Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Snape v Commissioner of Police No 2 [2022] NSWCATAP 244 Hearing dates: On the papers Date of orders: 25 July 2022 Decision date: 25 July 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President P H Molony, Senior Member Decision: (1) Appeal allowed. (2) The decision is set aside with the whole of the decision remitted to the Administrative and Equal Opportunity Division, differently constituted, to be reconsidered, with fresh evidence allowed. Catchwords: Appeal – Freedom of Information – failure by Tribunal to consider some confidential information to which access was sought – material error of fact – failure to consider whether there were any public interest considerations in favour of disclosure and the weight to be given to them – s 13 of the Government Information (Public Access) Act 2010 - failure to consider a relevant consideration. Legislation Cited: Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2010 Freedom of Information Act 1989 (Repealed) Cases Cited: APD v Commissioner of Police, NSW Police Force [2012] NSWADT 42 Betzis v Commissioner of Police [2020] NSWCATAD 71 EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94 EMC v The University of Sydney [2021] NSWCATAD 234 Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 House v The King [1936] HCA 40; (1936) 55 CLR 499 JY v Commissioner of Police, NSW Police [2008] NSWADT 306 Snape v Commissioner of Police [2022] NSWCATAP 63 Snape v Commissioner of Police [2021] NSWCATAD 206 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: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Not applicable Date of Decision: 16 July 2021 Before: C A Mulvey (Senior Member) File Number(s): 2021/00059569 REASONS FOR DECISION Background 1. On 10 March 2022 we published our decision in Snape v Commissioner of Police [2022] NSWCATAP 63. That decision related the Tribunal's review of a decision made by the Commissioner under the Government Information Public Access Act 2010 (NSW) (the GIPA Act) in July 2021 in Snape v Commissioner of Police [2021] NSWCATAD 206. In making that decision we found no question of law was raised by the matters relied on by the appellant – who was self-represented – but did seek further submissions from the parties with respect to issues of law we noted in our consideration of the appeal. 2. An understanding of our earlier decision [2022] NSWCATAP 63 is vital to an understanding of this decision. The two should be read together. 3. The orders we made in our earlier decision were: (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. 1. Since then, the Tribunal has not received any direct communication from the appellant. 2. On 4 April 2022, the Tribunal received submissions from the Commissioner, responsive to our request. This included an e-mail apparently from the appellant to Ms Mattes (representing the Commissioner) dated 27 March 2020 which, in short: 1. indicated that the appellant had received our decision; 2. said that he believed he was at risk of harm as a result of the proceedings; 3. said that he was withdrawing his appeal; and 4. asked for his request to be passed on to the Tribunal. 1. In submissions, the Commissioner indicated that it would consent to any measures the appeal panel might implement to address the appellant's concerns, such as anonymising his name. We think it too late to adopt such a measure, since our original decision naming him was published 4 months ago and is inexorably linked to this decision. 2. We were reluctant to treat the email as a request from the appellant to withdraw his application, without confirmation from the appellant himself. It was not signed by him and was not given to the Tribunal. After some consideration, on 23 May 2022, we asked the Registrar to write to the appellant thus: The Appeal Panel has asked me to write to you in order to confirm whether you wish to withdraw your appeal or for it to continue and be determined by the Appeal Panel. The solicitor for the Commissioner of Police has provided the Appeal Panel with an email, dated 22 March 2022, apparently from you. In it you indicated that you wanted to withdraw your appeal and were fearful for your well-being if it were to continue. This email was not sent by you directly to the tribunal. The Appeal Panel wishes to understand your real wishes regarding the appeal and does not wish to see you exposed to improper threats or intimidation. The Appeal Panel understands that you have been unwell and find the appeal proceedings stressful. The Appeal Panel is concerned that you may be feeling intimidated by attempts to interfere with Tribunal processes. The Appeal Panel needs to resolve your appeal either by completing its decision or, if you withdraw the appeal, by dismissing it. Could you please indicate in writing by Friday 10 June 2022 whether you wish to withdraw your appeal? If we do not here from you by then, the Appeal Panel will presume you want the appeal decided and proceed to make a final determination. 1. No response has been received from the appellant. 2. In those circumstances we have determined to proceed to determine the appeal. Issues 1. The issues for determination identified in paragraph 62 of our original decision and addressed in the Commissioner's submissions concerned 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. Should the outstanding issues be determined without a hearing? 1. Section 50 (2) to (4) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT) Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. 1. In this case both parties have been given an opportunity to make submissions on whether the outstanding issues can be determined without a hearing, on the materials provided. The Commissioner submitted that a hearing is not necessary. Nothing has been heard from the appellant. Having reviewed all the materials we are satisfied that the appeal can be determined, in the absence of the parties, by considering the materials lodged by them. We therefore dispense with a further hearing of the appeal. Was there evidence before the Tribunal upon which it concludes that the appellant had been supplied with the information he sought? 1. As explained in our earlier decision, at paragraphs [2] – [10], in the hearing before the Tribunal two documents were responsive to the appellant's request, in that they each contained the name of an individual who lived at the appellant's neighbour's premises. The documents were COPS Event Report E77276740 and COPS document IASUWT12: OAD. The names were different. Each fell within the scope of the appellant's access request. Both of those documents were among the confidential information before the Tribunal. 2. In its decision the Tribunal found, at [40]: … 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. 1. That disclosure had come about as a result of the release by the Commissioner of some information in COPS case report C80541986, in response to a different access application by the appellant, which contained the same name as that found in COPS Event Report E77276740. 2. In its reasons the Tribunal made no mention of the fact COPS document IASUWT12: OAD contained a different name responsive to the appellant's access application. Indeed, the Tribunal proceeded on the basis that that the information the appellant sought had been disclosed to him. This was only partially correct. Only the information responsive to his access application found in COPS Event Report E77276740 had been disclosed to him in COPS case report C80541986. The existence of different information, also responsive to his request, in COPS document IASUWT12: OAD had not been disclosed to him. The Tribunal, in the course of its deliberations, did not address that information specifically, or say anything in its reasons that would alert the appellant (and the Appeal Panel on appeal) to the fact that the documents contained different names. We were alerted to the fact by comments made by the Commissioner's representative during the appeal hearing. 3. In submissions, the Commissioner argued first that it was open to the Tribunal, on the evidence, to make the finding that the information sought had been provided to the appellant. We disagree. It was open to the Tribunal to conclude that some – not all - of the information responsive to the appellant's request had been disclosed to him. It was not open to the Tribunal to conclude that "the information sought" had been provided to appellant when different information - COPS document IASUWT12: OAD - responsive to the request was among the confidential material before the Tribunal. There was no evidence that the different name, referred to in COPS document IASUWT12: OAD, had been disclosed to the appellant. 4. Secondly, the Commissioner submits that it should be inferred from the fact that the Tribunal Member referred to both COPS Event Report E77276740 and COPS document IASUWT12: OAD, that the Tribunal was "cognizant that other responsive information had been refused". The Commissioner's submissions to the Tribunal had been that the information provided to the appellant was only partially responsive to the appellant's access application, In support of this contention the Commissioner relied on paragraph [12] of the Tribunal's decision, where the Member said: 12 I accept the Respondent's submissions that whilst this related access application is not the subject of my review, it is relevant, as the Respondent provided access to information that is, in part, responsive to the matter which is subject to my determination. 1. We do not agree with the Commissioner's submission. The information to which the Tribunal was there referring was information provided in response to the separate access application made by the appellant, seeking different information, which resulted in the partial release of COPS case report C80541986. The individual's name in COPS Event Report E77276740 formed part of that information. The Tribunal was saying that only part of the information in COPS case report C80541986 was responsive to the application under consideration. This was correct. 2. Whether the Tribunal was "cognizant" of the fact that there were two names responsive to the appellant's access application is an open question. The Tribunal certainly said nothing to indicate that was the case. 3. The Commissioner also argues that the Tribunal's conclusion was reached in the context of the appellant seeking information about a man living in his neighbour's house, who had threatened him. His ultimate purpose was to seek an AVO. How this could justify the Tribunal disregarding clear evidence of there being two names meeting the criteria (one of which had been inadvertently disclosed),and proceeding on the basis that all the material responsive to the appellant's request had been disclosed, is not explained in the Commissioner's submissions. 4. There was uncontested evidence in the confidential material before the Tribunal that there were two names responsive to the appellant's access request. The Tribunal's decision deals with only one such name. The is a material error of fact made by the Tribunal, which constitutes an error of law: see Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14] per Beazley P, Emmett JA and Tobias AJA, and House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505-506. 5. That finding necessarily means that the decision of the Tribunal will have to be set aside and access to the name in COPS document IASUWT12: OAD re-determined. The Tribunal's conduct of the balancing exercise required by s 13 of the GIPA Act. 1. At paragraphs [52] to [60] of our earlier decision we outlined how the Tribunal went about finding that that there was an overriding public interest against disclosure of the name in COPS Event Report E7727674. 2. We outlined issues concerning that decision making process which we sought submissions on. In short, those issues were whether the Tribunal identified any public interest in favour of disclosure of the information and, if so, whether it had regard to the public interests in favour of disclosure, and the general public interest in disclosure, when undertaking the balancing of public interests under s. 13 of the GIPA Act. In doing we said, at (56): 56 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]. 1. We went on to note that the Tribunal had not identified any public interest in favour of disclosure when conducting the balancing exercise and had instead had regard to the appellant's personal factors in favour of disclosure only. 2. In submissions, the Commissioner noted that the Tribunal had acknowledged the general public interest in disclosure when discussing the balancing tasks required under s 12. The Tribunal said, at [43-44]: 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. I find that the public interest considerations against disclosure, on balance, do outweigh the public interest considerations in favour of disclosure. 1. In submissions the Commissioner accepted that the Tribunal did not make express reference to the general public interest in favour of disclosure when it conducted the balancing exercise. The Commissioner submitted that it did not follow that the Tribunal did not have regard to that interest, as the Tribunal had previously expressly mentioned that it should take into account the general public interest in disclosure when undertaking the balancing exercise under s 13 of the GIPA Act. 2. We accept this submission. We think we can be satisfied that from its earlier discussion of the general public interest that the Tribunal factored that consideration into its balancing exercise. It would have been much clearer if the Tribunal had expressly mentioned each of the factors it took into account (and why) when undertaking the balancing exercise. 3. The personal factor which the Tribunal took into account was the appellant's personal motivation for seeking the information. 4. The Tribunal did not find or take into account any public interest consideration in favour of disclosure. The Tribunal confined itself to a consideration of the applicant's personal circumstances as personal factors under s 55 of the GIPA Act. At para [45] the Tribunal found: 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 1. The Commissioner submitted, at [25], that these were findings "as to the existence of the public interest favour disclosure" and "the weight to be given" to that public interest. We do not accept those submissions. 2. Section 55 of the GIPA Act makes provision with respect to when personal factors of an applicant may be taken into account in conducting the balancing test under s 13. Under the section, they may be taken into account as factors favouring or against disclosure, depending on the circumstances. The personal factors concerned are the applicant's identity and relationship with any other person, their motives for making the application, and any other factors peculiar to the applicant. Personal factors under s 55 are different from public interest considerations in favour of disclosure which are provided for in s.12. 3. The Tribunal took the appellant's personal factors into account under s 55. It made no finding as to whether there were any public interest considerations in favour of disclosure. It therefore did not attribute weight to any such factor. 4. The Tribunal's conclusion that the appellant's motives had been satisfied by the disclosure of the information he sought is thrown into doubt by the Tribunal not discussing or being obviously cognizant of the second name. 5. In our previous decision we wrote at [56] – 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]. 1. Noting that public interest considerations in favour of disclosure are not limited (s. 12), we went on to suggest the public interest in the administration of and access to justice might be a public interest consideration in favour of disclosure in this case. 2. In submissions, the Commissioner noted that the decision in JY was made under the Freedom of Information Act 1989 (NSW) (Repealed) and took issue with the notion that "personal factors" are distinct form "public interest considerations in favour of disclosure." The Commissioner submitted that the Tribunal could frame personal factors under s 55 as public interest considerations in favour of disclosure under s12. 3. Two points need to be made about this submission. 1. There is no indication in the decision that the Tribunal was treating s 55 factors as public interest considerations in favour of disclosure. Indeed, the Tribunal itself said (at (45)) that it was considering the personal factors under s 55. 2. In JY, the Tribunal said at [55]: In my opinion a consideration of these authorities points to the conclusion that a private interest may coincide with or equate to a public interest in disclosure, but it is the public interest, not the private interest, which is to be considered when balancing the competing interests in disclosure. That public interest in disclosure must be identified. The private interest may, as it does here, graphically illustrate the public interest, but it does not constitute it. 1. Contrary to the Commissioner's submission JY has since been followed in a number of cases decided under the GIPA Act. These include EMC v The University of Sydney [2021] NSWCATAD 234 at 187; EGR v Commissioner of Police, NSW Police Force [2020] NSWCATAD 94 at [58]; Betzis v Commissioner of Police [2020] NSWCATAD 71 at [83]-[84]; and APD v Commissioner of Police, NSW Police Force [2012] NSWADT 42 at [43]. Thus a private financial motive has been held not to constitute a public interest (Betzis). In Rae v Commissioner of Police [2020] NSWCATAD 189 Senior Member Gracie explained at [85] that, "While a private interest may highlight a public interest it does not constitute a public interest." 1. In the present case the Tribunal did not identify what public interests in favour of disclosure might apply, assign them any weight, or purport to balance them against the public interest considerations against disclosure. It also did not find that there were no relevant public interests in favour of disclosure. It did conclude that the public interest considerations against disclosure against disclosure outweighed those in favour of disclosure but did not identify what those factors in favour were. Rather, it treated the appellant's personal factors as the only factors favouring disclosure. In doing so the Tribunal failed to have regards to essential elements of the balancing exercise under s 13. It did not identify public interest considerations in favour of disclosure, or attribute weight to them (assuming there were some). 2. In our original decision we suggested that the public interest in the administration of and access to justice might be a public interest consideration in favour of disclosure. The Commissioner did not take issue with that position in submissions. 3. In our opinion the Tribunal's exercise of the discretion given to it under s 13 of the GIPA Act miscarried when it failed to ask itself whether there were any public interest considerations in favour of disclosure. This is an error of law in that the Tribunal failed to consider a relevant consideration in the exercise of the discretion. The issue decided by the Tribunal below will have to be redetermined. Disposition 1. While we initially indicated that we were minded to redetermine this matter ourselves, that indication was made in circumstances where we thought the appellant was pressing his appeal. Whether he is still doing so is open to doubt. 2. We now think we should remit the matter to the for rehearing by a differently constituted Tribunal with further evidence allowed. The reality is that there has not been a first instance hearing where all the information responsive to the appellant's access request has been considered. It would be unjust to deny the appellant that opportunity. 3. On a remittal, the appellant will be free to determine if he wishes to participate. If he does, he will be able to adduce evidence and put his full case, and the matter will be determined afresh with all the information in issue being considered. 4. If, on the other hand, the appellant does not participate in the reconsideration, he will face the likelihood of having his administrative review application dismissed for want of prosecution or non-appearance under s 55 of the NCAT Act. Alternatively, he may elect to inform the Tribunal and the respondent in writing that he withdraws the application whereupon the tribunal will be in a position to dismiss it. Orders 1. The appeal panel makes the following orders: 1. Appeal allowed. 2. The decision is set aside with the whole of the decision remitted to the Administrative and Equal Opportunity Division, differently constituted, to be reconsidered, with fresh evidence allowed. ********** 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: 25 July 2022