Danis v Commissioner of Police [2017] NSWCATAD 144

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Danis v Commissioner of Police [2017] NSWCATAD 144 Hearing dates: 29 March 2017 Date of orders: 09 May 2017 Decision date: 09 May 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior member Decision: The agency's decision to refuse to deal with the application is affirmed. Catchwords: ADMINISTRATIVE LAW – Government information – refusal to deal with request because information was produced in response to a subpoena – meaning of "available" Legislation Cited: Government Information (Public Access) Act 2009 Administrative Decisions Review Act 1997 Cases Cited: Commissioner of Police v Danis [2017] NSWCATAP 7 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Bell v Day (1886) 2 QLJ 180 Hearne v Street [2008] HCA 36 Texts Cited: Macquarie Dictionary Category: Principal judgment Parties: Emil Danis (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Sparke Helmore (Respondent)

E Danis (Applicant) in person File Number(s): 2015/00383598

reasons for decision 1. The application for review made by the applicant in these proceedings has been remitted to me to redetermine following a decision by the Appeal Panel (Commissioner of Police v Danis [2017] NSWCATAP 7) on 10 January 2017. 2. An appeal was lodged by the Commissioner of Police from a decision of the Tribunal at first instance made under the Government Information (Public Access) Act 2009 (the GIPA Act). The Tribunal set aside the Commissioner's decision to refuse to deal with the application, and ordered the Commissioner to disclose the information that was in issue. 3. The information in issue was a DVD of a police interview with the applicant's son dated 12 June 2014. The applicant originally applied for this DVD and two COPS Events (E54127072 and E54409764) on 15 May 2014. The respondent had originally refused to provide access to the DVD on the basis that there was an overriding public interest against disclosure pursuant to clause (a) of Table 3 under s.14 of the GIPA Act. 4. On 5 August 2015 the applicant filed an application for review of that decision with the Information Commissioner. The Information Commissioner reported on 5 November 2015 and made no recommendations in her report. 5. Subsequently the applicant applied to the Tribunal for review of the 6 July 2015 decision. On 24 May 2016 the Tribunal remitted the matter to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997. On 31 May 2016 the respondent determined to release E54127072 in full, and in relation to the DVD, to refuse to deal with the request, pursuant to s 60(1)(d) of the GIPA Act. 6. Section 60(1)(d) of the GIPA Act provides: "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): … (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." 1. In its decision the respondent stated: "The NSWPF is refusing to deal with this part of your access application because the information requested has been the subject of a subpoena for production of documents to the Family Court of Australia (Ref No Sub/2014/5524 – copy attached) and is available to you as a result of having been produced in compliance with the subpoena, as stated in your application dated 8 May 2015." 1. On 12 July 2016 the Tribunal issued a decision which set aside the decision of the respondent and ordered that the DVD be released to the applicant. 2. On appeal, the Appeal Panel held that the Tribunal at first instance had regard to two irrelevant considerations, and failed to have regard to considerations of a systemic kind which it held were relevant to the exercise of the discretion to refuse to deal with the application. 3. The Appeal Panel stated: "46 The Tribunal referred to three matters in reaching the view that the correct and preferable decision was to release the DVD: (a) The information that is the subject of the DVD is information concerning the applicant's son. (b) The applicant has already viewed the information. (c) Release of the information would not release any new information. 47 The agency is correct in its submission that factors (b) and (c) are of no relevance to the exercise of the s 60(1)(d) discretion. They are factors that will always be present when s 60(1)(d) is relied upon by an agency. They are mere factual predicates to the exercise of the discretion; they are pre-conditions. They do not, of themselves, inform the exercise of the discretion. Parliament clearly gave agencies a discretion not to proceed with an access application, even though the applicant may well have seen the information, and therefor necessarily it could be said not to 'new' information when GIPA Act access application is made. 48 Factor (a) relied on by the Tribunal - that the DVD related to the applicant's son – might have some arguable relevance. A parent might be said to have a stronger stake in getting full access to material that bears on a family member, as against material of some other kind. But equally privacy considerations and respect for the wishes of the child might come into play as countervailing factors. 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. 50 In our view, as submitted by the agency, the Tribunal needed at least to weigh the systemic considerations that might justify the agency in not continuing to process the application." 1. Accordingly I am now required to redetermine the application for review, within the scope outlined by the Appeal Panel.