Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stedman v Commissioner of Police, NSW Police Force [2024] NSWCATAD 140 Hearing dates: 10 May 2024 Date of orders: 23 May 2024 Decision date: 23 May 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: K Robinson, Senior Member Decision: (1) The decision under review is set aside. (2) In substitution a decision is made that the Commissioner is to grant access to the body-worn video footage taken on 11 August 2023, except for information disclosing the identity of any third party who has not provided consent for the disclosure of their personal information, which is to be pixelated or otherwise obscured. (3) The order made on 10 May 2024 under s 64 of the Civil and Administrative Tribunal Act 2013 relating to the prohibition of publication or broadcast of the contents of exhibit CR3 is revoked. Catchwords: ADMINISTRATIVE REVIEW – access to government information – body-worn video footage – public interest test – public interest considerations in favour of disclosure not outweighed by public interest considerations against disclosure – whether pixelation is unduly onerous. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Surveillance Devices Act 2007 Cases Cited: Cheung v Commissioner of Police [2019] NSWCATAD 249 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Cousins v Ambulance Service of NSW [2014] NSWCATAD 48 FDY v Commissioner of Police [2021] NSWCATAD 285 FDY v Commissioner of Police, NSW Police Force [2022] NSWCATAP 367 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Morgan v Commissioner of Police [2021] NSWCATAD 173 Wojciechowska v Commissioner of Police [2021] NSWCATAD 284 YG and GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None Category: Principal judgment Parties: Gary Stedman (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: Applicant (Self-represented) J Curtin with T O'Connor (Respondent) File Number(s): 2023/00444282 Publication restriction: Nil REASONS FOR DECISION Background 1. Mr Stedman made an application to the Commissioner of Police for access to information under s 58 of the Government Information (Public Access) Act 2009 (the GIPA Act). He seeks body-worn video footage of an interaction between himself and officers of the NSW Police Force on 11 August 2023. 2. The Commissioner determined that it was not in the public interest under the GIPA Act to provide a copy of the footage to Mr Stedman because there was an overriding public interest against disclosure. The Commissioner decided it was in the public interest to provide view only access of the footage to Mr Stedman. 3. Mr Stedman seeks administrative review of the Commissioner's decision to refuse him a copy of the footage. Material before the Tribunal 1. Mr Stedman provided written submissions (exhibit A2) and also made oral submissions at the hearing on 10 May 2024. Mr Stedman's application for review attaching a review report of the Information and Privacy Commission was also before me (exhibit A1). 2. The Commissioner provided a bundle of documents (exhibit R1) including an affidavit of Senior Sergeant Petts of the NSW Police Force as well as written submissions. A further supplementary bundle was provided (exhibit R2). The Commissioner also made oral submissions at the hearing. Senior Sergeant Petts gave evidence and was crossed examined by Mr Stedman via audio visual link at the hearing. Confidential material 1. The Tribunal was provided with the footage at issue on a USB drive (exhibit CR3). This exhibit was made subject to a non-publication order at the hearing under s 64 of the Civil and Administrative Tribunal Act 2013. Applicant's case 1. Mr Stedman was self represented and seeks a copy of the footage. He would like to use the footage to prepare for current criminal proceedings and to consider civil proceedings as well as potential complaints against the NSW Police Force and its officers. He contended there is an overriding public interest 'for disclosure… in regards to police accountability'. He submitted that 'The general public should be made aware of police members overstepping their boundaries…' 2. Mr Stedman contends that his viewing of the footage at a police station one morning at 6am after a long period of time working was insufficient for those purposes. 3. Mr Stedman noted the majority of personal information within the footage was his. In relation to privacy concerns for the identities of third parties inside the club and carpark in the footage, Mr Stedman contends most people would expect to be recorded in such places and if there was a concern, relevant pixelation could address this concern. 4. Mr Stedman cited the cases of Morgan v Commissioner of Police [2021] NSWCATAD 173 and Wojciechowska v Commissioner of Police [2021] NSWCATAD 284 where the Tribunal set aside decisions to refuse disclosure of body-worn video footage. Respondent's case 1. The Commissioner acknowledged it bears the burden of establishing its decision is justified: see s 105 of the GIPA Act. 2. The Commissioner contends that there is an overriding public interest against disclosure of the footage applying the public interest test under s 13 of the GIPA Act because three public considerations against disclosure outweigh public interest considerations in favour of disclosure. Those three considerations are: 1. disclosure could reasonably be expected to reveal an individual's personal information (cl 3(a) of the Table to s 14 of the GIPA Act); 2. disclosure would contravene an information protection principle under privacy legislation (cl 3(b) of the Table to s 14 of the GIPA Act); and 3. disclosure could reasonably be expected to be a contravention of a provision of other legislation that prohibits the disclosure of information. The relevant legislation is the Surveillance Devices Act 2007 (the SD Act) which seeks to protect use of body-worn video footage recorded by police officers. 1. The Commissioner contends granting view only access to the footage appropriately alters the balance between the competing public interests, allowing disclosure in a form other than requested by Mr Stedman, as permitted by s 72(2)(d) of the GIPA Act, citing Cousins v Ambulance Service of NSW [2014] NSWCATAD 48. 2. The Commissioner submitted that any requirement to pixelate or otherwise modify the footage to obscure the identity of third parties in the footage would be unduly onerous, citing s 72(2)(a) of the GIPA Act. 3. In submissions the Commissioner noted the application under the GIPA Act could have been refused because Mr Stedman is currently a party to criminal proceedings and could seek access to the footage by subpoena in those proceedings. Role of the Tribunal Jurisdiction 1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review Act 1997 (the ADR Act). Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of reviewable decisions made by an agency. A decision to refuse to provide access to information in response to an access application is a reviewable decision (s 80 of the GIPA Act). 2. The Commissioner advised of the decision to grant view only access to the footage by letter dated 22 August 2023. Mr Stedman sought external review of the decision from the Information Commissioner on 10 October 2023 and the external review was completed on 24 November 2023. Mr Stedman applied for review by the Tribunal on 7 December 2023. 3. Though not in dispute, I am satisfied the Tribunal has jurisdiction to hear and determine this application for review. Administrative Review 1. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. 2. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act. Alternative subpoena pathway 1. The Commissioner noted the application under the GIPA Act could have been refused because Mr Stedman is currently a party to criminal proceedings and could seek access to the footage by subpoena in those proceedings under s 60 of the GIPA Act. The Tribunal was not requested to make such a determination and given the nature of the application, the passage of time since Mr Stedman made his application under the GIPA Act, the resources expended by the parties during the process to date, as well as taking into account the objects of the GIPA Act, it is appropriate for the Tribunal to progress this review. Legislative Framework 1. Section 3 of the GIPA Act sets out the object of the 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 GIPA Act provides that there is a presumption in favour of the disclosure of government information and a person who makes an access application has a legally enforceable right to be provided with access to the information, unless there is an overriding public interest against disclosure: see ss 5 and 9 of the GIPA Act. 2. There is a general public interest in favour of the disclosure of government information and public interest considerations in favour of disclosure are not limited in scope: s 12 of the GIPA Act. 3. There is an overriding public interest against disclosure of government information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: s 13 of the GIPA Act. 4. It is conclusively presumed that there is an overriding public interest against disclosure of the information specified in Sch 1 to the GIPA Act: s 14(1) of the GIPA Act. The considerations listed in the Table in s 14 of the GIPA Act are the only other considerations that may be taken into account in determining whether there is an overriding public interest against disclosure: s 14(2) of the GIPA Act. 5. Relevantly the Table in s 14 of the GIPA Act provides: … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects— (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure. 1. Section 15 of the GIPA Act sets out the principles that apply when determining whether there is an overriding public interest against disclosure: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. Section 40 of the SD Act creates an offence for certain use, communication or publication of protected information with a maximum penalty of two years imprisonment. The term protected information is defined in s 39 of the SD Act and includes any information obtained from the use, in accordance with s 50A, of body-worn video of police. 2. Section 40 of the SD Act provides for a number of exceptions to the offence, including s 40(5) which allows for protected information to be communicated or published by a police officer 'to any person' with the consent of the Commissioner, if satisfied ss 40(6) and (7) of the SD Act are met. Those requirements include being satisfied that it is necessary or desirable in the public interest for the information to be communicated or published and that the public interest outweighs any intrusion on the privacy of the person to whom the information relates or any other person who may be affected by its communication. 3. Section 50A of the SD Act relevantly provides: (1) The use of body-worn video by a police officer is in accordance with this section if— (a) the police officer is acting in the execution of his or her duty, and (b) the use of body-worn video is overt, and (c) if the police officer is recording a private conversation, the police officer is in uniform or has provided evidence that he or she is a police officer to each party to the private conversation. (2) Without limiting the ways in which the use of body-worn video may be overt for the purposes of subsection (1)(b), the use of body-worn video is overt once the police officer informs the person who is to be recorded of the use of body-worn video by the police officer. (3) The use of body-worn video by a police officer is also in accordance with this section if— (a) it is inadvertent or unexpected, or (b) it is incidental to the use of body-worn video by the police officer in the circumstances set out in subsection (1). Consideration Issue for determination 1. I accept the submission of the Commissioner that the correct approach to be adopted by the Tribunal is the two step process outlined in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, at [24] – [25], relevantly that: Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused. … 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… 1. There being no conclusive presumption of an overriding public interest against disclosure of the footage in this review because s 40 of the SD Act is not included in the list of legislative secrecy provisions in cl 1 of Sch 1 to the GIPA Act or elsewhere in Sch 1, it is instead necessary to apply the public interest test to the footage to determine whether an overriding public interest against disclosure of the footage exists. An overriding public interest against disclosure of the footage will exist if the public interest considerations against disclosure of the footage outweigh the public interest considerations in favour of disclosure of the footage: see s 13 of the GIPA Act. 2. As noted in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [94]: Ultimately, the balancing of these competing interests is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation. Public interest considerations in favour of disclosure 1. The Commissioner identified three public interest considerations in favour of disclosure in the decision of 23 August 2023, namely: 1. The statutory presumption in favour of the disclosure of government information; 2. The general right of the public to have access to government information held by agencies; and 3. The information requested includes Mr Stedman's personal information. 1. I note that the footage contains extensive personal information of Mr Stedman, it is essentially video footage of Mr Stedman interacting with police officers including his arrest and release over about 30 minutes in a licensed premises and its carpark. 2. Mr Stedman has expressed a broader intention in seeking access to the footage. Mr Stedman has described a public interest in members of the public being aware of the conduct of police in the exercise of their functions. I am satisfied this identified public interest goes beyond a mere personal interest of Mr Stedman in the conduct of officers of the NSW Police Force. I consider that a disclosure of the footage could reasonably be expected to inform the public about the operations of the Commissioner about the practices of police officers in the use of body-worn video and their interaction with members of the public in the exercise of their functions. I therefore consider this to be a public interest consideration in favour of disclosure. Public interest considerations against disclosure Personal information and privacy 1. The footage contains images of members of the public who were present within the licensed premises and the carpark during the interaction between Mr Stedman and police officers, mostly at the very beginning and end of the interaction. I accept that the footage contains personal information of third parties because the footage of those members of the public could allow others to reasonably ascertain their identities. There is no evidence any of those third parties provided consent to the release of their personal information or were aware their personal information in the footage had potential to be disclosed. 2. Therefore I am satisfied public interest considerations against disclosure under cl 3 of the Table to s 14 of the GIPA Act identified by the Commissioner apply in this review. Secrecy 1. I accept s 40 of the SD Act is a prohibition for the purposes of a public interest consideration against disclosure under cl 6 of the Table to s 14 of the GIPA Act and that providing Mr Stedman with a copy of the footage could reasonably be expected to contravene that provision. 2. The Commissioner submitted that considerable weight should be given to this public interest consideration against disclosure citing Votienko t/as Access Party Hire v Zurich Australian Insurance Limited [2016] NSWSC 324 and the Tribunal's decision in Cheung. 3. As was considered by the Tribunal in Wojciechowska at [208], the decision in Votienko is of 'little, if any, relevance' to the issues for resolution in this review because of the difference in facts, forum and context. 4. In Cheung, view only access to body-worn video footage about a random breath test had been granted. The Commissioner in that matter, as in this matter, had determined to provide view only access on the grounds that there was an overriding public interest against disclosure of a copy of that footage. The sole public interest consideration against disclosure relied on in Cheung was s 40 of the SD Act. The Tribunal relevantly said (at [43]): While use of body-worn video is overt unlike the use of other surveillance devices, it is clear that Parliament has included information obtained from the use of body-worn video by a police officer within the provisions concerning protected information…The overwhelming policy considerations behind such a prohibition relate to the integrity of investigations and other law enforcement activities and the privacy of the individuals concerned. These are very important considerations and the limited nature of the exceptions to the prohibition demonstrates an intention to strictly control information obtained through a surveillance device, including body-worn video. 1. The review report of the Information Commissioner also cited FDY v Commissioner of Police [2021] NSWCATAD 285 in relation to applying considerable weight to this consideration. I note FDY was upheld by FDY v Commissioner of Police, NSW Police Force [2022] NSWCATAP 367. 2. I agree with the Commissioner's submission that considerable weight should be given to this public interest consideration against disclosure. The public interest test Pixelation or other equivalent treatment to obscure personal information 1. The Commissioner contends that any requirement to pixelate or otherwise modify the footage would be unduly onerous citing s 72(2)(a) of the GIPA Act. However, the Commissioner provided no evidence in relation to pixelation such as the time, cost or resources needed for pixelation to occur, submitting any further action required of the Commissioner would in itself be onerous. The Commissioner bears the onus and I am not satisfied on the material before me that a requirement to pixelate or otherwise obscure the relevant personal information of third parties in the footage would be onerous for the purposes of s 72 of the GIPA Act. 2. Having viewed the footage, the personal information of third parties is not extensive within the footage. I consider the issue of the disclosure of third parties' personal information can be balanced by pixelating or otherwise obscuring the identity of members of the public in the footage as requested by Mr Stedman. This would protect the identity of those third parties whilst promoting the objects of the GIPA Act, the stated Parliamentary intention for the GIPA Act as well as the general public interest in favour of disclosure of government information (ss 3 and 12 of the GIPA Act). Therefore, on this basis, the two public interest considerations against disclosure relating to privacy under cl 3 of the Table to s 14 of the GIPA Act of themselves do not outweigh the public interest considerations in favour of disclosure. Determining the balance 1. As noted above, there is no conclusive presumption against disclosure to apply in this review. This review is a balancing exercise. While the secrecy interest identified is a public interest consideration against disclosure requiring considerable weight to be applied during the balancing exercise, it is not a determinative consideration. Added to that consideration, as discussed above (at [46]), the other public interest considerations against disclosure which relate to privacy can be mitigated by pixelation or obscuring the identities of members of the public, or relate to the personal information of Mr Stedman. 2. Those identified public interest considerations against disclosure are to be weighed against the identified public interest considerations in favour of disclosure, mindful of s 15 of the GIPA Act. 3. The several public interest considerations in favour of disclosure identified above (at [35] – [37]) are to be taken into account in the balancing exercise of the public interest test. Further, in my view, the public interest consideration in favour of disclosure of the opportunity for members of the public to be made aware of the conduct of police officers in the exercise of their functions should also be given considerable weight, particularly noting the object of the GIPA Act. 4. Given all of the above, having followed the structured two step process outlined in Camilleri, I am not satisfied that the Commissioner, who bears the onus, has established that the public interest considerations against the disclosure of the information recorded in the footage (excluding the personal information of a person other than Mr Stedman) on balance, outweigh the public interest considerations in favour of disclosure. 5. I am therefore not satisfied that the Commissioner has established that there is an overriding public interest against the disclosure of the footage in the form requested by Mr Stedman, namely disclosing a copy of the footage with the personal information of third parties pixelated or otherwise obscured. 6. It follows that the decision of the Commissioner to provide Mr Stedman with view only access to the footage is not the correct and preferable decision. Instead, the correct and preferable decision is for the Commissioner to provide Mr Stedman with a copy of the footage with the personal information of third parties pixelated or otherwise obscured. Order 1. The decision under review is set aside. 2. In substitution a decision is made that the Commissioner is to grant access to the body-worn video footage taken on 11 August 2023, except for information disclosing the identity of any third party who has not provided consent for the disclosure of their personal information, which is to be pixelated or otherwise obscured. 3. The order made on 10 May 2024 under s 64 of the Civil and Administrative Tribunal Act 2013 relating to the prohibition of publication or broadcast of the contents of exhibit CR3 is revoked. ********** 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: 23 May 2024