape's interest in gaining the information. 3. On 2 March 2021 Mr Snape made an application to the Tribunal for administrative review of that decision under the GIPA Act. 4. On 23 March 2021, a different review officer wrote to Mr Snape advising that further information responsive to the access application had been found in the Computerised Operational Policing System (in document IASUWT12:OAD) which indicated the name of a male person who lived at the address nominated by Mr Snape. 5. The review officer considered that new information responsive to Mr Snape's access application and made a further determination with respect to it. The review officer determined that personal information of the person concerned should not be disclosed to Mr Snape, on the basis that the public interests in not disclosing personal information and in not disclosing personal information that would contravene an information protection principle under the Privacy and Personal Protection Act 1998 (the PPIP Act), outweighed the public interest in disclosing the information to Mr Snape. 6. As a consequence, Mr Snape was refused access to the personal information concerned in the two separate decisions made by the Commissioner with respect to the access application. 7. Separately, Mr Snape had made another application for access to information in a police phone tap and in a police security report concerning particular incidents occurring on or about 24 December 2020 (the other access application). The Commissioner determined this application on 11 February 2021. Information was provided with the name of a particular person, responsive to Mr Snape's request, was redacted except in one instance, where the Commissioner says a name was "inadvertently disclosed" to Mr Snape. 8. The Tribunal considered both decisions made with respect to the access application when it conducted an administrative review of them at a hearing by telephone conducted on 18 June 2021. Mr Snape represented himself at that hearing. Mr John McDonnell represented the Commissioner. During the hearing: 1. Mr Snape says he had a poor telephone connection and had difficulty understanding what was going on; and 2. the Commissioner provided evidence that Mr Snape had been provided with access to the name of the individual concerned under a different access application he had made. Mr Snape acknowledged this in his submissions. That different decision was also made on 11 February 2021. 1. At the conclusion of the hearing the Tribunal reserved its decision. A decision in writing was delivered on 16 July 2021. The Tribunal made the following orders: 1. The decisions made by the respondent on 11 February 2021 and 23 March 2021 are affirmed. 2. The application is otherwise dismissed. 1. The substance of the Tribunal's decision was set out at paragraphs [40] to [47] of the decision which said: My consideration 40. As pointed out in oral submissions by Mr McDonnell, the information sought by Mr Snape has already been inadvertently disclosed to him by the Respondent. The COPS case report reveals the name of Mr Snape's neighbour. 41. After reviewing the evidence, and in particular the confidential bundle, I find the various parts of the information not disclosed have been appropriately redacted by the Respondent under cl 3(a) and (b) of the table to s 14 of the GIPA Act, or, that the information does not relate to the request (s 74 of the GIPA Act). 42. I am satisfied that the Respondent has justified that cl 3(a) and (b) are relevant public interest grounds against disclosure of the information that has been redacted as it would reveal the personal information of persons if it was released. I am also satisfied that the release of the information would lead to a breach of an information protection principle under the Privacy and Personal Information Protection Act. Balancing the public interest test 43. The question for the Tribunal is to determine whether the Respondent's decision as a whole to refuse to provide access to the information as requested by Mr Snape is justified. I have found that the Respondent has justified two of the public interest considerations against disclosure. The Tribunal must now decide whether access to the information as sought by Mr Snape is justified when weighed against the presumption in favour of disclosure pursuant to s 12 of the GIPA Act and the public interest considerations against disclosure. 44. I find that the public interest considerations against disclosure, on balance, do outweigh the public interest considerations in favour of disclosure. 45. I find that Mr Snape's personal factors weigh in favour of disclosure (s 55 of the GIPA Act). His motives for release of the name of the neighbour for which he seeks to bring an AVO in my view add weight for granting the access application. However, as conceded by the Respondent, the name of that person has already been disclosed. In the circumstances, Mr Snape's motives for the application have been satisfied. 46. Overall, I am not satisfied that Mr Snape's personal factors weigh in favour of disclosure of the remainder of the information, as the protection of the identity of third parties, whose personal information has been redacted, will not be able to be maintained if disclosed. Further, the decision to redact information pursuant to s 74 of the GIPA Act ought not be disturbed. 47. Accordingly, the decisions under review are affirmed. 1. On 13 August 2021 Mr Snape filed a Notice of Internal Appeal with respect to that decision. 2. That appeal came before us for hearing on 19 November 2021. Prior to the hearing the Tribunal was provided with copies of correspondence received from Mr Snape by the Crown Solicitor in which he indicated that he was ill and would not be appearing at the hearing. 3. At the commencement of the hearing Mr Snape was present by phone. He indicated that he did not intend to participate in the appeal hearing due to ill-health but wanted the issues dealt with. He said he was unwell. He did not seek an adjournment and indicated that he wanted to ensure that the appeal was not dismissed for non-appearance. He then left the hearing, which proceeded. Material considered on Appeal. 1. In considering this appeal we had regard to the following materials provided by the parties, together with their oral submissions. 1. Notice of Internal Appeal with attachments filed 13 August 2021. 2. Reply to Appeal received 7 September 2021 with attachments. 3. Mr Snape's written submissions with attachments received 11 October 2021 4. Copy original Application for Administrative Review received 2 March 2021. 5. Commissioner's Submissions on Appeal. 6. Commissioner's Appeal Bundle. Applicable legal principles. 1. Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds." 1. Where leave to appeal is sought the applicable general principles were summarised in Collins v Urban [2014] NSWCATAP 17 at [84]: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel said that the following are specifically included: 1. whether the Tribunal provided adequate reasons, which explain the Tribunal's findings of fact and how the Tribunal's ultimate conclusion is based on those findings of fact and relevant legal principle; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. 1. The Appeal Panel stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12]. 2. The categories of errors of law that give rise to an appeal as of right, discussed in Prendergast are not all inclusive. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: 13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 1. When determining an internal appeal an Appeal Panel may follow any of the courses set out in s 81 of the NCAT Act: (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, including (but not limited to) orders that provide for any one or more of the following— (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance. Grounds of appeal. 1. We have identified the following grounds of appeal relied on by Mr Snape. 1. That the hearing conducted by phone was procedurally unfair because Mr Snape, due to the poor quality of the phoneline, was unable to fully hear submissions made by the Commissioner. Mr Snape complained about this during the hearing. He acknowledges that the line improved as the hearing progressed, but not to a point that he considered satisfactory. 2. That the Tribunal erred in taking into account evidence of events after his administrative review application was made to the Tribunal, namely the disclosure of the name concerned in response to a subsequent access application made by Mr Snape. Mr Snape also characterised this error as the Tribunal wrongly amalgamating and deciding two access applications, only one of which was before it. 3. That the Tribunal erred in considering confidential evidence and submissions from the Commissioner. 4. The Tribunal wrongly concluded that, on balance, the public interest in nondisclosure of the information outweighed the public interests in the disclosure of the information to Mr Snape, taking into account Mr Snape's personal factors for making the application. This is not a question of law but one that goes to the merits of the decision. It requires leave to appeal. The phone line issue. 1. Mr Snape says that he had difficulty hearing the Commissioner's submissions during the hearing which at times sounded like they were "coming down a tunnel". He says these difficulties denied him procedural fairness. In submissions he notes that he has had difficulty obtaining a copy of the recording of the hearing from the Tribunal and says that this is also unfair. 2. In response the Commissioner says that it is apparent from the reasons for decision that the Senior Member discussed issues relied on by the Commissioner with Mr Snape in the course of the hearing, and thereby ensured that he had the opportunity to be heard with respect to those matters. 3. We agree that Mr Snape was alerted in the course of the hearing to the matters raised against him. It is unfortunate that there were difficulties with the quality of phone lines that affected the hearing. We are not persuaded that those deficits were such that Mr Snape did not receive procedural fairness. It is agreed that the parties persisted with the hearing, despite difficulties with the connections, and that the connection slowly improved. It was not a situation in which any party actively considered abandoning the hearing. We are not satisfied that Mr Snape was denied procedural fairness in this regard. Taking into consideration events that occurred after Mr Snape made his access application. 1. Mr Snape asserts that the Tribunal erred at law when it took into account and relied on the fact that the name he sought access to had been disclosed to him in response to the other access application. He points out that he did not seek administrative review of that decision, or of the second decision made with respect to the access application on 23 March 2021. He therefore says that the Tribunal wrongly considered access applications that were not properly before it when considering his administrative review application. 2. Turning first to the decision made on the other access application on 11 February 2021, in which the name of an individual was disclosed, Mr Snape says that decision, and the fact that a name was disclosed to him, should not have been considered by the Tribunal when administratively reviewing a different access application. We do not agree. 3. Section 63(1) of the Administrative Decisions Review Act 1987 (the ADR Act) provides: (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. 1. It is well established that in considering an application for administrative review the Tribunal is not restricted to having regard only to the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Unless the enabling legislation says otherwise, in undertaking an administrative review, the Tribunal looks at the matter afresh in the light of the material before it and the relevant law at the time of the review. 2. The Tribunal when conducting the administrative review of the access application was free to take into account relevant factual matters that had occurred up to the time of its consideration. This included the fact that some of the information Mr Snape was seeking had been released to him in response to the other access application and was therefore know to him, specifically the name which had been inadvertently disclosed. 3. With respect to the second internal review decision made on 23 March 2021, when additional information responsive to Mr Snape's request had been found, s 58(3) of the GIPA Act provides: If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 1. The decision made by the Commissioner on 23 March 2021 supplemented the decision of 11 February 2021. 2. The Tribunal therefore correctly considered both decisions when determining Mr Snape's administrative review application. In doing so, the Tribunal correctly considered factual material that had arisen up to the time of its consideration. Effect of disclosure of the information 1. The Tribunal accepted a submission from the Commissioner that disclosure of the information Mr Snape sought, in the response to the other application, resulted in Mr Snape's administrative review application being without merit. The Tribunal found the submission persuasive. Nonetheless, the Tribunal went on to decide whether that there was an overriding public interest against disclosure of information to Mr Snape on different grounds. 2. As the Tribunal noted in its decision s 73(1) of the GIPA Act provides that: (1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. 1. In this case the agency disclosed information (a name) to Mr Snape when responding to a different access application. The Commissioner says this occurred inadvertently. There is no doubt however, that the name was disclosed in response to an access application. That disclosure was unconditional. Section 73 of the GIPA Act provides: 73 Access to be unconditional (1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. (2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information. (3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally. 1. That disclosure, however, did not result in the personal information (name) being revealed for the purposes of the public interest consideration against disclosure in clause 3(a) of the Table to s. 14, namely that disclosure could be could reasonably be expected to reveal an individual's personal information. The definition of reveal in Sch 4 of the GIPA Act is: reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). 1. There was no evidence before the Tribunal that the name which was inadvertently disclosed has been publicly disclosed or revealed: see the discussion of public disclosure in Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 and see Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 and Danis v Commissioner of Police [2021] NSWCATAP 2 for contrasting examples of when information (on video) was held to have been publicly disclosed. 2. In those circumstances Mr Snape was entitled to press for disclosure of the information responsive to the access application. While the Tribunal considered his application without merit because a name was disclosed in response to the other access application, this does not withstand the weight of analysis. The name had been revealed to him in the context of different information held by the Commissioner and a different access application. Prima facie he was entitled to access information responsive the access application in question. 3. Despite finding the application was without merit, the Tribunal nevertheless went on to consider the access application on the merits. As a consequence, the finding that Mr Snape's application was without merit was not decisive. Consideration of confidential materials by the Tribunal. 1. Section 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of— (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. 1. In this case the Tribunal had before it the confidential information in issue and submissions. These were not provided to Ms Snape in accordance with s 107(3), but the Tribunal did have regard to it. 2. In Black v Hunter New England Local Health District [2011] NSWADT 295 at [21] Deputy President Higgins explained the operation of s 107: As a general rule the Tribunal is required to accord procedural fairness in exercising its functions under the Administrative Decisions Tribunal Act 1997 (the ADT Act): see subsections 73(2) and 73(4) of the ADT Act and Commissioner of Police v Gray [2009] 74 NSWLR1. Procedural fairness includes receiving evidence and hearing argument in the presence of both parties and their respective representative: see subsection 75(1) of the ADT Act. Parliament, however, may validly legislate to exclude or modify the rules of procedural fairness: Gypsy Jokers Motorcycle Club Inc. v Commissioner (2008) 234 CLR 532 at 598. To exclude or modify the rules of procedural fairness, Parliament is required to do so by 'plain words of necessary intendment'. Paragraphs 75(2)(c) and (d) of the ADT Act contain an express modification of this nature. It is not disputed that section 107 of the GIPA Act also has the effect of modifying the general rule and that it applies notwithstanding the discretion contained in subsection 75(2) of the ADT Act: see also section 40 of the ADT Act. The question is to what extent does section 107(3) of the GIPA Act modify the general rule that evidence is to be received and heard in the presence of the public, Mr Black and his/her representative. As noted in the written submissions of the parties, subsections 107(1) and (2) are in similar terms to section 55 of the repealed FOI Act. While section 55 made reference to 'exempt matter', section 107 makes reference to 'information for which there is an overriding public interest against disclosure.' Subsection 107(3) is in terms similar to those in subsection 57(2) of the repealed FOI Act. However, they do differ in some respect. Subsection 57(2) only applied to a 'restricted document'. A 'restricted document' was defined in section 6 of the repealed FOI Act to mean a document referred to in any one or more of the provisions of Part 1 of Schedule 1. Schedule 1 concerned exempt documents and Part 1 related to a 'restricted document', which are defined in the repealed Act to be cabinet documents (clause 1), Executive Council documents (clause 2) and documents affecting law enforcement and public safety (clause 4). The Tribunal regularly applied section 55 of the repealed FOI Act when hearing and determining applications for review of decisions of an agency under that Act so as not to disclose the content of a document, or information in a document that an agency had determined to be exempt under that Act. The Appeal Panel, in a decision of an earlier appeal by Mr Black (see Black v Commissioner of Police, NSW Police Force [2008] NSWADT AP 80, at [17]) gave the following explanation of the procedures of the Tribunal in regard to its obligations under section 55 of the repealed FOI Act: '...[Ordinarily] courts and tribunal proceed in open. In a dispute over whether a document is to be withheld, it will sometimes occur that the agency will wish to proceed in a closed session. It may wish to refer expressly to the contents of the document, or explain surrounding circumstances that justify its non-release.' To my knowledge, the Tribunal seldom, if ever, received or heard evidence in confidence under subsection 57(2) of the repealed FOI Act. Nevertheless, for the purpose of construing section 107 of the GIPA Act, the starting point must be the terms of the section and its context within the GIPA Act as a whole. It is the contention of HNEAHS that: '.. [each] subsection of s.107 applies, in reverse chronological order, to a different stage in the Tribunal's process of hearing and determining a proceeding. Section 107(1) applies to the Tribunal's reasons for decision; s. 107(2) assists in regulating the impromptu disclosure of information during a hearing; and s. 107(3) deals with evidence that is anticipated, either orally or in writing.' While this might be a convenient way to distinguish the operation of the three subsections in section 107, it is arguable that they are not necessarily mutually exclusive as suggested by HNEAHS. What is clear from the terms of the subsections, is that they concern the procedure for dealing with 'information' for which (a) there is an overriding public interest against disclosure, or (b) there could be, or is claimed to be an overriding public interest against disclosure. That is, the 'information' the subject of the decision for which the applicant has sought external review by the Tribunal. This is inferred from the terms of the section, the objects of the Act (see paragraph 3(1)(c)) and the context in which the section appears within the GIPA Act. As I have indicated, section 107 is contained within Division 4 of Part 5 of that Act, which specifically deals with applications to the Tribunal for external review of decisions of an agency under the provisions of Division 4 of Part 4 of the Act. This includes external review of a decision of an agency to refuse access to an access applicant on the grounds that there is 'an overriding public interest against disclosure of the information' for which access was sought. Without a procedure along the lines of section 107, the general rule of an open hearing and the open receipt of evidence would apply, which would be contrary to the objects of the GIPA Act and also render the determination of the respondent nugatory. This clearly was not the intention of Parliament. At the same time, it can be inferred that Parliament did not intend the procedure in section 107 to have a broader application other than to the 'information' that is the subject of the review application and any other information, the disclosure of which would disclose the information the subject of review. This may include information of the surrounding circumstances of the information in dispute. See also Brazel v Sydney Water Corporation [2021] NSWCATAP 13; Amos v Western NSW Local Health District [2017] NSWCATAD 17 at [17]; and, Bristol Custodians Limited v Chief Commissioner of State Revenue [2012] NSWADTAP 44. 1. In considering the confidential information under s 107(3) of the GIPA Act the Tribunal was obeying the legislative instruction given to it by the section. While Mr Snape understandably sees this as unfair, it is a procedure that the Tribunal is required to implement by the GIPA Act and one which is lawful. The Tribunal considering the confidential information in issue without it being disclosed to Mr Snape does not constitute an error of law. It is a procedure required by the legislation. 2. It is to be noted that the Tribunal, in providing its written reason for decision, did not include any confidential reasons. Conclusion on questions of law raised by Mr Snape. 1. In the light of the above Mr Snape's appeal cannot succeed on the questions of law he sought to raise. That disposes of the first three grounds identified earlier. The fourth ground remains for consideration. Did the Tribunal err in holding that the public interest in favour of non disclosure outweighed the public interest in favour of disclosure? 1. In the course of our consideration of the appeal we have come across two issues on which we have decided to seek further submissions from the parties to the appeal. 2. In order to explain why this is an issue we need to discuss information which is claimed to be the subject of an overriding public interest against disclosure, which discussion s 107(1) of the GIPA Act requires be kept confidential. While we understand that this will be a source of frustration to Mr Snape, the law requires it. 3. [NOT FOR PUBLICATION] 4. We think we can say, without breaching s 107, that our understanding is that the names revealed in COPS Event Report E77276740 and in document IASUWT12:OAD are not the same. 5. An issue then arises as to whether the Tribunal's conclusion that "the information sought by Mr Snape" had been supplied was made without supporting evidence. If so, were the Tribunal's conclusions quoted above based upon evidence before the Tribunal, or was the Tribunal conclusion based on a material error of fact? Only one name had been disclosed to Mr Snape. Whether the Tribunal failed to identify and consider in undertaking the balancing exercise under s 13 of the GIPA Act public interest considerations in favour of disclosure? 1. Section 13 of the GIPA Act sets out the public interest test which is used to determine whether there is an overriding public interest against disclosure of government information. It provides: 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. 1. Section 13 is to read in the light of the s 12 which establishes a general public interest in favour of disclosure and provides that public interests in favour of disclosure are not limited. It provides: (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note— The following are examples of public interest considerations in favour of disclosure of information— (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 1. It is clear therefore that a decision maker may identify public interest considerations in favour of disclosure: Destination NSW v Taylor [2019] NSWCATAP 123 at [9]. In contrast, the public interest considerations against disclosure are limited to those set out in the Table to s 14. When describing its role in this regard the Tribunal said that it undertook a two step approach (at [38]), which it explained at [39]: The agency in refusing to disclose information must rely on one or more of the s 14 table considerations. The Tribunal is then tasked to weigh the Respondent's case against the factors favouring disclosure, being mindful of the injunctions that appear in both ss 12 and 15 of the GIPA Act. (See Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [24]‑[26].) 1. The Tribunal followed that approach when making its determination. In doing so the Tribunal did not identify what public interest in favour of disclosure might apply, assign them any weight, or purport to balance them against the public interest considerations against disclosure. It did not find that there were no relevant public interests in favour of disclosure. It did conclude that the factors against disclosure outweighed those in favour of disclosure but did not identify what those factors were. Rather, it treated Mr Snape's personal factors as the only factors favouring disclosure. It made no specific mention of the general public interest in favour of the disclosure of government information in s 12(1) and does not appear to have borne that public interest in mind, or considered which might apply in favour of disclosure, when undertaking the balancing exercise. While passing reference is made to s 12 in the reasons at [16] and [38] there is no reference to the general public interest in favour of disclosure, which must be considered as part of the balancing exercise. In Destination NSW v Taylor [2017] NSWCATA 272 Senior Member Dinnen explained. At [17]: Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information. 1. Personal factors under s 55 of the GIPA Act may coincide with or highlight a public interest in favour of disclosure, but do not of themselves constitute a public interest: see JY v Commissioner of Police, NSW Police [2008] NSWADT 306 at [55]. 2. On appeal therefore a question arises as to whether the Tribunal undertook the balancing exercise as required by s 13, or whether it failed to take into account relevant considerations. On initial assessment, it would appear to the Appeal Panel that the Tribunal did not ask itself whether any public interests in favour of disclosure applied. On an initial assessment, it would seem that public interests in ensuring the administration of and access to justice might be applicable, as may others. The question of what weight might be assigned to public interest considerations in favour of disclosure and how they were to be balanced against the public interest considerations against disclosure did not arise in the Tribunal's consideration. 3. If there are personal factors s 55 provides when they may be taken into account in balancing the public interests both in favour of and against disclosure. It provides: (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. In the circumstances of Mr Snape's case it was open to the Tribunal to use personal factors relating to him as considerations both in favour of and against disclosure. The Tribunal discussed those personal factors at [27]: Mr Snape sets out an acrimonious history with the son of one of his neighbours commencing from about December 2020. I do not intend to set out in detail each of the allegations concerning Mr Snape and that person. However, relevantly for determining this application, Mr Snape makes various allegations of intimidation, trespass, harassment and abuse which, despite him complaining and making complaints to the police, he says is continuing. Mr Snape requested the police take out an AVO to protect him and his family, which the police declined to do. Mr Snape is therefore seeking the name of his neighbour's son so that he can commence his own private AVO to seek protection. 1. The Tribunal found that there were personal factors in favour of disclosure which it then proceeded to weigh against "the factors" against disclosure. As already noted, it did not identify any public interest in favour of disclosure. Call for further submissions. 1. Given Mr Snapes absence from the hearing, we have decided to seek submissions from the parties as to whether or not there is a question of law with respect to 1. whether there was evidence before the Tribunal upon which it could conclude that the information sought by Mr Snape in the access application has already been disclosed to him; and 2. the Tribunal's conduct of the balancing exercise required by s 13 of the GIPA Act. 1. Our initial thinking is that: 1. those issues can be dealt with without a hearing; and 2. If we find an error or law by the Tribunal, or grant leave to appeal on the merits, we should proceed to redetermine the matter ourselves, rather than remit it. 1. No further submission should be made with respect to the errors of law we have discussed above. Orders 1. The Appeal Panel makes the following orders: 1. Pursuant to s 64 of the Civil and Administrative Tribunal 2013 and in accordance with s 107 of the Government Information (Public Access) Act 2009 the information contained in paragraph 49 of these reasons may only be disclosed to the Respondent and is not for publication. 2. This appeal insofar as it is based on the questions of law raised by the Appellant is dismissed. 3. Otherwise, with respect to the question of leave to appeal and issues of law raised by the Appeal Panel, the future conduct of the appeal (whether to decide it on the papers) will be determined after 26 March 2022. 4. The Appeal Panel seeks further submissions from the parties with respect to the matters raised in paragraphs [43] to [56] above only, such submissions to be filed and served: 1. by Mr Snape by 21 March 2022; and 2. by the Commissioner by 4 April 2022. 1. Those submissions are to address whether or not the Tribunal should deal with the issues raised without a further hearing. ********** 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: 10 March 2022