Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gilleland v Commissioner of Police, NSW Police Force [2018] NSWCATAD 68 Hearing dates: On the Papers Date of orders: 27 March 2018 Decision date: 27 March 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member Decision: 1. The decision of the respondent to refuse to provide the applicant with access to the requested government information in the form requested by the applicant is affirmed. Catchwords: ADMINISTRATIVE REVIEW – government information - applicant sought access to a copy of a video recording of an incident involving the applicant and a member of her family – a copy of the video recording was provided to the respondent at the time police attended the home of the applicant following the incident – applicant granted access by viewing the video at the offices of the respondent – respondent refused to provide a copy of the video as requested by the applicant - whether there was an overriding public interest against disclosure of the video in the form requested by the applicant Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Cases Cited: Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 Commissioner of Police (NSW) v Field [2016] NSWCATAP 59 Flack v Commissioner of Police, New South Police [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Leech v Sydney Water Corporation [2010] NSWADT 198 Neary v State Rail Authority [1999] NSWADT 107 Category: Principal judgment Parties: Shani Gilleland (Applicant) Commissioner of Police, NSW Police (Respondent) Representation: Counsel: L Teoh (Applicant) Solicitors: Sparke Helmore Lawyers (Respondent) File Number(s): 2017/00163593 reasons for decision Introduction 1. The applicant, Shani Gilleland, seeks review of a decision of the respondent, the Commissioner of Police, NSW Police, to refuse her access to specified government information in the form requested by her: see Government Information (Public Access) Act 2009 (NSW) (GIPA Act), ss 72, 80(i) and 100. 2. The government information the applicant sought access to was a copy of video the applicant's daughter-in-law, Emma Gilleland, had taken on 4 December 2016 with her mobile phone. The video was taken during an altercation between the applicant and her daughter-in-law and the daughter-in-law's father outside the unit where the applicant and her husband had resided. The police were called and they obtained a copy of the video taken by the applicant's daughter-in-law. 3. The respondent determined to grant the applicant access to the video by allowing her and her legal representative to view it, which they did in August 2017. 4. Having viewed the video, the applicant pressed her access application as to the form of access; namely being provided with a copy of the video. 5. As I have noted above, the respondent determined to refuse the applicant's request as to the form of access on the grounds that there was an overriding public interest against disclosure (see GIPA Act, s 72(2)(d)). The overriding public interests against disclosure relied on by the respondent are that, a disclosure of the information in the form requested by the applicant could reasonably be expected to: 1. reveal an individual's personal information (GIPA Act, s 14 cl 3(a) in the Table); and 2. contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW) (GIPA Act, s 14 cl 3(b) in the Table). 1. The respondent, who bears the onus to establish that his decision the subject of review is justified (GIPA Act, s 105(1)), contends that the decision is the correct and preferred decision and should be affirmed: see Administrative Decisions Review Act 1997, s 63. In support of his contentions, the respondent relied on a statement of Matt Smith, a Senior Advisory Officer of the External Information Access Unit of the respondent, dated 30 November 2017. In his statement Mr Smith gave evidence of third party consultation he had undertaken in regard to the video pursuant to s 54 of the GIPA Act. 2. The applicant contends that the decision is not the correct and preferred decision and should be set aside and in substitution thereof, the Tribunal should make a decision granting her access to the video in the form requested. In this regard, the applicant contends that here are strong personal factors in favour of disclosure, as the information on the video includes her personal information and she has provided an explanation as to why she wants a copy (GIPA Act, s 55). The applicant also contends that the respondent has failed to establish that the personal information on the video has not already been released. In support of her contentions, the applicant relied on a statement she made on 11 December 2017. 3. For the reasons set out below, I have found that the decision of the respondent is the correct and preferable decision and should be affirmed. Background 1. On 9 January 2017, the applicant made an access application to the respondent seeking access to the video and the Police report, Event No E62968352, in regard to the 4 December 2016 altercation/incident. As I have noted, the altercation occurred outside the home unit where the applicant and her husband lived. Living next door was the applicant's son and daughter in law. 2. On 7 March 2017, the respondent determined to grant the applicant access to the Police report, subject to some redactions on the grounds of there being an overriding public interest against disclosure. The respondent also determined to refuse access to the video in its entirety on the same grounds. 3. On 22 March 2017, the applicant sought internal review of the decision of the respondent (see GIPA Act, s 82). The respondent determined the internal review on 20 April 2017. The internal review decision affirmed the original decision. 4. On 31 May 2017, the applicant lodged her application for external review by the Tribunal. The applicant's application for review first came before the Tribunal at a case conference on 29 June 2017. At the case conference the Tribunal made a number of orders including, an order that the decision of the respondent be remitted for reconsideration following consultation with Ms Emma Gilleland and her father (see Administrative Decisions Review Act 1997 (NSW), s 65). 5. On 10 July 2017, Mr Smith, on behalf of the respondent, consulted, via email, with Ms Emma Gilleland and her father. Ms Emma Gilleland responded on 12 July 2017 stating that she and her father did not consent to the video being released. She also gave reasons why it should not be released to the applicant. 6. On 26 July 2017, the respondent made a further decision, on reconsideration, in regard to the video. No further decision was made in regard to the redacted Police report as the applicant had indicated that she no longer sought access to the redactions in that report. In regard to the video, the respondent determined that the applicant should be granted access to the video and that the form in which that access was to be granted was to view the video at the offices of the respondent. 7. The applicant and her legal representative viewed the video at the offices of the respondent, on 9 August 2017. 8. The matter was next before the Tribunal on 12 September 2017, for a further case conference. On this occasion the Tribunal made orders for the filing and serving of evidence and submissions and the matter was set down for hearing on 27 November 2017. 9. On 24 November 2017, by consent, the parties made a request for the hearing of the matter to be adjourned. That request came before me in chambers and I refused the request as no reasons for the adjournment were given. 10. The matter came before me on 27 November 2017 for hearing. The parties again sought an adjournment, as the matter was not ready to proceed due to evidence and submissions not having been filed as directed. With the consent of the parties I made further orders for the filing and serving of evidence and submissions. By consent I also made an order that the matter was to be determined on the papers: Civil and Administrative Tribunal Act 2013, s 50. The GIPA Act 1. It is convenient to set out the relevant provisions of the GIPA Act. 2. First, the object of the Act is to "open government information to the public" so as to "maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective", 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. (GIPA Act, s 3(1)) 1. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (GIPA Act, s 5). 2. A person who makes an access application for government information has a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (GIPA Act, s 9). 3. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). Public interest considerations in favour of disclosure are not limited (GIPA Act, s 12(2)) and examples of such include: (a) … … (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 1. There is an "overriding public interest against disclosure" of government information 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 (GIPA Act, s 13). 2. The public interest considerations against disclosure are limited. These are set out in s 14 of the GIPA Act as follows: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information." 1. In this application, the public interest considerations against disclosure that are relied on by the respondent fall within cl 3 of the Table to s 14. They are: 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 … 1. When determining whether there is an overriding public interest against disclosure, an agency is to have regard to the following principles (GIPA Act, s 15): (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. In Flack v Commissioner of Police, New South Police [2011] NSWADT 286, at [19], the Tribunal confirmed that, in applying the s 13 public interest test, an agency (and the Tribunal on review) are to: 1. identify the public interest in favour of the disclosure of the information sought; 2. identify the public interest against disclosure (with reference to the Table in s 14); and 3. determine where the balance lies. 1. Section 55 makes provision for personal factors to be taken into account in determining where the public interest lies. That section is in the following terms: 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. (5) … (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73. 1. In Hurst v Wagga Wagga City Council [2011] NSWADT 307, at [94], the Tribunal noted that when weighing the public interest considerations in favour of disclosure against those against disclosure, 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." 2. Section 72 makes provision for the form in which access can be provided. That section is in the following terms: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways: (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless: (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note. Decisions about how to provide access are reviewable under Part 5. 1. Section 73 provides that, subject to the prescribed exceptions in regard to the form of access, when providing access to government information, an agency is not entitled to impose any condition on the use or disclosure of that information. That section is in the following terms: 73 Access to be unconditional (1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. (2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information. (3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally. Note. Access can also be made conditional on the payment of processing charges (s 64) and on the provision of evidence of identity or other personal factors relevant to the agency's decision to provide access (s 55). 1. As I have already noted, the burden of establishing that its decision to refuse the applicant access to the video, in the form requested by her, is justified lies on the respondent (GIPA Act, s 105(1)). Personal factors of the application 1. In her statement of 11 December 2017, the applicant set out the circumstances surrounding the altercation/incident that occurred on 4 December 2016 between her and her daughter-in-law and daughter-in-law's father. 2. The applicant explained that there had been an altercation the previous day when her daughter-in-law and her daughter-in-law's father, assisted by work staff, were removing furniture and belongings from the property where both units were located. The applicant said that some of the items being removed belonged to her and her husband. She said that her daughter-in-law also had her work staff load the trailer with furniture and white goods that were part of her late mother's estate. She said that, when she saw her daughter-in-law's father loading his car with items that had belonged to her mother she attempted to recover them. She said he elbowed her in the breast leaving a bruise. She said she filmed the incident with her phone and when her daughter-in-law and her daughter-in-law's father did not stop, she contacted the police. However, her daughter-in-law's father had left the property before the police arrived. 3. The applicant said that as a result of what happened that day she was concerned that her daughter-in-law and her daughter-in-law's father may remove further items belonging to her and her husband even though her lawyers had spoken to the police officer and told him no other items were to be taken from the property. 4. She said that on the following day, 4 December 2016, she saw her daughter-in-law on the side of her unit. She said she went outside and saw her daughter-in-law and her daughter-in-law's father standing near the power box, which was on the side of her unit of the property. She said she saw her daughter-in-law's father had her sprinkler and hose in his hands and told him and her daughter-in-law to stop taking her stuff. She said her daughter-in-law's father did not put down the hose and sprinkler and she saw that her daughter-in-law was taking a video. The applicant said she also turned on her phone to take a video. She said that, when she saw the father of her daughter-in-law walking away with the hose and sprinkler, she attempted to take them from him, but was dragged across her driveway. The applicant said she sustained a number of lacerations, swelling and bruises to her hands and arm by being dragged across the driveway. 5. The applicant said that her daughter-in-law's father threw the hose and sprinkler on the ground and he and her daughter-in-law went back inside their unit. The applicant said she also went inside and telephoned the police and her husband, who was ill in bed. 6. The applicant said that the same police officer who had attended the previous day came again. She said he called an ambulance to attend to her injuries, but he did not appear to be otherwise concerned about her injuries. The applicant said the ambulance treated her injuries on site and that the police officer then looked at her video. She said, after a few minutes, the police officer appeared to dismiss her video. She said that the police officer did not take a statement from her. Instead, the police officer went into the unit of her son and daughter-in-law. She said the police officer spent about half an hour inside with her daughter-in-law and her daughter-in-law's father. She said her son also arrived and spoke to the police officer. She said that the police officer then came out and spoke with her and said words to the effect of: "based on what I have seen, you're lucky not to be charged". She said that subsequently, her husband went to the police station and the police officer showed him the video of his daughter-in-law. She said her husband was "astounded" at what the police officer said to him. 7. The applicant said that she seeks a copy of the video so as to investigate whether to initiate legal proceedings. She also said that she was dissatisfied with the nature of the investigation undertaken by the police officer in that he appeared to have dismissed her version of events, despite her being the complainant and without properly investigating her claim. She said that the police officer has accepted that she is considering making complaints to the relevant authorities about the quality of his investigation 8. The applicant also said that as a result of what had occurred both she and her husband feel abandoned and let down by the system. This was especially so as at the time they were particularly vulnerable. She said both she and her husband are elderly and her husband was waiting to have surgery on a brain tumour and his prostrate. Personal factors in favour of disclosure in the form requested by the applicant 1. I have viewed the video and accept that the information on the video identifies the applicant and contains her personal information. The video also contains the personal information of others; namely the personal information of the applicant's daughter-in-law and the father of her daughter-in-law. I have dealt with the issue of the personal information of others in more detail below, under the heading: "public interest consideration against disclosure." 2. I also accept the applicant's explanation as to why she seeks access to a copy of the video. However, the applicant has not explained how the access to a copy of the video will assist her in deciding to initiate legal proceedings, or to make a complaint against the police officer. I note the applicant has her own video recording of the event of that day. 3. In her email response to the respondent, during the course of the July 2017 consultation, the applicant's daughter-in-law referred to legal proceedings having been initiated between the parties, which had recently been settled. The nature of those proceedings has not been explained, other than to say that the parties were bound by a confidentiality clause in the settlement agreement. 4. In her response to the respondent, the applicant's daughter-in-law said that the 4 December 2016 altercation was raised during the confidential settlement discussions of the legal proceedings and that this was a basis on which she opposed the applicant being given a copy of the video. 5. In regard to her proposed complaint against the police officer, the video is already in the possession of the office of the respondent. Hence, there would appear to be no difficulty in the applicant formerly making her complaint on the information she has already had access to. Personal factors against disclosure in the form requested by the applicant 1. The video records a family altercation that occurred more than a year ago. The applicant's daughter-in-law has said that she could not see "a valid reason as to why this incident needs to be addressed further." She went on to say that she believes the release of the video to the applicant will only create more emotional turmoil for her family. She said the applicant had already distributed to others, without her consent, the video footage she took of the 4 December 2016 altercation. She said she was concerned that if the applicant were to be given a copy of the video the subject of this application she would do the same. 2. Other than being provided with a copy of the video for the purpose of investigating the possibility of commencing legal proceedings and lodging a complaint against the police officer, the applicant has not denied that she has distributed to others a copy of the video she took. Nor has she responded to the allegation that if given a copy of the video, she will distribute it further. Public interest consideration in favour of disclosure in the form requested by the applicant 1. I reiterate, s 12(1) of the GIPA Act, which provides that there is a general public interest in favour of the disclosure of government information. 2. In this case the specific public interest consideration in favour of the disclosure of the information is that it contains personal information of the applicant: see GIPA Act, s 12(2) Note (d). 3. However, the video also contains the personal information of the applicant's daughter-in-law and the daughter-in-law's father, which the respondent claims to be a strong public interest consideration against disclosure (see below). 4. I agree with the respondent that it is not possible to separate the information contained within the video that is the personal information of the applicant from that which is the personal information of the applicant's daughter-in-law and that of the father of the applicant's daughter-in-law. 5. As I have noted, the information in the video has already been disclosed to the applicant in that she has viewed it. Accordingly, the personal information of others on the video has already been disclosed to the applicant. 6. The applicant also contends that the disclosure of the information "could reasonably be expected" to reveal or substantiate that a member of an agency (i.e. a police officer(s)) has engaged in misconduct or improper conduct: see GIPA Act, s 12(2) Note (e). Again this is a public interest consideration in favour of disclosure. 7. The term "could reasonably be expected to" has been construed to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28] and Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190. That is, there must be a "real" risk, however, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36]. 8. The Tribunal has held that the phrase simply calls for an "objective assessment", of the evidence, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. 9. Ultimately, it is of course a question of fact 10. The respondent submitted that the applicant's desire to make a complaint against the officer(s) involved in the investigation of the incident was not a persuasive reason in favour of disclosure. In this regard the respondent noted that the nature of the officer's investigation was not revealed by disclosure of the footage on the video, as the investigation took place after the video had been taken. The respondent also submitted that the applicant, having already viewed the footage, was well-placed to consider making a complaint against the officer(s) involved in the investigation of the incident 11. For the reasons I have given above, I agree with the respondent that this public interest consideration in favour of disclosure of the video in the form requested by the applicant is not very strong. However, I do not agree that the information on the video is of no relevance to a complaint the applicant is considering making against the police officer(s). While the video does not contain any image or presence of the police officer(s), what appears to be of concern to the applicant is their acceptance of the information on that video and rejecting what the applicant had recorded on her video of the incident. That is, the information in the video might be relevant to, or substantiate an allegation of misconduct by the police officers who had investigated the incident. However, as I have already noted, the video is already in the possession of the respondent and the applicant knows what is on it. Public interest considerations against disclosure 1. As noted above, the respondent relies on two public interest considerations against disclosure as set out in the Table to s 14 of the GIPA Act. I have dealt with each of these separately below. Table 3(a) Personal Information 1. I reiterate, this public interest consideration against disclosure applies "if disclosure of the information could reasonably be expected to … reveal an individual's personal information." 2. I have dealt with the meaning of the words "could reasonably be expected to" above. 3. The word "reveal" is defined in Schedule 4, cl 1 of the GIPA Act to mean: "Reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)." 1. As indicated above, the personal information contained in the video is the personal information not only of the applicant but also the personal information of her daughter-in-law and the father of her daughter-in-law. That is, the information includes the voice of the applicant's daughter-in-law and that of her daughter-in-law's father, images of the father of the applicant's daughter-in-law together with information about their personal family circumstances, their private relationships, and their involvement in the dispute portrayed in the video. 2. The respondent accepts that the personal information of the applicant's daughter-in-law and the daughter-in-law's father are known to the applicant. However, the respondent goes on to submit that there is no evidence that this personal information has otherwise been publicly disclosed. Accordingly, the respondent submits that the disclosure of the video to the applicant in the form requested could reasonably be expected to "reveal", as it would disclose, the personal information of her daughter-in-law and that of the daughter-in-law's father. 3. The applicant submits that a disclosure of the video to her would disclose information that has already been disclosed/revealed. In this regard, the applicant submits that her daughter-in-law and the daughter-in-law's father can be expected to have already disclosed/revealed the information contained in the video. The applicant also submits that as the incident occurred in the driveway to her unit it occurred in a public location that was viewable by members of the public. The applicant conceded that there was no evidence led to indicate the presence of anybody else on the street at the relevant time. However, it was submitted that it was not logical or unreasonable to expect that there was a possibility of bystanders or onlookers who would have witnessed to the incident. That is, the events took place in circumstances where a member of the public could have viewed what was going on. In the circumstances, the applicant submitted it was incumbent on the respondent to establish that the personal information of the applicant's daughter-in-law and the daughter-in-law's father had not already been disclosed, as it bore the onus under the GIPA Act. This, the applicant contended the respondent had failed to do. 4. In the respondent's submissions in reply, the respondent again submitted that there remained no evidence that the personal information of the applicant's daughter-in-law and the daughter-in-law's father had been publicly disclosed. The respondent submitted that a bare assertion that members of the public may have been witness to the incident was not a sufficient basis upon which the Tribunal could reasonably draw the conclusion that the incident was witnessed by another person such as to give the incident the character of having been publicly disclosed. In this regard, the respondent noted that the incident occurred in a relatively isolated location of the applicant's premises. 5. The respondent also pointed to the decision of the Appeal Panel in Commissioner of Police (NSW) v Field [2016] NSWCATAP 59 at [63] to [68]. In that appeal, the respondent, Mr Field (the access applicant), had sought access to CCTV footage relating to an incident that occurred at a public shopping centre in which he was involved. The Appeal Panel held that just because the CCTV footage in issue depicted an incident that had occurred in a public place where it was established that other people had witnessed the incident did not mean that the information contained with in the footage had been publicly disclosed. At [67] to [69] the Appeal Panel noted the following: 67 Looking at the statutory provisions, it can be seen that "personal information" has a wide definition: GIPA Act, Sch 4, cl 4. It is not defined by reference to matters that have occurred in private. It is concerned with information "about an individual". 68 When it comes to the question whether such personal information has been revealed, the statutory provisions are concerned with revealing information, not with a revealing the event to which the information relates (cl 3(a) in the Table in s 14 and the definition of "reveal information" in cl 1 of Schedule 4 of the GIPA Act). The incident itself is quite distinct from the information that is obtained about it. 69 The fact that some information about the event has been publicly disclosed does not mean that other information has been. Correctly, the Tribunal below, as we interpret its reasons, did not conclude that the information in the footage had been publicly disclosed because of the tender in open court of the police fact sheet describing the incident (at [76]-[77] and see the reason for its conclusion on this point at [81]) or because of the press reports about the incident. 1. I agree that there is no evidence to indicate that the personal information of the applicant, the applicant's daughter-in-law or the daughter-in-law's father, as contained in the video, has been disclosed or revealed to others publicly. The objection of the applicant's daughter-in-law to the applicant being provided with a copy of the video would suggest this was so. In any event, in my view it was not incumbent on the respondent to make any enquiries in this regard: see GIPA Act, s 55(6). If the applicant had information/evidence of such a disclosure (i.e. public disclosure), it was incumbent on her to provide that information to the respondent, who would have considered this information/evidence together with the other material he had. 2. Finally, for completeness, I am also not persuaded, on the material before me, that the incident occurred in a public place. 3. Accordingly, I find that the respondent has established this public interest ground against disclosure. Table 3(b): Breach of Privacy 1. I reiterate, this public interest consideration against disclosure applies "if disclosure of the information could reasonably be expected to … contravene an information protection principle under the Privacy and Personal Information Protection Act 1998: (PPIP Act) 2. The relevant information protection principle in this application is that contained in s 18 of the PPIP Act which provides 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. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 1. In her written submissions, the applicant noted that the information contained in the video "relates" to her directly, as it is information in relation to an incident in which she was directly involved. Hence, it was submitted that the information contained in the video fell within the introductory words of section 18 (1) of the PPIP Act. 2. The respondent submitted that the video recording was provided to police and "collected" by police for the purposes of law enforcement and criminal investigation. The respondent went on to submit that release of the recording to the applicant would not be for that purpose, or directly related to that purpose. Hence, a release of the video recording would amount to a breach of the abovementioned information protection principle, especially as the applicant's daughter in law had objected to the disclosure of video to the applicant. 3. In his written submissions in reply, the respondent noted that not all of the personal information contained within the video was information relating to the applicant. The respondent went on to submit that even where some of the information is the applicant's personal information, where that personal information cannot be isolated from the personal information of other people, release of the information would result in a breach of s 18 of the PPIP Act. 4. For the reasons I have given above, I agree with the submissions of the respondent in that the information contained within the video contains personal information of persons of the applicant and other persons and that the personal information of the other persons cannot be isolated from the personal information of the applicant. I also agree that, on the material before me, that the video was "collected" by the police for the purpose of law enforcement and that the disclosure of that information in the form requested by the applicant would be contrary to the purpose for which police had collected the video from the applicant's daughter-in-law. I also find that the applicant's daughter-in-law has not consented to the disclosure of her personal information as contained in the video. 5. Accordingly, I find that the respondent has established this public interest consideration against disclosure. Where does the balance lie? 1. As indicated above, s 72(2) of the GIPA Act provides that an agency must provide access to the information in the way requested by an access applicant unless one of the four circumstances prescribed in that subsection applies. In this case the respondent contends that the public interest considerations against disclosure of the video in the form requested by the applicant, on balance, outweighs the public interest considerations in favour of the disclosure of the video in the form requested by the applicant: see GIPA Act, s 72(2)(d). 2. The applicant relies on the personal factors, as factors in favour of providing her with a copy of the video. In particular she relies on the fact that the video contains her personal information and her intention to bring legal proceedings and to make complaints against the officer(s) involved in the investigation of the 4 December 2016 incident. She also relies on her vulnerabilities as set out in her statement. 3. That is, the applicant submitted that the balancing test between the public interest for and against disclosure ought to be resolved in favour of the disclosure of the information in the video by providing her with a copy of the video. In other words, the applicant does not accept that there is an over riding public interest against disclosure. 4. The respondent submitted that the public interest considerations in favour of disclosure were not strong. He accepted that the video contained personal information of the applicant. However, disclosure of this information could not be separated from the personal information of others on the video. 5. The respondent contended that the public interest considerations in favour of disclosure should be given very little weight. In this regard, the respondent submitted that it was readily apparent from the information contained in the video that the applicant and her daughter-in-law and the daughter-in-law's father do not enjoy an amicable relationship. It was contended that footage plainly related to the private and intimate affairs of the individuals involved, and that this had little relevance to the public interest in regard to the disclosure of such information. That is, there can be very little public interest in airing footage depicting an unfriendly relationship between family members. 6. The respondent submitted that the applicant was not prevented from commencing legal proceedings, should she wish to do so. In this regard it was contended that it was open to the applicant to obtain the video by way of subpoena, if and when she commenced such proceedings. As I have already noted, the respondent also submitted that providing the applicant with a copy of the video would not assist the applicant in deciding whether to make a complaint against police as the police officer(s) arrived after it had been taken. Furthermore, there was nothing stopping the applicant from making her complaint about the police officer(s). 7. For the reasons I have given above, I agree with the respondent that not much weight can be given to the public interest consideration in favour of the disclosure of the video in the form requested by the applicant. In making this finding, I have taken into account the personal factors of the applicant in so far as they relate to the public interest considerations in favour of disclosure. That is, I accept the applicant may have and continues to have a personal interest in pursuing civil proceedings in regard to the incident and also in making a complaint against the police officer(s). However, as I have noted above, that interest does not appear to be hindered by the applicant not being provided with a copy. The applicant has her own video and record of what occurred. 8. The respondent contends that considerable weight should be given to the public interest considerations against the disclosure of the information on the video in the form requested by the applicant. 9. In this regard, the respondent submitted that the applicant's personal factors should be given considerable weight as factors against disclosure in determining where the balance lies. That is, not being provided with a copy of the video does not prevent the applicant from bringing legal proceedings or making a complaint against the police officers. Yet a disclosure of the information on the video in the form requested by the applicant could reasonably be expected to: (a) reveal the personal information of the applicant's daughter-in-law and the daughter-in-law's father; and (b) contravene the s 18 information protection principle of the PPIP Act. 10. The respondent contended that as the applicant's daughter-in-law had consented to the applicant having viewing access to the view video, her objections to the applicant being provided with a copy of the video should be given significant weight, especially given the acrimonious relationship between the parties and the fact that the applicant has already distributed her own footage of the incident to other people for her own personal reasons. 11. Having regard to the object of the GIPA Act, to advance a system of responsible and representative democratic government that is open, accountable, fair and effective, and that there is a general public interest in favour of the disclosure of government information, I also agree with the respondent that in this case, on balance, the public interest considerations against disclosure of the information contained in the video in the form requested by the applicant, outweigh the public interest considerations in favour of disclosure of the information in the form requested by her. 12. That is, I agree the public interests consideration against disclosure of the information on the video in the form requested by the applicant should be given considerable weight. In making this finding I have taken into account the personal factors of the applicant for and against the disclosure of the information in the form requested. I have also taken into account the fact that an agency is not entitled to impose any conditions on the use of, or the further disclosure of the personal information of persons other than the applicant on the video, in the event a decision was made to provide the applicant with a copy of the video as requested: GIPA Act, s 73(1). 13. The applicant and her husband have had access to the personal information of others, as contained in the video, by viewing it. However, if the applicant were provided with a copy of the video, it cannot be provided subject to conditions. Hence, the applicant would be free to use the video and the information contained therein as she chooses. As noted above, this is of concern to the applicant's daughter-in-law, as she anticipates the applicant being provided with a copy of the video it will only create more emotional turmoil within the family over an issue that occurred sometime ago. 14. I make no finding that the applicant would do so if she were to be provided with access to the video in the form requested by her. However, I do find that in the event she were to be provided with a copy of the video it would be open to her to disclose the personal information of others that is contained within the video for purposes other than those she has identified in her statement. In my view, this is a relevant consideration in determining where, on balance, the public interest in disclosure of the information contained in the video lies. Conclusion 1. For the reasons set out above, I find that the respondent has discharged his onus in that there is an overriding public interest against disclosure of the information in the form requested by the applicant (i.e. a copy of the video). Hence, I find the decision of the respondent is the correct and preferred decision and should be affirmed. Orders 1. Accordingly I order: 1. The decision of the respondent to refuse to provide the applicant with access to the requested government information in the form requested by the applicant 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: 27 March 2018