Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 31 Hearing dates: On the papers Decision date: 24 March 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Isenberg, Senior member Decision: The decisions insofar as they relate to s.58(1)(f) of the GIPA Act are set aside. The decisions are remitted to the Respondent for reconsideration in accordance with the Tribunal's reasons for decision under s.63(3)(d) of the Administrative Decisions Review Act 1997. Catchwords: Decision to refuse to confirm or deny that information is held by the agency - overriding public interest against disclosure of information confirming or denying that fact Legislation Cited: Government Information (Public Access) Act 2009 Freedom of Information Act 1989 Police Act 1990 Police Integrity Commission Act 1996 Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Cth) Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Cases Cited: Ibrahim v Commissioner of Police, New South Wales Police Service [2003] NSWADT 220 Kline v Official Secretary to the Governor General [2013] HCA 52 Black v Hunter New England Local Health District [2011] NSWADT 295 Ibrahim v Commissioner of Police, New South Wales Police [2004] NSWADTAP 8 Fisher v NSW Police [2002] NSWADT 267 Saleam v Commissioner of Police, New South Wales Police Service [2002] NSWADT 40 Category: Principal judgment Parties: John Barrett and Lara Barrett (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Crown Solicitors Office (Respondent) File Number(s): 123193, 123194 reasons for decision History of the application 1On 14 July 2010 the Applicants applied to the Respondent for access to various items of government information under the Government Information (Public Access) Act 2009 ('GIPA Act'), including: All computer printed copies of all COPS events, intelligence reports, etc relating to John (and/or Lara Barrett) from 1 September 2009 ('item 6') Photocopies of the notebook, duty book, or any other written record of any person conducting any of the above checks (including the notebook number, duty book number, name, position and command they were attached to).('item 7') 2Initially Mr Barrett was informed that no documents were held in relation to item 6, but "on reflection", the Respondent's position before me was that Mr Barrett should not have been informed that no intelligence reports were held and that it should not have confirmed or denied whether intelligence reports were held in relation to Mr Barrett. 3Somewhat incongruously to its initial position in relation to Mr Barrett, in relation to Mrs Barrett, the Respondent from the outset did not confirm or deny whether any intelligence reports were held. 4In relation to item 7, access to the information sought was at first refused in full in respect of both Mr and Mrs Barrett. Subsequently, after the Applicants sought review by the Office of the Information Commissioner ('OIC'), the Respondent decided that it held no information under that item in respect of either applicant. Later, in respect of Mrs Barrett, when it became apparent that the Respondent's search for information in respect of other items had been incomplete, the Respondent changed its previous position in relation to item 7, and now refuses to confirm or deny whether any records are held under that item relating to Mrs Barrett. 5On 1 January 2014, the NSW Civil and Administrative Tribunal (NCAT) was established. On its establishment the ADT was abolished (see s.7 and cl.3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (the CAT Act). By reason of cl.7 of Schedule 1 of the CAT Act, the applications are taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with the provisions of the GIPA Act continuing to apply. 6As required by s 50 of the CAT Act I am satisfied that the issues for determination in this case can be adequately determined in the absence of the parties by considering the written submissions, statements and material provided by them. Relevant Legislation 7Section 58(1)(f) of the GIPA Act provides that an agency can decide an access application for government information by: deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. 8An overriding public interest against disclosure can only be justified if the agency can satisfy the public interest test in s.13 of the GIPA Act. (There was no contention that in this matter there is a conclusive presumption against disclosure under s.14(1) and Schedule 1, or 2 of the GIPA Act.) 9Under s.80(g) of the GIPA Act, a decision to refuse to confirm or deny that information is held by the agency is a reviewable decision. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s.105(1) of the GIPA Act. CONSIDERATION 10The Respondent was invited to make further confidential submissions in relation to the claim under s.58(1)(f) and these have been taken into account in coming to my decision. Mr Barrett 11While the Respondent seeks to resile from its initial decision in relation to item 6 in respect of Mr Barrett, it seems to me that once it had decided that it held no information it cannot now say that it neither confirms nor denies that it holds such information. To do so is nonsense. Further, there was no evidence before me that would suggest that there was any basis for the Respondent's purported change in position. Mrs Barrett 12The Respondent has now refused to confirm or deny whether it holds information in respect of items 6 and 7 in relation to Mrs Barrett. It submitted that it was not required to provide detailed reasons for refusing to confirm or deny that it holds information or intelligence reports and that to do so would defeat purpose of the section. Further, the Respondent submitted that it is only where the agency has refused to provide access is it required, pursuant to s.61 of the GIPA Act, to provide detailed reasons. The Respondent submitted that there is no provision in the GIPA Act for reasons to be given in the case of a decision pursuant to s.58(1)(f). It sought to draw a distinction between the previous situation under s.25(2)(b) of the Freedom of Information Act 1989 ('FOI Act') which provided that a decision to neither confirm nor deny the existence of a document was deemed to be a decision refusing to grant access. While this distinction may be accurate, the Respondent's submission overlooks the onus that it bears under s.105 of the Act. The Respondent acknowledged though that, the Tribunal must have regard to all relevant factual material in order to exercise all of the functions conferred on the administrator under the GIPA Act: s.63 of the Administrative Decisions Tribunal Act 1997 (now the Administrative Decisions Review Act 1997). 13The Information Commissioner's view was that, generally, it is preferable for agencies to give as many reasons as they can to help applicants understand the basis for the decision, taking into account circumstances where the information is of a sensitive nature. I agree. A fundamental object of the GIPA Act is to open government information to the public. That necessarily entails the need for adequate reasons if an agency asserts that it should not release information. There is no reason why this should not apply to a decision to neither confirm or deny whether it has information. I note the President's view, albeit in the context of the FOI Act, in Ibrahim v Commissioner of Police, New South Wales Police Service [2003] NSWADT 220 ('Ibrahim') at [9] that it is rare for the agency to take the approach which the Respondent has adopted in these matters. The Queensland Information Commissioner describes it as a position to be taken in 'rare and exceptional circumstances': Office of the Information Commissioner, Queensland, Guideline: Neither confirm nor deny the existence of documents, 23 October 2013. 14The Respondent submitted that s.58(1)(f) represents an exception to the pro-disclosure 'bias' in the GIPA Act in that it reflects that there are competing interests which need to be balanced within the statutory scheme. The Respondent referred me to the recent High Court decision of Kline v Official Secretary to the Governor General [2013] HCA 52, in relation to the Freedom of Information Act 1982 (Cth), at [37]: The FOI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure. 15I do not, however think this is new: the GIPA Act clearly anticipates a balancing process. Further, the case was discussing the general principle and did not discuss the Commonwealth (loosely described) "equivalent" of s.58(1((f), s.25 FOI Act (Cth). 16The Respondent's evidence in the substantive matter consisted of 4 open and one confidential statement by Senior Sergeant D. Brand, the Co-ordinator of the Respondent's Information Access Unit, and one open and one confidential statement by Detective Inspector S. Sheather, Manager, Administrative Officer Conduct Unit, Professional Standards Command. I have taken that evidence, to the extent relevant, into account for the purposes of this decision. 17Having said that, I should also observe that it seemed to me that the Respondent, in its confidential evidence and submissions, had adopted a very narrow view of s.107(2) of the GIPA Act. Had the matter been heard other than on the papers, some robust discussion may have occurred in relation to its claim for confidentially over much of its evidence and submissions. I note the discussion of s.107 in Black v Hunter New England Local Health District [2011] NSWADT 295. Ultimately the outcome has been unaffected, but I have for the present purposes, and in fairness to the Respondent, accepted the Respondent's claim of confidentiality in respect of its evidence and submissions for the purposes of the decision. 18Not for publication 19The Respondent submitted that there is an overriding public interest against disclosure of information confirming or denying that fact there is a public interest consideration against disclosure. Taking its general submissions to apply to this contention, it relied on Table 1(d), prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, and, additionally or in the alternative, that if information existed it would tend to reveal the identity of an informant or prejudice the future supply of information from an informant pursuant to Table 2(a). These submissions it seems to me more appropriately address the substantive issue, namely, if there were documents, the Respondent contends that there is an overriding a public interest against disclosure of the information in those documents. This is not the same as contending that there is an overriding a public interest against disclosure whether or not there is information held at all, which is a much more serious contention, and one which denies an applicant even the knowledge that information exits. I have observed that there was no contention that in this matter there is a conclusive presumption against disclosure under s.14(1) and Schedule 1, or 2 of the GIPA Act. In some respects it appears that the Respondent seeks to insert another level of restriction on an applicant's access, by asserting that an applicant should not even be made aware whether or not there is information which answers the access application. 20Not for publication 21Not for publication 22Not for publication 23The Tribunal needs, in each case, to be satisfied as to the public interest considerations against disclosure whether information is held, and then to consider if these displace the presumption in favour of disclosure. It does not necessarily follow that the existence or otherwise of intelligence/surveillance would be disclosed. Neither does it follow, that in every case, that public interest considerations against disclosure would outweigh those in favour of disclosure, although there may be many circumstances, such as those outlined by the Respondent in its confidential submissions, where it will. Notwithstanding the significant weight to be given to the protection of informants in many circumstances, as discussed in Fisher v NSW Police [2002] NSWADT 267, it does not necessarily follow that the identity of informants would be revealed. 24The Respondent referred me to the Federal Court decision in Secretary, Department of Health and Ageing v iNOVA Pharmaceuticals (Australia) Pty Ltd [2010] FCA 1442 in relation to an application under the Freedom of Information Act 1982 (Cth). There Emmett J considered the company would be able to make certain deductions from successive applications which would have commercial implications. It seems to me that this is another application of the 'mosaic effect' referred to in Saleam v Commissioner of Police, New South Wales Police Service [2002] NSWADT 40, to which the Respondent had referred in its open Reply. 25Not for publication 26Not for publication 27The agency bears the onus of justifying its determination: s.105 GIPA Act. I find that, in these matters, the Respondent has not discharged its onus under s.105 of the GIPA Act that there is an overriding public interest against disclosure of information confirming or denying that information is held by the Respondent. 28Consequently, I reject the Respondent's contention that to confirm or deny whether it holds information in relation to Mrs Barrett that there is an overriding public interest against disclosure of that fact. 29Not for publication DECISION 30The decisions under s.58(1)(f) of the GIPA Act are set aside. The decisions are remitted to the Respondent for reconsideration in accordance with the Tribunal's reasons for decision under s.63(3)(d) of the Administrative Decisions Review Act 1997. 31Pursuant to sections 64 and 66 of the Administrative Decisions Review Act 1997 paragraphs 18, 20, 21, 22, 25, 26 and 29 of these reasons are not be disclosed to the Applicant or the public and shall not be published. ********** 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: 24 March 2014