Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DEZ v Commissioner of Police, NSW Police Force [2015] NSWCATAD 15 Hearing dates: 26 and 27 November 2014 Date of orders: 03 February 2015 Decision date: 03 February 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Isenberg, Senior Member Decision: (1) The decision under review is affirmed. (2) In accordance with s64 (1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the applicant is prohibited. (3) In accordance with s64 (1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the evidence contained in Exhibit R3 is prohibited. Catchwords: Government information – police - conclusive presumption of overriding public interest against disclosure – documents affecting law enforcement – prejudice to functions – prejudice to law enforcement Legislation Cited: Government Information (Public Access) Act 2009 Freedom of Information Act 1989 Police Act 1990 Law Enforcement (Powers and Responsibilities) Act 2002 Law Enforcement (Powers and Responsibilities) Regulation 2005 Cases Cited: Flack v Commissioner of Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Hurst v Wagga Wagga City Council [2011] NSWADT 307 RT v Commissioner of Police, NSW Police [2005] NSWADT 270 Category: Principal judgment Parties: DEZ (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Public Interest Advocacy Centre (Applicant) Sparke Helmore (Respondent) File Number(s): 133115, 133198 and 1410060 Publication restriction: See orders (2) and (3). reasons for decision BACKGROUND 1. DEZ, the applicant, made a number of requests to the Respondent to provide access to information, pursuant to the Government Information (Public Access) Act 2009 ('GIPA Act'). 2. The Respondent provided the applicant with some material in response to his applications. Other material was provided in redacted form and some was not provided at all. (Some information could not be located but the applicant accepts that the Respondent has considered all relevant material.) 3. Following reconsideration, the remaining material, about which the Respondent continued to claim an overriding public interest against disclosure was contained in 14 documents, most of which were COPS event reports, and were previously released to the applicant in part. Access to two of the documents was refused in full: NSW Police Suspect Target Management Plan ('STMP') with respect to the applicant and Target Action Plan with respect to the applicant ('the applicant's STMP documents'). At the hearing the Respondent informed the Tribunal that only 8 documents remained in contention (with the balance having been released in full to the applicant). These are discussed below. 4. Subsequently, the applicant applied for: * A copy of the current [STMP]; * Copies of any policy statement, internal guidance or memorandum in relation to the [STMP], which detail the following: the criteria used by NSW Police to decide whether to target a person under the [STMP]; the procedure for removing a person as a target under the [STMP]; how a person's placement of the [STMP] is reviewed. 1. Nine documents ('the generic STMP documents') were identified as falling within the applicant's request: * Police Suspect Target Management Plan II * Guide for Intelligence Officers, Suspect Target Management Plan II, Intel Note, Issue 1 * Guide for Crime Coordinators, Suspect Target Management Plan II, Intel Note, Issue 2 * Guide for Case Officers, Suspect Target Management Plan II, Intel Note, Issue 3 * Guide for Case Officers, Suspect Target Management Plan II Intel Note, Issue 5 * Tips & Tricks, COPS Newsletter, Issue 75 * Guide for Case Changeover Guidelines, Suspect Target Management Plan II, Intel Note, Issue 9 * Suspect Target Management Plan (Power Point Presentation) * Suspect Target Management Plan II Training Program 1. The respondent refused access to all the documents, relying on the conclusive presumption set out in cl. 7(c) of Sch 1 to the GIPA Act. It was claimed: the documents are 'created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence'; and it is 'conclusively presumed that there is an overriding public interest against disclosure' of documents in this category'. EVIDENCE 1. I carefully read the documents in issue, which were provided to the Tribunal on a confidential basis. 2. The applicant tendered an affidavit by Sarah Bassiuoni, a solicitor employed by the Public Interest Advocacy Centre, which contained a number annexures. The applicant also tendered 2 reports of the Ombudsman in relation to the management of complaints against the police, dated March and September 2002. 3. The Respondent relied on the affidavit and evidence of Lesley Honeyman, the Director of Intelligence for the NSWPF. Ms Honeyman also provided a confidential affidavit. I formed the view, after having read the material in question and Ms Honeyman's confidential affidavit, that it was necessary to receive her evidence and hear argument in the absence of the public, including the applicant and his representatives: s.107 of the GIPA Act. The applicant accepted that, to the extent evidence and submissions would disclose the information the subject of the application, the Tribunal would receive that evidence and submissions and hear that oral argument in private session, and I was satisfied that this was the case. 4. The applicant submitted that to the extent any of the confidential evidence was "adverse to [DEZ] interests", and where he has not had the opportunity to adequately respond, "the probative force of [that evidence] must be particularly cogent if that [evidence] is to be acted upon": Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, at p274. The applicant's counsel supplied the Tribunal with a list of issues and questions she suggested I might explore with Ms Honeyman in the closed session. At the conclusion Ms Honeyman's evidence I invited her to comment in relation to those matters specifically and I informed the applicant's counsel that this had occurred. THE GENERIC STMP DOCUMENTS 1. Because of the generic nature of the final application it is appropriate to deal with that matter first. 2. The Respondent relied on the conclusive presumption of overriding public interest against disclosure set out in cl.7(c) of Sch 1 to the GIPA Act which provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents: … (c ) a document created by the State Crime Command of the NSW Police Force in the exercise of its functions concerning the collection, analysis or dissemination of intelligence. 1. In the alternative, the Respondent submitted that the documents in issue should not be released on the basis that there is an overriding public interest against disclosure. Does the conclusive presumption apply? 1. There was no dispute that cl.7(c) of Sch 1 to the GIPA Act has the following elements: the information must be contained in documents created by the State Crime Command of the NSW Police Force ('SCC'); and those documents must have been created in the exercise of the SCC's functions concerning the collection, analysis or dissemination of intelligence. 1. The Applicant submitted that cl.7(c) should be read narrowly. The Respondent submitted that general words used in the clause "a document created by the SCC... in the exercise of its functions" should be given their plain and ordinary meaning: Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 per Dixon J at 647. Was the information contained in documents created by the SCC? 1. The phrase "State Crime Command" (SCC) is not defined in the GIPA Act or, as far as I could see, in any other legislation. The applicant referred to the website of the NSWPF which states: The SCC is made up of 12 squads headed by a Squad Commander, and a number of support units. Each squad specialises in particular types of crime. The support, co-ordination and management of all of the Squads is the responsibility of the Commander of the SCC, who is assisted by [five] Directorates and Units within the Command. 1. The Intelligence Directorate is one of those directorates. In relation to the Intelligence Directorate, the same website states: The Director Intelligence, SCC is the Corporate Spokesperson for Intelligence in the NSW Police Force and is responsible for the professional development and capability of intelligence with the NSW Police Force. The Director is also responsible for all intelligence functions within SCC and is the central coordination point for the provision of high level advice on crime to the SCC Commander, NSW Police executive and external agencies. 1. Ms Honeyman's open evidence was to the effect that the "Suspect Target Management Plan II" (STMP II) was created by the Intelligence Coordination Unit (a predecessor of the Intelligence Directorate), which was a unit in the SCC of the NSWPF. STMP II is a refinement on the original version, the STMP. 2. [Not for publication] 3. I accept that the STMP II was created by the SCC. 4. Ms Honeyman's open evidence was also to the effect that a number of guidance materials or implementation manuals have been developed by the Intelligence Coordination Unit or the Intelligence Directorate to support the implementation of the intelligence function of the STMP II. All the other documents identified as falling within the applicant's request were, on their face, created by the Intelligence Coordination Unit of the SCC. 5. I agree with the Respondent's submissions that the clause contains no ambiguity; it clearly sets out the circumstances in which Parliament has decided that a conclusive presumption as to the existence of an overriding public interest against disclosure should apply. Were the documents created in the exercise of the SCC's functions concerning the collection, analysis or dissemination of intelligence? 1. Ms Honeyman's evidence was that the SCC is the lead agency for criminal investigation in the NSWPF. In her open affidavit she wrote that the purpose of intelligence in the NSWPF is to support and improve decision-making by providing timely and relevant advice to decision-makers. Intelligence is the product of a process which involves the collection, collation and analysis of relevant information and the provision of the outputs from that process to those who need it in the time frames in which they can use it. 2. In her evidence Ms Honeyman said the current use of the STMP was to identify and monitor recidivists. She agreed that because the process was objective it should result in fewer complaints against NSWPF, but this was not the purpose of the STMP, although this was one outcome. She agreed that if that were the purpose of the STMP, that was not an intelligence function. I find that the purpose of the STMP is to target recidivists; fewer complaints against NSWPF is a welcome by-product but not an end in itself. 3. Ms Honeyman was referred to the Ombudsman's report of September 2002 which recorded that Police responsible for reviewing the STMP had told the Ombudsman that the plan was designed to protect individual officers from allegations. The portion of the report to which she was referred however was somewhat selective; the report acknowledged that the STMP initiative was seen as important factor in police attempts to reduce crime by targeting the criminal activity of repeat offenders. The Police submitted to the Ombudsman that the development of the strategy was expected to promote more effective, more consistent and fairer policing interventions in relation to repeat offending. That submission was consistent with Ms Honeyman's evidence. 4. [Not for publication] 5. Ms Honeyman was also referred to the tendered affidavit of Ms Bassiuoni, One annexed newspaper article (annexure SB1) referred to the STMP and that officers were being provided with lists of people on bail who were considered to be at risk of re-offending and being told to watch them and wait for them to do something wrong. Ms Honeyman said that the function of the STMP was to identify, monitor and target recidivists, and this is the substance of the article, albeit presented in a sensationalist fashion. 6. The applicant's submissions referred extensively to Ms Bassiuoni's affidavit and her internet searches, the product of which was annexed to her affidavit. One referred to a seminar presentation in 2005 by a police officer and a former police officer - neither of whom appear to have any links with or connection to the SCC - at a conference organised by the Australian Institute of Criminology and the Crime Prevention Division of the NSW Attorney-General's Department. I attach very little weight to that information because it refers to the STMP only in a single entry in a session focused on youth crime, referring in particular to Police Citizens Youth Clubs and initiatives with young offenders. No conclusion whatever about 'targeted programming" or "intelligence-led Policing" can be drawn from pages 12 and 25 to which I was specifically referred. 7. The applicant also sought to draw adverse inferences from the STMP being included under the heading "Other Operational Policing Strategies" in a submission made by the NSW Government to an 'Inquiry into Redfern and Waterloo' (Annexure SB3). In fact, consistent with Ms Honeyman's evidence, the STMP was described as "a co-ordinated state-wide strategy where repeat offenders are identified as high ... or medium risk offenders". Some other annexures relied on did not refer to the STMP at all. 8. I agree with the applicant's observation from Ms Bassiuoni's internet searches that many parts of the NSWPF are involved in using the STMP. A document aimed at monitoring recidivists would be of no utility if that were not so. 9. I also agree with the applicant's submission that it seems likely that information was sought from persons outside the SCC in creating the STMP and related documents, although I do not agree with the applicant's characterization of that information as 'advice'. It is the nature of intelligence gathering that there are a variety of sources. That does not detract from the creation of the documents by the SCC in its intelligence function. 10. The applicant submitted that the document titles provide evidence that not all of the documents were created as part of the SCC's "functions concerning the collection, analysis or dissemination of intelligence": eg "Guide for Crime Coordinators" and "Guide for Case Officers", "Tips and Tricks", "Guide for Case Changeover Guidelines", the PowerPoint presentation and the "Training Program". 11. [Not for publication] 12. I agree that, as the applicant submitted, not everything done by the Intelligence Directorate will necessarily be done as part of its intelligence functions. However, I am satisfied that the documents in question were created in the exercise of the SCC's functions concerning the collection, analysis or dissemination of intelligence. 13. I therefore find that in relation to the generic STMP documents that the conclusive presumption against disclosure set out in cl.7(c) of Sch 1 to the GIPA Act applies. Public interest considerations against disclosure 1. Having come to the above view in relation to the conclusive presumption it was not necessary for me to consider the Respondent's alternative submission in relation to public interest considerations against disclosure. THE APPLICANT'S STMP DOCUMENTS 1. The remaining applicant's STMP documents in respect of which the Respondent claimed on overriding public interest against disclosure fell into only 2 categories: COPS Events (including one accompanying notebook entry) and the STMP in relation to the applicant and the Target Action Plan in respect of the applicant. 2. The applicant's counsel informed the Tribunal that she did not press for release of information which was personal information of another person. The Respondent clarified that that was now the only basis it refused access to that information: Tabs 2, 3, 6, 9. Consequently, the only matters in issue were: * COPS Event E44341633 and notebook (Tab 5) * STMP with respect to the applicant (Tab 10) and Target Action Plan with respect to the applicant (Tab 11) * COPS Event 47901032 (Tab 14) 1. Ms Honeyman, in her evidence, explained the applicant's STMP (Tab 10) and the Target Action Plan (Tab 11). 2. [Not for publication] 3. As to the two COPS events (Tabs 5 and 14), the redacted portions refer to intelligence reports in respect of the applicant, not directly related to the subject of the COPS event. Relevant Legislation 1. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure.' 2. Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information. 3. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. 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 interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure 1. The public interest considerations against disclosure are set out in a Table in s.14 of the GIPA Act ('the Table'). 2. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (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. 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). In order to determine whether the respondent has met the burden of proof, it is necessary to apply the test prescribed by s.13 of the GIPA Act: see Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 ('Camilleri') at [24]-[25]. Consideration 1. In deciding whether to release information, the Tribunal must apply the public interest test and decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s 13 of the GIPA Act requires the Tribunal to undertake the following steps: * identify the relevant public interest considerations in favour of disclosure * identify the relevant public interest considerations against disclosure. * determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies. Public interest considerations in favour of disclosure 1. Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. 2. Other than the statutory presumption in favour of the disclosure of government information, the general right of the public to have access to government information, and the general public interest in favour of disclosing government information to an applicant, the applicant submitted that there were a number of considerations in favour of disclosure. 3. The applicant submitted that the information is DEZ personal information, and in this regard, I was referred to Black v Hunter New England Local Health District (No 2) [2012] NSWADT 235 at [72]-[73] where it was held that "considerable weight" should be given to this factor in favour of disclosure. 4. The applicant also submitted that in releasing the information there would be an increase in transparency, both in terms of the decision-making processes of the NSWPF. Further, there would be a greater ability to hold the NSWPF accountable for its actions in relation to DEZ, particularly in circumstances where he is a vulnerable person and where the actions of the NSWPF were invasive. Disclosure of the information to DEZ could reasonably be expected to inform him about the operations of the NSWPF and, in particular, its policies and practices for dealing with members of the public. 5. In Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195, the Administrative Decisions Tribunal (the ADT) held that public interest considerations in favour of accountability and transparency were "strong": at [197]-[198]. I agree the nature of the GIPA Act supports this as a general proposition, but each matter is different. 6. The applicant referred extensively to Law Enforcement (Powers and Responsibilities) Act 2002 ('LEPRA') and the Law Enforcement (Powers and Responsibilities) Regulation 2005 ('LEPRR'), and claimed that he is a "vulnerable person" because at the time the records in issue were created, he was a minor and was considered a vulnerable person for the purposes of reg 24 of the LEPRR. DEZ is from a non-English speaking background and during much of the time was a subject of the STMP, he was under 18. As the Respondent pointed out LEPRA and LEPRR create obligations with respect to vulnerable persons in specific circumstances, namely the detention, investigation and questioning of a vulnerable person who is under arrest for an offence: see Part 9 and s.111 of LEPRA. The Respondent submitted that none of the records in issue relates to NSWPF conduct towards the Applicant during the detention, investigation and questioning of the Applicant after he had been arrested for an offence. From my perusal of the material, I agree that this is the case. I therefore disregard the applicant's submission in this regard. 7. The applicant claimed that the actions taken by the NSWPF were highly invasive of his person and property and involved the use of coercive powers, and that it is in the public interest for the NSWPF to be held accountable for invasive and coercive conduct, and for the policies and procedures in relation to, and oversight of, invasive and coercive conduct to be transparent. During the period from approximately 3 February 2010 to about 27 September 2013, while he was a subject of the STMP, DEZ was said to have been regularly stopped, searched and/or given a move on order by Police. Police officers were also said to have entered onto his property on a regular basis during this time. Granting DEZ access to the information would increase the accountability and transparency of the actions of members of the NSWPF, particularly as those actions relate to the targeting of members of the public such as DEZ. Enhancement of government accountability and transparency are important parts of the aims of the GIPA Act: GIPA Act, s.3(1). 8. The Respondent submitted that the records should be considered in the wider context of the applicant's criminal history, a copy of which (for the period 2007 to 2012) was tendered (Exhibit R3). Transparency and accountability – "over-policing" on the basis of ethnicity 1. The applicant asserted that DEZ belongs to an ethnic group about which there has been a perception of over-policing. The Respondent provided the applicant at the hearing with a letter dated 27 November 2014 which stated : 1. To assist the Applicant in NSW Civil and Administrative Tribunal proceedings 133115, 133198 and 1410060, the NSW Police Force (NSWPF) confirms that none of the documents listed in paragraph 2 make, or permit a person's race, ethnicity, gender, sex, or system of belief to be a criterion or relevant factor in any of the following processes: (a) the assessment of the risk a person poses to the community or to the NSWPF, or (b) the placement of a person on the Suspect Targeting Management Plan (STMP), or (c) the implementation of the STMP with respect to that person." 1. On 1 December 2014 the Respondent supplemented its earlier letter. It referred specifically to the STMP Plan (and Profile) and Target Action Plan with respect to the applicant and repeated the assurance of the earlier letter with respect to those documents. In relation to the Profile it was noted that the applicant's description referred to him as "Middle Eastern" but observed that that description was consistent with that used in respect of the applicant in at least one other document already released to the applicant. 2. From the confidential evidence of Ms Honeyman and my reading of the STMP I was confident that the terms of the Respondent's letters were accurate. 3. The applicant acknowledged that, in those circumstances, the argument that the STMP or the applicant's STMP took ethnicity into account fell away. Public interest considerations against disclosure 1. The general public interest considerations against disclosure are limited to those set out in the Table in s.14. 2. In Commissioner of Police v Camilleri [2012] NSWADTAP 19 ('Camilleri') the Appeal Panel considered (at [26]) that s.14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government". 3. To raise these as relevant considerations in the application of the public interest test the respondent must establish that the disclosure of the information "... could reasonably be expected to have .... the effect" outlined in the Table. There must be "more than a mere risk" that the relevant prejudice will occur: Roy v Commissioner of Police NSW Police Force [2012] NSWADT 120 at [65]. 4. The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police [2011] NSWADT 286 (at [40] - [41]), ('Flack'), adopting the approach taken in Leech v Sydney Water Corporation [2010] NSWADT 298: 25. The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC. 1. Because the respondent bears the onus of justifying its decision to refuse the applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure. 2. The respondent submitted that the following public interest considerations against disclosure are relevant: * disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions: cl.1(f) of the Table * disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law: cl. 2(b) of the Table Each is discussed below. Disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions: cl.1(f) of the Table 1. The Respondent's core function is to provide police services for the State, which includes the prevention and detection of crime: ss.6(2) and (3)(a) of the Police Act 1990. Part of the Respondent's mission is to work with the community to reduce violence, crime and fear: s.6(1) of the Police Act 1990. 2. The Respondent submitted that the Applicant's STMP and Target Action Plan reveal substantial parts of the STMP II initiative. If parts of the STMP II were revealed to the Applicant, and any subsequent person who may apply for the same information under the GIPA Act, the effectiveness of the initiative would be lessened. Ms Honeyman's Confidential Statement provided evidence of risks associated with the release of an STMP. 3. As to the two COPS events (Tabs 5 and 14), the redacted portions refer to intelligence reports in respect of the applicant, not directly related to the subject of the COPS event. 4. [Not for publication] 5. To release the information, it was submitted, would prejudice the Respondent's ability to effectively prevent or detect crime and reduce crime and violence, especially as the STMP targets repeat offenders. 6. The Respondent submitted that there is a significant public interest in ensuring that the NSWPF is not prejudiced nor hindered in effectively exercising its crucial functions to protect persons and property and that this public interest consideration against disclosure should be accorded great weight. The applicant contended that it is possible to conceive of some prejudice or hindrance being caused to the exercise of functions by the NSWPF without amounting to prejudice to the effective exercise of its functions. 7. On the basis of Ms Honeyman's confidential evidence I find that disclosure of the information could reasonably be expected to prejudice the effective exercise of the functions of the NSWPF. Further, I am reasonably satisfied that there is "more than a mere risk" of such prejudice. Disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law: cl.2(b) of the Table 1. The Respondent submitted that the Tribunal should give considerable weight to this public interest consideration against disclosure because of the significant prejudice which the Respondent will suffer in its ability to prevent, detect, investigate or enforce the law. 2. The Respondent submitted that there is a public interest in law enforcement agencies being able to maintain the integrity of their methods for investigating, detecting contraventions of or enforcing the law. I was referred to UC v Commissioner of Police, NSW Police [2005] NSWADT 272 the Tribunal considered a similarly worded exemption in cl.4(1)(e) of Schedule 1 of the Freedom of Information Act 1982 (FOI Act) where the Tribunal observed at [33]: ... The exemption is designed to preserve the integrity of intelligence gathering as a method of preventing contraventions or possible contraventions of the law. The information contained in an exempt document might serve to disclose or confirm the lawful Police methods or procedures for preventing or detecting possible contraventions of the law. 1. Further, in RT v Commissioner of Police, NSW Police [2005] NSWADT 270 ('RT') at [35] to [36] the Tribunal stated: 35. ... The exemption operates to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods: Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231. 1. The Respondent submitted that the same considerations should apply with respect to the application of the public interest consideration against disclosure in cl.2(b). The STMP II is not commonplace or well known; the STMP II, or documents created as a result of utilising STMP II, are not publicly available or provided to offenders on the program. 2. The applicant submitted that the reference to RT is not precisely on point, given the reference to and reliance on the protection of "the ongoing effectiveness of the methods adopted by the police"; and, it is not prejudice to the NSWPF's ability in this regard which may be taken into account. While I accept that there has been some change in the wording in the GIPA Act to the similar provision in the FOI Act, I do not agree with the applicant's point of distinction. If anything, the provision under the GIPA Act has broadened. 3. [Not for publication] 4. The Applicant's STMP documents contain substantial references to various parts of the STMP II. Therefore, disclosure of the Applicant's STMP documents would disclose or confirm a lawful method or procedure that developed by NSWPF SCC to prevent possible contraventions of the law. 5. I find that the evidence supports the respondent's contention that disclosure of the information could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. Further, I am reasonably satisfied that there is "more than a mere risk" of such prejudice. Balancing the public interest considerations 1. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the Act, paying due regard to the principles in s.16 of the GIPA Act. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 ('Hurst') at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s.5 GIPA Act. 2. The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of 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: Hurst at [70]. 3. I agree that the general consideration in favour in s.12 should be accorded significant weight, consistent with the object of the GIPA Act and that the public interest considerations in favour of accountability and transparency addressed by the applicant are strong. 4. The respondent submitted, and I agree, that disclosure of information which could reasonably be expected to prejudice the effective exercise of its functions and disclosure of information which could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law outweighs the public interest in favour of releasing the applicant's STMP documents. 5. I find that the respondent has discharged its onus and find that, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure in respect of that information. DECISION 1. The decision under review is affirmed. 2. In accordance with s64 (1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the applicant is prohibited. 3. In accordance with s64 (1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the evidence contained in Exhibit R3 is prohibited. ********** 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 Amendments 17 March 2015 - 17 March 2015 Amendment under s63(1) Civil and Administrative Tribunal Act 2013 – paragraph 57 addition of text 09 October 2017 - Orders (2) and (3) added, text from paragraph 56 removed and the Applicant anonymised. 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 October 2017