Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FNJ v Commissioner of Police, NSW Police Force [2022] NSWCATAD 130 Hearing dates: On the papers and 29 September 2022 Date of orders: 2 December 2022 Decision date: 02 December 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member Decision: (1) The decision of the respondent not to deal with the information sought by the applicant in Parts 1 and 3 of his access application is affirmed. (2) The decision of the respondent that no further information is held in response to Part 2 of the applicant's access application is affirmed. (3) The decision of the respondent to refuse to deal with Part 4 of the applicant's access application is set aside and in substitution thereof a decision is made that no information is held in response to Part 4 of the applicant's access application. (4) The decision of the respondent to refuse the applicant access to the redacted information in event report E xxxxxx901 and the redacted information in the Constable's notebook for 13 September 2019 is affirmed. (5) The decision of the respondent that no further information is held in response to Part 5 of the applicant's access application is affirmed. (6) The decision of the respondent to refuse the applicant access to the telephone recordings made on 27 and 28 May 2019 is affirmed. (7) The decision of the respondent that no further information is held in response to Part 7 of the applicant's access application is affirmed. (8) The decision of the respondent that no information is held in response to Part 8 of the applicant's access application is affirmed. Catchwords: ADMINISTRAVIVE LAW – Access to government information – information not held - conclusive presumed public interest against disclosure - Government Information (Public Access)09 (NSW) s 14(1) and Sch 1 cl 7 ADMINISTRAVIVE LAW – Access to government information – refuse to deal with information sought - Government Information (Public Access) Act 2009 (NSW) s 60(1)(d) and (e) ADMINISTRATIVE LAW – Access to government information - public interest considerations against disclosure - Government Information (Public Access) Act 2009 (NSW) s 14(2) and table item 1(d), 1(f), 2(a), 3(a), 3(b) and 3(g) – whether, on balance, the public interests against disclosure outweigh the public interest in favour of disclosure Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Freedom of Information Act 1989 (NSW) (repealed) Government Information (Public Access) Act 2009 (NSW) Police Act 1990 Privacy and Personal Information Protection Act 1998 Cases Cited: Commissioner of Police v Danis [2017] NSWCATAP 7 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 DYD v Commissioner of Police [2019] NSWCATAD 265 Leech v Sydney Water Corporation [2010] NSWADT 298 Macquarie University v Howell (No 2) [2009] NSWADTAP 19 McKinnon v Black Town City Council [2012] NSWADT 44 McLennan v University of New England [2013] NSWADT 113 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Neary v State Rail Authority [1999] NSWADT 107 Raven v The University of Sydney [2015] NSWCATAD 104 Searle Australia Pty Ltd v PIAC [1992] FCA 241; (1992) 108 ALR 163 Category: Principal judgment Parties: FNJ (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: B Hoyles (Guardian ad Litem) (Applicant) Crown Solicitor (Respondent) File Number(s): 2020/0062665 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication and broadcast of the name of the applicant and any person to which the applicant's access application relates is prohibited. For this purpose, the pseudonym 'FNJ' will be used for the name of the applicant. It is noted that s 64(4) of that Act provides that a reference to the name of the applicant and any person to which the applicant's access application relates includes a reference to any information, picture or other material that identifies the applicant and any person to which the applicant's access application relates or is likely to lead to the identification of the applicant or these persons. reasons for decision 1. On 26 February 2020, the applicant, FNJ, lodged an application with the Tribunal seeking administrative review of a decision of the respondent, the Commissioner of Police, made under s 58 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). That decision relates to eight s 41 GIPA access applications it received from the applicant on 17 and 29 December 2020. While there were eight separate access applications, the respondent decided to deal with these as one application, made up of eight parts (i.e. Parts 1 to 8) and for which the applicant paid a single access fee. 2. While I am not critical of the respondent having dealt with the applicant's eight separate access applications as a single access application, it is questionable whether this is consistent with the structured and timely approach the GIPA Act provides for administrators to deal with and determine access applications for government information. 3. There is otherwise no dispute that: 1. the decision of the respondent is an administratively reviewable decisions by the Tribunal: Administrative Decisions Review Act 1997 (NSW) (ADR Act) ss 7 and 9 and GIPA Act s 80; 2. the Tribunal has jurisdiction to hear and determine the applicant's administrative review application: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 30 and GIPA Act s 100; 3. the role of the Tribunal is to determine the correct and preferable decision having regard to the material before it and any applicable written or unwritten law: ADR Act s 63(1). That is, the Tribunal re-makes the decision the subject of review as if it were the administrator: see Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. It is also well established that the Tribunal is not constrained to have regard only to the material that was before the respondent but may have regard to any relevant material before the Tribunal at the time of its review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 4. in determining this application, the Tribunal re-makes the decision of the respondent and may decide (ADR Act s 63(3)): (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. 1. the onus is on the respondent to satisfy the Tribunal that its decision is justified: GIPA Act s 105(1). 1. The applicant's application before the Tribunal has had a protracted history, with several adjournments and miscellaneous applications by the applicant. 2. The decision the subject of review is: 1. the respondent's original decision to refuse to deal Parts 1, 3 and 4 of the applicant's access application on the grounds that the applicant was a party to current proceedings before a court and able to apply to that court for the information sought (GIPA Act s 60(1)(d) and (e)). That decision was made by a delegate of the respondent on 19 February 2020; and 2. the decision made on re-consideration during these proceedings, on 11 August 2020, by another delegate of the respondent, Ian Steptoe, Senior Advisory Officer at Infolink-Police Command of the NSW Police Force (NSWPF). In that decision Ian Steptoe decided: 1. to refuse the applicant access, in part, to the information falling within Part 5 of his access application on the grounds of an overriding public interest against disclosure (GIPA Act s 14(2) Table item T1(d), T1(f), T2(a), T3(a), T3(b) and T3(g)); 2. to refuse the applicant access to telephone recordings falling within Part 7 of his access application on the grounds of a conclusively presumed overriding public interest against disclosure (GIPA Act s 14(1) Sch 1 cl 7); 3. no further information is held that is responsive to Parts 2, 5 and 7 of the applicant's access application; and 4. no information is held that is responsive to Part 8 of the applicant's access application. 1. The parties agree that Part 6 of the applicant's access application is no longer the subject of this application as this Part is duplicate of an earlier access application the applicant made. That application has been separately determined by the respondent and the respondent's decision is the subject of another administrative review application of the applicant that is before the Tribunal. Hence, I have not considered it any further. 2. In these proceedings, the respondent contends that its decision, other than its decision concerning Part 4, is the correct and preferable decision. In regard to Part 4, the respondent contends that on the evidence of Ian Steptoe, the correct and preferable decision is that no information is held that is responsive to this Part. 3. For the reasons that follow, on the material before the Tribunal and the applicable law, I am satisfied that: 1. the correct and preferable decision concerning the information the applicant seeks in Part 4 of his access application is that no information is held responsive to this Part; and 2. the respondent has established that the decisions made concerning the information sought by the applicant in Parts 1, 2, 3, 5, 7 and 8 of his access application is justified. Proceedings before the Tribunal 1. It is unnecessary to deal at length with how this application progressed before the Tribunal other than to note the following: 1. in April 2021, the Tribunal (differently constituted), made an order, under s 45(4) of the NCAT Act, appointing Mr B Hoyles as Guardian ad Litem for the applicant. 2. On 2 June 2021, I made the following order: By consent The hearing listed for 21 June 2021 is vacated. Pursuant to s.50 of the Civil and Administrative Tribunal Act 2013, a hearing is dispensed with. The matter will be determined, on the bases of the documents provided by the parties after 21 June 2021. 1. After the matter had been reserved, in October 2021 and again in early 2022, the applicant, FNJ, wrote to the Registry seeking non-publication orders of the decision, including the reasons for decision, in these proceedings and other GIPA administrative review proceedings the applicant had brought before the Tribunal that had been finalised. On each occasion orders were made for the applicant, FNJ, to provide the Tribunal and the respondent with any evidence and submissions in support of his application for non-publication. Orders were also made for the respondent to reply to any evidence or submissions the applicant provided. 2. The applicant, FNJ, did not provide any evidence or submissions in these proceedings or any of the other matters for which he sought a non-publication order. However, the respondent did provide written submissions in these proceedings and other proceedings. In the submissions for these proceedings, the respondent did not oppose the making of a non-publication order as the information for which the applicant sought access included sensitive information about specified children and a disclosure of the applicant's name could also disclose the name of those children. 3. On 29 September 2022, I heard and determined FNJ's most recent miscellaneous matter application for a non-publication order. Both Mr Hoyles and FNJ appeared that day. By consent, I made the order sought in these proceedings for the reasons set out in the respondent's submissions. That order was made under s 64(1)(a) of the NCAT Act, which included the non-publication of the name of the applicant and 'any person to which the applicant's access application relates'. 1. Given the breadth of the non-publication order I made, in my open reasons for decision I have not fully disclosed the NSWPF event report numbers for which the applicant seeks access. Nor have I disclosed the name of the Police Officers referred to by the applicant in his access application. These numbers and the names of the Police Officers are however, disclosed in my confidential reasons for decision that is only to be provided to the parties. 2. Finally, at the hearing on 29 September 2022, Mr Hoyles and FNJ confirmed that the applicant's administrative review application was pressed. Hence, in accordance with the order I made on 2 June 2020, this application is being determined on the papers provided by the parties to the Tribunal as at, 21 June 2021. That is, this is the date on which the correct and preferable decision is be made: see Danis. The GIPA Act 1. It is convenient to first deal with the relevant provisions of the GIPA Act. 2. The object of the GIPA Act is as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by— (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure (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. The expression 'government information' is defined in s 4(1) of the GIPA Act to mean 'information contained in a record held by an agency'. The word 'record' is broadly defined in cl 10 of Sch 4 of the GIPA Act and includes the information contained in telephone recordings, bodycam footage and dashboard camera footage. Public interest considerations 1. Part 2 of the GIPA Act sets out the general principles that apply in accessing government information under that Act. 2. Section 5 in Division 1 of Part 2 contains a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) in this Division provides that a person who makes an access application for government information is given a legally enforceable right to be provided with access to the information in accordance with Part 4 of the Act unless there is an overriding public interest against disclosure of the information. 3. The public interest test is set out in s 13 of Division 2 in Part 2 of the GIPA Act. That test is in the following terms: 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. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that public interest considerations in favour of disclosure are not limited. 1. Section 14 deals with the public interest considerations against disclosure. Section 14(1) provides that the information prescribed in Sch 1 of that Act, is information for which there is a conclusive presumption of an overriding public interest against disclosure. By reason of s 14(1), information falling within one or more of the documents listed in Schedule 1 of the GIPA Act the abovementioned public interest test of there being an overriding public interest against the disclosure will be satisfied without the need to undertake a balancing of the competing public interests as set out in s 13. 2. Included in Schedule 1 is cl 7 which concerns information contained in documents affecting law enforcement and public safety. That clause relevantly provides as follows: 7 Documents affecting law enforcement and public safety It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents— (a) … (b) a document created by the State Intelligence Command or the Counter Terrorism and Special Tactics Command of the NSW Police Force, the former Counter Terrorist Co-ordination Command of the NSW Police Force, the former Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence, … (Emphasis added.) 1. The table to s 14(2) of the GIPA Act sets out a specified number of public interest considerations against disclosure. These are the only permissible public interest considerations against disclosure. Hence, where the information for which access is sought falls within one or more of the s 14(2) public interest considerations against disclosure, the abovementioned public interest test must be applied by considering where the balance lies between the public interest consideration against disclosure and the public interest consideration in favour of disclosure. I have dealt with these below under the heading 'Part 5 of the applicant's access application'. How an access application can be made and how agency is to deal with and decide an access application 1. Part 4 of the GIPA Act contains provisions about how an access application is to be made and how a government agency is to deal with and decide an access application. 2. Section 41 of the GIPA Act sets out the formal requirements for making a valid access application. This includes a requirement for the access application to be accompanied by a fee of $30 (GIPA Act s 41(1)(c)). However, s 51A makes provision for the agency to waive, reduce or refund an application fee. 3. Section 53 of the GIPA Act prescribes what searches must be undertaken for the information for which an access applicant seeks access. That section relevantly provides as follows: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources. 1. Section 55 makes provision for personal factors of an access applicant to be taken into account in determining whether there is an overriding public interest against disclosure of the information, or whether they are a factor in favour of providing the applicant with the information: 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. … 1. Section 58 sets out what decisions can be made in determining an access application. That section relevantly provides as follows: 58 How applications are decided (1) An agency decides an access application for government information by— (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) …, or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) … 1. Where an agency determines to provide access to the information sought, s 73 of the GIPA Act provides that an agency is not entitled to impose any conditions on the use or disclosure of the information. 2. As noted above, s 60 of the GIPA Act sets out the circumstances in which an agency can decide to refuse to deal with an access application. That section relevantly provides as follows: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)— (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989, (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order, (e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is— (i) a party to current proceedings before a court, and (ii) able to apply to that court for the information. Material before the Tribunal 1. In support of his case, the applicant relies on the submissions provided by his appointed Guardian ad Litem on 3 May 2021. 2. In support of her case, the respondent relies on the following material: 1. Affidavit of Ian Steptoe, Senior Advisory Officer at Inforlink-Police Command, sworn on 5 June 2020; 2. Affidavit of Ian Steptoe sworn on 27 January 2021; 3. Affidavit of Ian Steptoe sworn on 18 May 2021; 4. Affidavit of Inspector Richard Mathew Mansley sworn on 3 June 2020; 5. Written submissions dated 5 June 2020 and 27 January 2021; and 6. Written submissions in reply dated 18 May 2021. 1. In accordance with s 107(2) and (3) of the GIPA Act, the respondent provided to the Tribunal, in confidence, a copy of the information for which the respondent claimed there was an overriding public interest against disclosure. Applicant's access application 1. Sometime around 17 December 2019, the respondent received six NSWPF pro-forma access applications (pro-forma access application) from the applicant. The applications were dated 9 October 2019 (one application), 17 November 2019 (three applications) and 24 November 2019 (two applications). 2. On 17 December 2019, the respondent notified the applicant, pursuant to s 51(1)(a) of the GIPA Act that each application was invalid because they were not accompanied by the required $30 application fee: GIPA Act s 41(1)(c). The applicant responded on the same day to say that they were all one application, which he said were submitted in the form requested by the respondent. 3. On 18 December 2019, the respondent wrote to the applicant to say that all six applications would be dealt with as a single application and that they would be given the reference number IASU 2019-5915. 4. On 29 December 2019, the respondent received two further pro-forma access applications from the applicant. 5. On 3 January 2020, the respondent advised the applicant that his eight applications would be dealt with as a single application for access under the same reference number referred to above. 6. In summary, the information sought by the applicant in each application or Part (other than Part 6) is as follows: 1. Part 1 – the event number and narrative from the named individual police officers and other members of the investigation team who were involved in the incident that occurred on 23 November 2018 (AVO application) and 2 May 2019 (interim order application); 2. Part 2 - Event Number E xxxxx636 – including the police narrative, names of the police officers, police notes memos and reports, VKG recording of the incident, body cam footage (BWC), Dashboard camera and other footage taken by handheld devices such as mobile phones or other devises; 3. Part 3 - event number and narrative from the named individual police officers and other members of the investigation team who were involved in the incident that occurred on 23 November 2018 (AVO application) and 2 May 2019 (interim order application); 4. Part 4 - the incident that occurred on 29 October 2019 - including VKG recording of the incident, body cam footage (BWC), Dashboard camera and other footage taken by handheld devices such as mobile phones or other devises; 5. Part 5 - Event Number E xxxxx688 – event number, names and ranks of Police, with narratives, concerning an incident that occurred on 13 September 2019; 6. Part 7 – a copy of three telephone recordings made by Detective Sergeant MM and other Detectives during telephone calls they had with the applicant on 27, 28 and 29 May 2019; and 7. Part 8 – a copy of all covertly recorded telephone calls, made by law enforcement agencies, including the respondent, to the applicant's mobile number during 19 to 23 November 2018, any transcripts of such calls and a copy of the listening device or surveillance warrant. 1. At the request of the respondent, the applicant agreed to refine his last two applications by limiting the information sought to the telephone recordings made by Detective Sergeant MM. The respondent's original determination 1. On 18 February 2020, a delegate of the respondent determined the entirety of the applicant's access application, without any reference to the various Parts. In his notice of decision, the respondent's delegate said that he had decided, under s 60(1)(e) of the GIPA Act, to refuse to deal with the applicant's access application because he believed that the applicant was a party to current proceedings before a court and able to apply to the court for the information sought in his access application. The respondent's re-determination of the applicant's access applications 1. As I have already noted, on 11 August 2020, Ian Steptoe, reconsidered the respondent's original decision and made a further determination concerning the information for which the applicant sought access in the applications marked Parts 2, 5, 7 and 8 of his access application. In summary, Ian Steptoe determined: 1. Part 2 – (a) to provide the applicant with access to all the information in Event Number E xxxxx636; and (b) no further information was held in response to Part 2 of the applicant's access application; 2. Part 5 – (a) to provide the applicant with access, in part, to the information in Event Number E xxxxx901 in response to Part 5 of the applicant's access request; and (b) to refuse access to the remaining information in Event Number E xxxxxx901 on the grounds of an overriding public interest consideration against disclosure in item T1(d), T1(f), T 2(a), T3(a), T3(b) and T3(g) in the table to s 14(2) of the GIPA Act; and (c) no further information was held; 3. Part 7 – (a) to refuse access to the two telephone recordings held by the respondent on the grounds that there is a conclusively presumed overriding public interest consideration against disclosure: GIPA Act s 14(1) and Sch 1 cl 7; and (b) no further information held; and 4. Part 8 - no information is held in response to this Part of the applicant's access application. 1. In the respondent's written submissions of 5 June 2020, the respondent noted: 1. the information sought by the applicant in Parts 1 and 3 of his access application (events that occurred between 19-23 November 2018) were identical; and 2. the original decision to refuse to deal with the applicant's access application remained the correct and preferable decision concerning the information in Parts 1 and 3 of the applicant's access application: GIPA Act s 60(1)(d) and (e). 1. In the same written submissions, the respondent submitted that the original decision concerning Part 4 of the applicant's access application was not the correct and preferred decision. Instead it was submitted that, based on the 5 June 2020, affidavit evidence of Ian Steptoe the correct and preferable decision was that no information was held in response to this Part. Matters in issue 1. As I have already noted, each decision made by the respondent concerning Parts 1-5, 7 and 8 are in dispute in that the Guardian ad Litem for the applicant pressed access to the withheld information for which the applicant sought access and also questioned the sufficiency of searches undertaken by the respondent concerning the decision that no information or no further information was held. 2. I have dealt with these matters below. Part 1 and 3 of the applicant's access application Evidence and submissions 1. There is no dispute that Parts 1 and 3 of the applicant's access application are duplicates and seek the same information, namely information concerning an incident that occurred on 23 November 2018 (AVO application) and a 2 May 2019 interim order application. 2. As noted above, the respondent determined not to deal with these Parts of the applicant's access application on the grounds set out in s 60(1)(d) and (e) of the GIPA Act: see at [28] above (that is, the information is or has been the subject of a subpoena a court and is available to the applicant as a result of having been produced in compliance with the subpoena and/or it is reasonably believed that the applicant, or a person acting in concert with the applicant, is a party to proceedings before a court and able to apply to the court for the information sought). 3. In support of her case, the respondent relies on the affidavit evidence of Ian Steptoe sworn on 5 June 2020, 27 January 2021 and May 2021. In these affidavits Ian Steptoe gives evidence of the proceedings in the Local Court, the District Court, the Children's Court, and the Supreme Court where the applicant was a party and where, the respondent was required to produce, pursuant to a subpoena issued by the Court, documents relating to the events that included those that are the subject of Parts 1 and 3 of the applicant's access application. 4. Copies of the relevant subpoenas are included in Exhibit IS – 2 of Ian Steptoe's January 2021 affidavit and Exhibit IS – 3 of his May 2021 affidavit. It is unnecessary to deal with these in detail other than to note when these subpoenas were sought, what documents were sought, when they were issued and the nature of the documents sought and were produced by the respondent, or production was not pressed: 1. in late 2018 and in 2019, during the proceedings in the Local Court and the District Court, the applicant made 16 applications for the issue of a subpoena to the respondent seeking production of specified documents that included documents containing information about and around the incidents that occurred on 23 November 2018 (AVO application) and 2 May 2019 (interim order application). The respondent produced documents in response to the subpoenas and the applicant was granted access to these. In some cases, access was limited to viewing by the applicant; 2. in June 2020, at the request of the applicant, the District Court, issued three further subpoenas addressed to the respondent requiring the production of specified documents. However, the applicant did not press for the production of these documents; 3. in March 2021 and 10 May 2021, at the request of the applicant, two further subpoenas were issued by the District Court for the respondent to produce specified documents. The subpoenas sought production of 12 and 11 categories of documents respectively. As at 18 May 2021, the respondent had produced documents in response to the March subpoena; 4. in April 2020, the respondent produced documents, pursuant to a subpoena, issued by the Children's Court at the request of another party to the proceedings before the Court, in which the applicant was a party. Included in the documents produced by the respondent were 126 COPS Event reports, that included the events relating to the period on and around 23 November 2018 and the subsequent interim AVO application; 5. in December 2020, at the request of the applicant, the Children's Court issued a subpoena to the respondent requiring the production of documents that included: all records of interviews, emails and file notes of conversations with the applicant or about the applicant between December 2017 and 26 November 2020. In January 2021, the applicant was granted viewing access, at the Children's Court Registry, to the paper documents produced by the respondent in response to the subpoena. The applicant was also granted access to two computer disc recordings of police interviews which he was not permitted copy or disseminate to a person not a party to the proceedings; 6. in May 2021, at the request of the applicant, the Children's Court issued three subpoenas to the respondent for the production of a wide range of documents, including the events relating to the period on and around 23 November 2018 and the subsequent interim AVO application. As at 18 May 2021, no documents had been produced by the respondent; 7. in 2020, the applicant commenced proceedings, by summons, in the Supreme Court. In January 2021, the applicant made an application for the issue of a subpoena to the respondent for specified documents for the period December 2017 to 26 November 2020. As the Supreme Court proceedings were dismissed in May 2021, the subpoena lapsed and no documents were produced by the respondent. 1. The 27 January 2021 written submissions of the respondent, note that there is considerable overlap in the documents for which production was sought in the abovementioned subpoenas. The respondent also noted that the documents produced by the respondent included documents containing information of the kind identified by the applicant in Parts 1 and 3 of his access application. The respondent went on to submit that, to the extent, if any, the documents produced pursuant to a subpoena did not contain information of the kind sought in Parts 1 and 3 of the applicant's access request, it was open to the applicant to make a further application for the issue of a subpoena, seeking production of the documents containing the information which he believed to be missing. 2. The Guardian ad Litem does not dispute that, as at, 18 May 2021, when Ian Steptoe swore his third affidavit, the applicant was a party to proceedings before a Court where a subpoena had been issued requiring the production of documents containing information of the kind falling within Parts 1 and 3 of the applicant's access application. However, the Guardian ad Litem went on to submit that the 'documents previously supplied under subpoena be released under GIPA, together with those that have been found that do not overlap' because: 1. the personal circumstances of the applicant were exceptional and relevant; 2. the documents produced pursuant to the subpoena were produced to the relevant Court and could only be used in the proceedings before that Court, which meant that the applicant could not refer to, or attach copies of the documents to any legal action he might initiate in the future. Instead, the applicant will be required to 'go along the subpoena path all over again in an expensive Court process'; and 3. due to the applicant's exceptional situation, he had a 'need to compare information across copies of documents to identify errors and omissions'. Consideration and findings 1. The applicant having been granted access to information pursuant to a subpoena issued by a court does not give rise to the applicant being granted access to the same information under the GIPA Act. As noted above, under the GIPA Act, the applicant's right to access is subject to there being an overriding public interest against the disclosure of the information sought: GIPA Act s 13 and 14. That is, the right to access under the GIPA Act is not determined on the private interest of a party to litigation. Instead, it is determined having regard to objectively assessed public interests for and against disclosure of the information for which access is sought. 2. Furthermore, in giving an agency the power to make a decision not to deal with an access application on the grounds set out in s 58(1)(e) of the GIPA Act, Parliament has decided that there are circumstances where an agency should not be required to deal with an application for access to government information. Those circumstances include those which would give rise to an unreasonable and substantial diversion of the agencies resources, the access applicant has already been provided with the information sought, and where the access applicant has had access to the information by reason of the information having been produced in compliance with a subpoena issued by a court: GIPA Act s 60(1)(a), (b), (d) and (e). 3. Based on the undisputed evidence of Ian Steptoe, I am satisfied that the information for which the applicant seeks access in Parts 1 and 3 of his access application falls within the circumstance of s 60(1)(d) and (e) because: 1. the information sought by the applicant in Parts 1 and 3 has been the subject of a subpoena of a court for the production of documents containing the information sought and for which the applicant has been granted access as a result of the respondent having produced the documents in compliance with the subpoena (GIPA Act s 60(1)(d)); and 2. as at 21 June 2021, there was a reasonable belief that the applicant remained a party to proceedings in the Children's Court and was able to apply to that Court for the information specified in Parts 1 and 3 of his access application (GIPA Act s 60(1)(e)). 1. As noted in the respondent's written submissions, the decision to refuse to deal with an access application on the grounds set out in s 60(1)(d) and (e) of the GIPA Act is a discretionary one. How that discretion is to be exercised was considered by the Appeal Panel in Danis at [49]: 49 In our view, the Tribunal when reviewing decision to invoke a s 60(1) should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources. In the case of decisions founded on s 60(1)(d), the restrictions that apply to party use of subpoenaed material might be relevant, as well agency considerations in relation to respect for court orders. This is not intended to be an exhaustive statement of the matters to be taken into account in any particular case. We accept that there may be factors of a personal kind, related to the particular application and the access applicant's personal circumstances, that may also be relevant. 1. Based on the undisputed affidavit evidence of Ian Steptoe and the terms of the subpoenas issued by the Courts, I find that the discretion should be exercised in favour of a decision to refuse to deal with Parts 1 and 3 of the applicant's access application for the following reasons: 1. responsibility for the administration and determination of all access applications made to the respondent under the GIPA Act lies with the Infolink – Police Command (Infolink); 2. responsibility for receiving, processing and dissemination all subpoenas served on the respondent also lies with the Infolink; 3. each year Infolink receives and processes a significant number of GIPA access applications and subpoenas. For the year 31 May 2019 to 1 June 2020, Infolink received 6,432 access applications and 9,523 subpoenas, which involve considerable resources in ensuring that access applications and subpoenas are processed accurately, efficiently and in a timely manner; 4. in this case, the evidence is that the applicant has sought the issue of numerous subpoenas in the Local Court, the Children's Court and the District Court seeking production of documents by the respondent that contain the same information to that which is contained in Parts 1 and 3 of his access application the subject of these proceedings; 5. the respondent has been required to expend considerable resources in responding to these subpoenas and a duplication of those resources in dealing with Parts 1 and 3 of the applicant's access request would not be an efficient use of those resources, especially given the 20 working day limit within which an access application is to be determined under s 57 of the GIPA Act; and 6. as the information sought by the applicant in Parts 1 and 3 of his access application includes information of a very sensitive kind, the appropriate forum for him to access the information is as produced to the Court for the purpose of the legal proceedings in which the applicant was a party. 1. Accordingly, on the material before the Tribunal and the applicable law, I am satisfied that the respondent has established that her decision to refuse to deal with Parts 1 and 3 of the applicant's access application on the grounds set out in s 60(1)(e) of the GIPA Act is justified. I am also satisfied that it is the correct and preferable decision and should be affirmed. Part 2 of the applicant's access application 1. In his January 2021 affidavit, Ian Steptoe noted that the applicant had been granted access to Event Number E xxxxx636. This is a two-page document of an Event that occurred on 15 October 2019. 2. It is the evidence of Ian Steptoe that no further information was held by the respondent concerning this incident. The Guardian ad Litem questioned whether sufficient searches had been made for the information sought. 3. As noted above, at [24], the obligations of an agency to search for the information sought by an access applicant is set out in s 53 of the GIPA Act. That obligation is to 'undertake such reasonable searches as may be necessary to find' the information sought that is held by the agency. Furthermore, the agency's searches must be 'conducted using the most efficient means reasonably available' to the agency, which extends to 'resources that facilitate the retrieval of information stored electronically'. 4. In his January 2021 affidavit, Ian Steptoe provided the following explanation of the searches he undertook in response to the information sought in Part 2 of the applicant's access application: 1. the respondent's COPS database, where it was noted that the Event Number E xxxxx636 was not linked to any 'job' on the respondent's Computer Aided Dispatch (CAD) system, which means that there would be no VKG radio audio recording. Nor were there any case file items, such as body worn video footage or third-party CCTV footage, linked to the event; 2. the text of the event did not indicate that there was any other information held by the respondent relevant to the event, which was consistent with the brief interchange recorded in the event; 3. at his request, the relevant Police Area of Command (PAC) also undertook searches for information responsive to Part 2 of the applicant's access application. Senior Constable SG undertook further searches and confirmed that the PAC did not hold any CCTV or body worn footage. Nor were there any police notebook entries or any emails between himself and Detective Sergeant MM relating to this event. 1. Based on the undisputed evidence of Ian Steptoe, I find that the respondent has met her obligations under s 53 of the GIPA Act and undertaken reasonable searches, as necessary, to find the information sought by the applicant in Part 2 of his access application. 2. Accordingly, I am satisfied that, on the material before the Tribunal and the applicable law, the respondent has established that the decision is justified in that no further information is held, falling within Part 2 of the applicant's access application. I am also satisfied that this is the correct and preferable decision and should be affirmed. Part 4 of the applicant's access application 1. In his June 2020 affidavit, Ian Steptoe said that he had searched the COPS data base for the information sought in Part 4 of the applicant's access application. That information concerned an event that the applicant said police had attended on 29 October 2019. In his affidavit, Ian Steptoe said he had been unable to identify any record in the COPS database of the NSWPF having attended an event, as described by the applicant, on 29 October 2019. Ian Steptoe said that on this basis he was satisfied that no information, in response to Part 4 of the applicant's access application, was held by the respondent. 2. The Guardian ad Litem appears to have accepted that there is no record of the police having attended an event on 29 October 2019. He did, however, attach a copy of a letter the applicant had received from the NSW Police Professional Standards in November 2019 concerning a complaint the applicant had made against police. I note that the letter does refer to two police officers having attended on the applicant, on 29 October 2019, and that no event report had been created concerning that attendance. In his submissions, the Guardian ad Litem noted that NSW Police Professional Standards had investigated the applicant's complaint against the Officers who had attended, and it was his submission that there must be some record held of this attendance. 3. In my opinion, it does not follow that because police had attended on the applicant on 29 October 2019, that an incident report is made of that attendance. The letter provided by the Guardian ad Litem from the NSW Police Professional Standards, I note, does not indicate that the attendance on the day in question was in relation to a specific incident involving the applicant. 4. As Ian Steptoe explained in his evidence, any incident requiring police attendance is recorded and retained on the police COPS database. In this case, on the information before the Tribunal, there is no evidence of a specific incident, involving the applicant, had occurred on 29 October 2019. 5. Hence, I am satisfied that, in accordance with s 53 of the GIPA Act, reasonable searches were made for the information sought in Part 4 of the applicant's access application. 6. Based on the material before the Tribunal and the applicable law, I agree with the respondent that the correct and preferable decision concerning the information sought in Part 4 of the applicant's access request is that no information is held in response to that Part. Accordingly, I find that the original decision of the respondent concerning Part 4 should be set aside and in substitution thereof a decision that no information is held in response to Part 4 of the applicant's access application should be made. Part 5 of the applicant's access application 1. In his January 2021 affidavit, Ian Steptoe, said that he undertook searches of the COPS database for the information sought by the applicant in Part 5 of his access application. He said he used search terms relating to the information provided in this Part of the applicant's access application that included the name of the applicant, the applicant's address, the nominated COPS event number and the nominated incident date. 2. In response to those searches Ian Steptoe found a COPS event report, Event number E xxxxxx901, which was not the event report nominated by the applicant in his access application. However, it was an event report of an incident that occurred around the same time identified by the applicant in his access application. Ian Steptoe noted that the event report identified by the applicant in Part 5 of his access application was the same event report the subject of Part 6 of the applicant's access application. Furthermore, it was an event that occurred in November 2019 and not September 2019 as identified by the applicant. Part 6, as I have already noted, is no longer the subject of review in this application. 3. Ian Steptoe noted that he had requested the named Police Command to undertake further searches for information responsive to Part 5 of the applicant's access application. In particular, he requested that any notebook entry, or other recording made on 13 September 2019 be located. He said that, in response to his request, he was provided with a copy of the relevant pages of the notebook of the Constable who had made an entry of the incident on the day in question. The Constable also confirmed that no further information was held relating to the event that occurred on this day or Event number E xxxxxx901. 4. As noted above, having obtained a copy of the event report and the Constable's notebook, Ian Steptoe determined: 1. to refuse, in part, access to the information in the event report E xxxxxx901 on the grounds that there was an overriding public interest against the disclosure of that information; 2. to otherwise grant the applicant access to the remaining information in the event report; and 3. to refuse, in part, access to the information in the Constable's entry into her notebook on 13 September 2019 on the grounds that there was an overriding public interest against the disclosure of that information; and 4. to otherwise grant the applicant access to the remaining information in the notebook relevant to that event. 1. I have dealt with the respondent's decision to withhold the information in the event report and the notebook below. I have also dealt with the submissions of the Guardian ad Litem below. 2. I am otherwise satisfied that, in accordance with s 53 of The GIPA Act, reasonable searches were made for the information sought in Part 5 of the applicant's access application and other than the event report E xxxxxx901 and the Constable's entries into her notebook on 13 September 2019, no further information is held by the respondent falling within Part 5 of the applicant's access request. Part 7 of the applicant's access application 1. In his January 2021 affidavit, Ian Steptoe explained that he had forwarded Part 7 of the applicant's access application to Detective Sergeant MM, to search for the information sought by the applicant in that Part and Part 8. Ian Steptoe explained that the Detective Sergeant was an Officer within the Fixated Persons Unit which was Unit within the Counter Terrorism and Special Tactics Command of the NSW Police Force. 2. As noted above, in Parts 7 and 8 of his access application, the applicant specifically sought access to recordings the Detective Sergeant had made of telephone calls he had with the applicant on 27, 28 and 29 May 2019 (Part 7) and on 19 to 23 November 2019 (Part 8). 3. In his affidavit, Ian Steptoe said that the Detective Sergeant had located two recordings falling within Part 7 of the applicant's access application. These were recordings of telephone conversations with the applicant on 27 May 2019 and 28 May 2019. Ian Steptoe said that, as the recordings were made by the Fixated Persons Unit, he considered the recordings to have been made by the Counter Terrorism and Special Tactics Command because the Unit was part of that Command. On this basis, Ian Steptoe said he determined to refuse the applicant access to the information on the grounds of the conclusively presumed overriding public interest against disclosure in cl 7 of Schedule 1 of the GIPA Act. 4. In his submission, the Guardian ad Litem accepted that the Fixated Persons Unit was originally part of the Counter Terrorism and Special Tactics Command. However, at the time of making his submissions, the Guardian ad Litem submitted that the respondent's website indicated that the Command no longer included, within it, the Fixated Persons Unit. Hence, he questioned whether the cl 7 Sch 1 conclusively presumed overriding public interest against disclosure applied. 5. The Guardian ad Litem also added the following remarks of FNJ concerning this Part: Even if it is counter terrorism, unless it's about terrorism then I have the right to view this material as it's not terrorism related and I am on the phone call with him, it's not secret and using the counter terrorism platform, to abuse the GIPA Act, I am sure there must be case law somewhere. Consideration 1. The issue for determination is whether the recordings of telephone calls made in November 2019, are a 'document' created by the Counter Terrorism and Special Tactics Command. If so, there is a conclusive presumption of an overriding public interest against the disclosure of the information in those recording: GIPA Act s 14(1) and Sch 1 cl 7(b). 2. While a document is included in the cl 4 of Sch 4 of the GIPA Act meaning of the word 'record', the word 'document' is not defined in that Act. However, the meaning of commonly used words in any NSW Act or instrument is set out in s 21(1) of the Interpretation Act 1987 (NSW). Included in that section is the meaning of the word 'document' as being 'anything from which sounds, images or writings can be reproduced with or without the aid of anything else.' Hence, in the absence of the word 'document' being defined in the GIPA Act, the meaning of that word in the Interpretation Act applies and on this bases it includes telephone recordings of the kind for which the applicant seeks access. 3. The actual content of the information is of no relevance to the application of cl 7(b) of Sch 1. What is relevant is whether the recordings were 'created' by the Counter Terrorism and Special Tactics Command. 4. There is no dispute that the recordings were 'created' in November 2019 by the Fixated Persons Unit. Hence the question is whether that Unit was part of the Counter Terrorism and Special Tactics Command at that time and not at a subsequent time. 5. It is the evidence of Ian Steptoe that the Unit was part of the Counter Terrorism and Special Tactics Command at the time the recordings were created. The submissions of the Guardian ad Litem appear to agree. Hence, I accept the evidence of Ian Steptoe that the November 2019 recordings were created by the Counter Terrorism and Special Tactics Command of the NSWPF. On this basis, I find that each recording is a 'document' created by that Command and a 'document' falling within cl 7(b) of Sch 1 of the GIPA Act. 6. Accordingly, on the material before the Tribunal and the applicable law, I am satisfied that the respondent has established that there is a conclusively presumed overriding public interest against disclosure of the 27 and 28 May 2019 telephone recordings. I also find, that the decision of the respondent to refuse access to the two telephone recordings, on the grounds of a conclusively presumed public interest against disclosure, is the correct and preferred decision and should be affirmed. Part 8 of the applicant's access application 1. As noted above, in dealing with this Part of the applicant's access application, Ian Steptoe had forwarded a copy of Part 8 to Detective Sergeant MM to search for any information responsive to Part 8. It is Ian Steptoe's evidence that the Detective Sergeant had confirmed that no recordings or transcripts were held within the Fixated Persons Unit that was responsive to that Part for the period 19-23 November 2019. 2. I accept the evidence of Ian Steptoe and I am satisfied that, in accordance with s 53 of The GIPA Act, reasonable searches were made for the information sought in Part 8 of the applicant's access application. I am therefore, satisfied, having regard to the material before the Tribunal and the applicable law, that the respondent has established that its decision that no information is held that is responsive to Part 8 is justified. Accordingly, I find that the decision of the respondent that no information is held in response to Part 8 of the applicant's access application is the correct and preferred decision and should be affirmed. Event Report: E xxxxxx901 1. Event report E xxxxxx901 is 14 pages in length and the withheld information (i.e. redacted information) is on pages 1, 3, 4, 7, 8, 9, 10 and 11. The public interest considerations against disclosure relied on by the respondent are one or more of those at item T1(d), T1(f), T1(h), T2(a) and T 3(a) and T3(g) of the Table to s 14(2) of the GIPA Act. 2. In the Event report provided to the applicant by the respondent, the respondent marked each deletion in that report with the relevant public interest consideration against disclosure (i.e. the T item number) relied on to refuse him access to that information. 3. In her written submissions, the solicitor for the respondent submitted that the public interest considerations at item T2(a), and T3(b) of the Table to s 14(2) of the GIPA Act also applied. 4. It is convenient to first deal with these public interest considerations against disclosure. Public interest considerations against disclosure GIPA Act and legal principles 1. The s 14(2) Table public interest considerations against disclosure relied on by the respondent are in the following terms: 1 Responsible and effective government 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 (whether in a particular case or generally)— … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (f) prejudice the effective exercise by an agency of the agency's functions, … 2 Law enforcement and security 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 (whether in a particular case or generally)— (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice prevention, detection or investigation of a co9ntravention or possible contravention of the law or prejudice the enforcement of the law, … 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, … (g) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed. 1. It has been accepted that the word 'prejudice' should be given its ordinary meaning, namely - 'to cause detriment or disadvantage' or 'impede or derogate from': see McLennan v University of New England [2013] NSWADT 113. 2. The term 'reveal information' is defined in cl 1 of Sch 4 of the GIPA Act to mean 'to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)'. 3. The term 'personal information' is broadly defined in cl 4 of Sch 4 of the GIPA Act as follows: 4 Personal information (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, … 1. Section 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) limits the circumstances in which a government agency is permitted to disclose personal information it holds as follows: 18 Limits on disclosure of personal information (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. 1. An agency that discloses personal information it holds of a person contrary to s 18 of the PPIP Act is a contravention of that Act: PPIP Act s 52. Relevant legal principles 1. As noted above, the s 14(2) public interest considerations against disclosure are dependent on whether the disclosure of the information in issue 'could reasonably be expected to' have the effect as prescribed in the relevant clause in the Table to that subsection. This is to be assessed objectively and approached from the view point of a reasonable decision maker and based on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; (1992) 108 ALR 163 and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. 2. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [25], the Appeal Panel noted that there was a structured approach to the decision-making task under the GIPA Act in that: 25 … [The] agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal's task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions. The Table considerations are concerned with systemic features of the operation of government. 1. At [26], the Appeal Panel went on to note that when examining whether there is a public interest consideration against disclosure, this needs to be examined at the broader operational level of the relevant agency, rather than introducing particulars of the 'instant situation' that is before the Tribunal, which should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations. 2. It is accepted that the question as to whether the information in issue is 'confidential information', is a question of fact that must be examined by reference to the agency's evidence as to the conditions under which it conducts its service/functions within which the information was received: Camilleri, at [33] and McKinnon v Black Town City Council [2012] NSWADT 44, at [54]-[58]. 3. The former Freedom of Information Act 1989 (NSW) (repealed) (FOI Act (repealed)) contained a similar provision to cl 1(d) of the GIPA Act: FOI Act (repealed), Sch 1 cl 13(b)(ii). 4. It is accepted that the Tribunal is required to engage in an a relatively abstract analysis in determining whether the information in issue is confidential information: see Macquarie University v Howell (No 2) [2009] NSWADTAP 19, at [10], where the Appeal Panel of the former Administrative Decisions Tribunal said the following in respect of a similar provision in the former FOI Act (repealed): 10 … [The] Tribunal needs to characterise the nature of the material sought to be protected on the present occasion; identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; and consider the extent to which guarantees of confidentiality may be necessary. It is then necessary to evaluate the effect on the agency's ability in future to obtain similar information. 1. In Raven v The University of Sydney [2015] NSWCATAD 104, at [62], the Tribunal held that: … [The] term "confidential information" in cl 1(d) of the table in s 14 of the GIPA Act does not connote information which may not be disclosed in any circumstances. The term captures information which is not to be disclosed in ordinary circumstances. … Evidence 1. The respondent relies on the affidavit evidence of Inspector Richard Mathew Mansley (Inspector Mansley) in regard the withheld information. 2. Inspector Mansley explained that he has 30 years of experience as a member of the New South Wales Police Force (NSWPF) and his evidence is based on that experience and the content of the entire event report E xxxxxx901. 3. In summary Inspector Mansley's evidence is as follows: 1. essential to the effective and efficient policing services, is for members of the community to feel comfortable in providing full and frank information to police officers and support staff about incidents of concern, suspected offending, or crimes. That information he said, is provided in the knowledge that the information reported to the NSWPF will remain confidential and will not expose the person to reprisals within the community; 2. the NSWPF also needs an open line of communication with the public to fulfil its policing obligations, including detecting and investigating offences and ensuring the safety of the community. Hence, the NSWPF relies to a significant extent on reports from community members (i.e. 'informants') about incidents of concern and offences underway or suspected. Reports are generally made via emergency '000' calls or calling the local police station. The information that is provided by community members this way can be decisive in allowing NSWPF to respond in a timely manner to prevent any offending or harm to the individuals involved; 3. his experience from investigating offences and speaking with witnesses and informants, is that the information members of the community provide to the NSWPF in these circumstances is given on the understanding that it will remain confidential unless it is used in court or for other law enforcement purposes; and 4. if information of this kind were to be released in response to a GIPA Act application, this would impact on the willingness of the community to provide information of this kind and this in turn would have a substantial impact on the ability of the NSWPF to gather information, undertake its investigative and community protection functions and thereby undermine public confidence in police. Consideration 1. Section 6 of the Police Act 1990 (NSW) (Police Act) sets out the mission and functions of the NSWPF and relevantly provides as follows: 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions— (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section— police services includes— (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) … (4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force. (5) … 1. I have carefully read the redacted information in the context of the information that has been disclosed to the applicant. 2. Public interest considerations against disclosure: I am satisfied that the respondent has established its claim of a public interest against the disclosure of the following redactions: 1. redactions marked T2(a) – pages 1, 3, 4, 7, 8, 9 and 11 – in many cases the disclosed information indicates that the redacted information relates to an informant. Having regard to the content of the redacted information and the material before the Tribunal, I am satisfied that a disclosure of the redacted information marked T2(a) could reasonably be expected to reveal (i.e. publicly disclose) the identity of an informant. I am also satisfied, based on the undisputed evidence of Inspector Mansley and the content of the redacted information, that a disclosure of the redacted information marked T2(a) could reasonably be expected to prejudice the future supply of information of this kind that facilitates the effective exercise of the respondent's functions under s 6 of the Police Act; 2. T2(b) – page 11 – in the written submissions of the respondent it is submitted that the public interest consideration against disclosure in item T2(b) applies to the redaction on page 11 of the event report – in my opinion, in this case, the content of the redacted information and the evidence of Inspector Mansley does not support such a finding. However, as noted below, I am satisfied that there are other public interest consideration against disclosure that do apply; 3. redactions marked T1(d), T1(f), T2(a) and T3(g) – pages 1, 3, 7, 8, 9 and 11 – the redacted information marked T1(d), T1(f), T2(a) and T3(g) is personal information about a child that was provided by an informant. Based on the content of the event report (including the redacted information) and the evidence of Inspector Mansley, I find that the circumstances in which the redacted information was provided, it was provided in confidence and a disclosure of the redacted information could reasonably be expected to: 1. prejudice the supply to the respondent of confidential information of this kind that facilitates the effective exercise of the respondent's functions under s 6 of the Police Act; 2. prejudice the effective exercise by the respondent of its functions under s 6 of the Police Act; 3. reveal (publicly disclose) the identity of an informant; and 4. disclose the personal information about a child and the disclosure would not be in the best interests of the child to have disclosed. As explained by Inspector Mansley, disclosing information about a child that has been provided to police or an informant in confidence would diminish the trust that individuals (including a child) and the community have in the NSWPF and make them reluctant to engage with the NSWPF in future concerning issues involving the safety and well being of children; 1. Redactions marked T1(d), T1(f) and T3(g) – pages 7, 8, 9 and 11 - Based on the content of the event report (including the redacted information) and the evidence of Inspector Mansley, I find that the circumstances in which the redacted information on pages 7, 8, 9 and 11 of the event report was provided, it was provided in confidence and disclosure of the information could reasonably be expected to: 1. prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions under s 6 of the Police Act; 2. prejudice the effective exercise by the respondent of her functions under s 6 of the Police Act; and 3. disclose the personal information about a child and the disclosure would not be in the best interests of the child to have disclosed; 1. Redactions marked T3(a) and T3(b) – page 8 – the deletions, as noted in the disclosed information, is the name of the person who took the child and her sisters home. That person is not a police officer nor has that person's identity been publicly revealed. Hence, I find that a disclosure of the name of this person could reasonably be expected to reveal the personal information of that person and a disclosure of that person's name to the applicant pursuant to a GIPA application would contravene s 18 of the Privacy and Personal Information Protection Act as it would not be a disclosure for the purpose it was provided to the respondent's police officers or for the purpose prescribed in s 18(1)(b) or (c) of the PPIP Act; 2. Redactions marked T1(f), T2(a) and T3(g) - page 8 - Based on the content of the event report (including the redacted information) and the evidence of Inspector Mansley, I find that the circumstances in which the redacted information was provided, it was provided in confidence and a disclosure of the information could reasonably be expected to: 1. prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions under s 6 of the Police Act; 2. prejudice the effective exercise by the respondent of her functions under s 6 of the Police Act, and 3. reveal (publicly disclose) the identity of an informant; and 4. disclose the personal information about a child and the disclosure would not be in the best interests of the child to have disclosed. 1. Redactions marked T1(d) and T1(f) – page 9 - Based on the content of the event report (including the redacted information) and the evidence of Inspector Mansley, I find that the circumstances in which the redacted information was provided, it was provided in confidence and disclosure of the information could reasonably be expected to: 1. prejudice the supply to the respondent of confidential information that facilitates the effective exercise of the respondent's functions under s 6 of the Police Act; and 2. prejudice the effective exercise by the respondent of her functions under s 6 of the Police Act; 1. Redactions marked T3(g) – page 9 and 10 - Based on the content of the event report (including the redacted information) and the evidence of Inspector Mansley, I find that the circumstances in which the redacted information was provided, it was provided in confidence, it is personal information about a child that the child had provided in confidence and for this reason a disclosure of the information would not be in the best interests of the child. 2. In Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [127], the Tribunal noted that it was difficult to see any circumstances in which the best interests of a child could be served by disclosure of their personal information in response to a GIPA access application: see also DYD v Commissioner of Police [2019] NSWCATAD 265 at [75]. Public interest considerations in favour of disclosure 1. The respondent recognises that the general public interest in favour of disclosure in s 12(1) of the GIPA Act applies. The respondent also accepts that the following public interest considerations in favour of disclosure apply: 1. the release of the redacted information could reasonably be expected to enhance the understanding of the performance of police functions; and 2. the redacted information includes personal information about the applicant, who is the person seeking disclosure of that information. 1. The Guardian ad Litem submitted that a disclosure of the redacted information could reasonably be expected to expose perpetrators of false accusations made against the applicant. In my opinion, there is nothing in the content of the redacted information to indicate that false accusations were made, let alone, false accusations made against the applicant. Hence, I have placed little if no weight on this public interest consideration in favour of disclosure. Where does the balance lie? 1. I note the s 5 presumption in favour of the redacted information, unless there is an overriding public interest against disclosure. 2. I also note the general public interest in favour of disclosure. However, in my opinion, little weight should be given to the other public interest considerations in favour of disclosure because: 1. a release of the redacted information in the event report could provide little or no enhanced understanding of the performance of the respondent's functions to that which has not already been disclosed to the applicant; and 2. the redacted information containing the applicant's personal information is mixed together with the personal information about a child, whose best interest is paramount in circumstances where that information has been provided by the child in confidence. 1. I have also taken into account the personal factors of the applicant, in particular, the applicant's relationship with the child and the applicant's motives for making his access application. As noted above, the Guardian ad Litem submitted that the applicant sought access to the information so that he could check its correctness against the information he has previously been provided access to. I have given these personal factors little, if any weight, as the information concerning the child is personal information of the child and it is not for the applicant to correct that information. There is also, in my view, a public interest in the identity of Police informants being kept confidential so that that the NSWPF can fulfill its function of preventing and the detection of crime as well as protecting members of the community from injury or harm. 2. In my opinion, in the case, the public interest considerations against disclosure should be given significant weight because one or more of the following apply to the redacted information: 1. the redacted information was provided to the respondent in the exercise of its core functions; 2. the redacted information was provided in connection with a complaint concerning the welfare and interest of a child; 3. the redacted information was provided in confidence by an informant, whose identity has not been publicly revealed; 4. the redacted information is sensitive personal information about a child which has not been publicly revealed; 5. a disclosure of the redacted information to the applicant would contravene the PPIP Act; and 6. a disclosure of the redacted information is likely to prejudice the supply of such information to the NSWP. 1. While I understand the applicant's interest in being provided with access to the deleted information, in my view, on the material before the Tribunal and the applicable law, I find that, in this case, the public interest considerations against disclosure of the redated information, on balance, substantially outweighs the public interest considerations in favour of disclosure. 2. Accordingly, I am satisfied that the respondent has established that the decision to refuse the applicant access to the redacted information in event report E xxxxxx901 is justified. On this basis, I find that the decision of the respondent to refuse the applicant access to the redacted information in the event report is the correct and preferable decision and should be affirmed. Notebook entry 1. The Constable's notebook book entries relevant to this application are on the last six lines on page 91 and the first seven lines on page 92. Against the handwritten entry on page 91 is the event number E xxxxxx901. 2. The redacted information is the name, address, date of birth and telephone number of the informant. The applicant has otherwise been granted access to the time and date of the Constable's attendance (Friday 13/09/19), the address of the attendance, the nature of the attendance, the name of the victim and the date of birth of the victim. 3. The respondent contends that the public interest consideration as against disclosure in item T2(a), T3(a) and T3(b) of the Table to s 14(2) of the GIPA Act apply and they there is also an overriding public interest against the disclosure of that information. 4. While the applicant might know the name of the victim, on the material before the Tribunal, this is not information that has been publicly revealed. 5. For the reasons set out above, I find that: 1. the redacted information in the notebook is also information that has been redacted in the abovementioned event report E xxxxxx901; 2. for the reasons set out above: 1. there is a general public interest in favour of disclosure which should be given considerable weight; 2. a disclosure of the redacted information in the notebook could reasonably be expected to: 1. reveal or tend to reveal the identity of an informant; 2. reveal the personal information of an informant; and 3. contravene s 18 of the PPIP Act; 1. the public interest considerations against disclosure should be given substantial weight; and 2. the public interest considerations against disclosure, on balance outweigh the public interest considerations in favour of disclosure. 1. Accordingly, I am satisfied that the respondent has established that the decision to refuse the applicant access to the redacted information in the Constable's notebook for 13 September 2019 is justified. On this basis, I find that the decision of the respondent to refuse the applicant access to the redacted information in the Constable's notebook for 13 September 2019 is the correct and preferable decision and should be affirmed. Conclusions 1. For the reasons set out above: 1. I am satisfied that the respondent has established that its decision: 1. not to deal with the information sought by the applicant in Parts 1 and 3 of his access application is justified; 2. that no further information is held in response to Part 2 of the applicant's access application is justified; 3. to refuse the applicant access to the redacted information in event report E xxxxxx901 and the redacted information in the Constable's notebook for 13 September 2019 is justified because there is an overriding public interest against the disclosure of that information; 4. that no further information is held in response to Part 5 of the applicant's access application is justified; 5. to refuse the applicant access to the telephone recordings made on 27 and 28 May 2019 is justified as there is a conclusively presumed overriding public interest against the disclosure of that information; 6. that no further information is held in response to Part 7 of the applicant's access application is justified; 7. that no information is held in response to Part 8 of the applicant's access application is justified; 1. based on my findings above, I find that the decision of the respondent concerning the information sought by the applicant in Parts 1, 2, 3, 5, 7 and 8 is the correct and preferable decision and should be affirmed. 1. I agree with the respondent that its decision not to deal with Part 4 of the applicant's access application is not justified and should be set aside. However, I am satisfied that the respondent has established that the correct and preferable decision concerning the information sought by the applicant in Part 4 of his access application is that no information is held in response that Part. 2. Hence, I order: 1. The decision of the respondent not to deal with the information sought by the applicant in Parts 1 and 3 of his access application is affirmed. 2. The decision of the respondent that no further information is held in response to Part 2 of the applicant's access application is affirmed. 3. The decision of the respondent to refuse to deal with Part 4 of the applicant's access application is set aside and in substitution thereof a decision is made that no information is held in response to Part 4 of the applicant's access application. 4. The decision of the respondent to refuse the applicant access to the redacted information in event report E xxxxxx901 and the redacted information in the Constable's notebook for 13 September 2019 is affirmed. 5. The decision of the respondent that no further information is held in response to Part 5 of the applicant's access application is affirmed. 6. The decision of the respondent to refuse the applicant access to the telephone recordings made on 27 and 28 May 2019 is affirmed. 7. The decision of the respondent that no further information is held in response to Part 7 of the applicant's access application is affirmed. 8. The decision of the respondent that no information is held in response to Part 8 of the applicant's access application is affirmed. ********** 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: 09 December 2022