Peacock v Commissioner of Police, NSW Police Force [2019] NSWCATAD 20

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Peacock v Commissioner of Police, NSW Police Force [2019] NSWCATAD 20 Hearing dates: 31 October 2018 Date of orders: 16 January 2019 Decision date: 16 January 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: D A C Robertson, Senior member Decision: The decision of the Commissioner is affirmed Catchwords: ADMINISTRATIVE LAW – Access to government information – disclosure of personal information – consent of affected persons not sought – motive of applicant in seeking documents would not be advanced by production Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Criminal Procedure Act 1986 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: CCB v Department of Education and Communities [2015] NSWCATAD 145 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 Category: Principal judgment Parties: Jeanne Peacock (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Applicant self-represented Crown Solicitor's Office (Respondent) File Number(s): 2018/00203179

REASONS FOR DECISION 1. On 19 January 2018 the applicant, Ms Peacock, made application pursuant to the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) to the respondent, the Commissioner of Police, in the following terms: "I'm requesting the information of my daughter who took her life on 26th February 2017. She asked for help from the Police in Bathurst on various occasions. I believe the Police chose not to record them. An AVO was taken out and then taken off. Photos were taken of physical abuse from her husband. The inspector Powell withdrew the AVO without telling her. I need whatever information please as the Police domestic person told me it is recorded. My daughter, Adrianna De Pasquale, was separated for 7 months prior to her death." 1. The information sought by Ms Peacock was identified in the application as relating to an incident in August to December 2016 reported to Bathurst Police Station. 2. The application recorded: that Ms Peacock did not wish other involved persons to be contacted to obtain their consent to release information to her; that Ms Peacock did require the personal information of other persons involved; that Ms Peacock did not consent to the other persons being given her details as the applicant requesting their information; and that Ms Peacock would not accept a statement without the personal information of the other parties. 3. Subsequently, Ms Peacock provided a statutory declaration and death certificate. The statutory declaration was signed on 7 February 2018 and stated: "I am the mother and next of kin to Adrianna Peacock requesting information about my daughter attending the Bathurst Police Station requesting help from the Police because her being separated from her husband and he was harassing her. This was between July 2016 and February 2017. Over the last 5 years she had been to the Police station. If you could give the information please that I was told was in the database." 1. On 19 June 2018, the respondent made a decision pursuant to s 58(1)(d) of the GIPA Act to refuse access in full to "documents involving Adrianna DePasquale around August to December 2016" on the basis that there is an overriding public interest against disclosure. I note that that decision was made outside the period within which, pursuant to s 57 of the GIPA Act, the application was required to be determined. 2. The public interest consideration against disclosure relied on by the respondent was that disclosure of the information could reasonably be expected to reveal an individual's personal information (clause 3(a) in the table to s 14 of the GIPA Act). Under the heading "Outcome of the Public Interest Test", the decision-maker stated: "The information regarding your daughter…remains her personal information until she has been deceased for a period of 30 years in accordance with the Act. There is no evidence within the documents under review to suggest that the person/s who tendered information in relation to the incidents consented to the disclosure of the information being provided to you. Your application form also indicated that you do not wish for us to consult with other involved persons." 1. On 29 June 2018 Ms Peacock filed in the Tribunal an application pursuant to s 100 of the GIPA Act for administrative review of the decision to refuse disclosure of the documents. Ms Peacock stated her grounds for the application as follows: "I was told by the police that there was nothing on the data base of my daughter requesting help from the Bathurst police…I knew differently. I spoke to 4 inspectors who covered each other by saying nothing is on the database. I applied to GIPA who stalled an answer. After 6 months I was refused and told I could apply on a Part 5 of the Act…when I should have had an answer within 30 days also stating I could apply in 30 years as my daughter did not give consent…she took her own life in 2017 as the police made decisions based on her husband who had emotionally abused her for a number of years." 1. It may be noted that in her statutory declaration (extracted at [4] above) Ms Peacock referred to a broader range of dates than in her application. After the filing of the application for review, the respondent conducted a search of his records over the broader date range (ie August 2016 to February 2017) and identified one further document. 2. After further consideration of Ms Peacock's application, the respondent provided to Ms Peacock a redacted copy of three documents. Those documents were each event reports from the Computerised Operational Policing System (COPS) database maintained by the respondent. The information disclosed in those documents in their redacted form is, in summary, personal information of the applicant's daughter. The respondent states that this information was disclosed because the respondent no longer considers there to be an overriding public interest against disclosure. The information redacted from the documents was excluded from disclosure by reference to the public interest considerations set out in clauses 1(d), 1(f), 1(g), 3(a), 3(c) and 3(g) of the table to s 14 of the GIPA Act 9 (which are summarised at [17] below).