Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114 Hearing dates: 17 April 2019 Date of orders: 12 June 2019 Decision date: 12 June 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: G Blake AM SC, Senior Member Decision: 1. The time for the making of the application is extended until 27 November 2018. 2. The extracts from "NSW Police Force Code of Practice for CRIME" pertaining to statements, and from "NSW Police Force Handbook" pertaining to statements are admitted as evidence in the proceedings. 3. The decision made on 14 April 2018 of the respondent so far as it refuses access to the Statement of Adam Curtis to the applicant is affirmed. 4. The decision made on 14 May 2018 of the respondent so far as it provides access to Event Report E 128813101 with the deletion of pages 15 to 20 to the applicant is affirmed. Catchwords: ADMINISTRATIVE REVIEW – Government Information (Public Access) – application for review by person aggrieved by decision to refuse to release information – public interest considerations Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information Public Access Act 2009 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Police Regulation 2015 Cases Cited: Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 Thomson v Sydney Trains (2015] NSWCATAD 257 Neary v Commissioner of Police, NSW Police Force (2015) NSWCATAD 223 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 Simring v Commissioner of Police [2009] NSWSC 270 Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90 Ermel v Department of Finance and Services [2013] NSWADT 183 Category: Principal judgment Parties: DTB (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Mitchell Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/00364537 REASONS FOR DECISION Summary 1. The applicant, DTB, by an out of time application seeks an administrative review pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) of the following decisions of the respondent, Commissioner of Police, NSW Police Force: 1. the decision made on 14 April 2018 (the First Decision) which relevantly refused access pursuant to the GIPA Act to the Statement of Adam Curtis (the Curtis Statement) and provided access to Event Report E 128813101 with the deletion of pages 15 to 20 (the redacted Event Report); 2. the decision made on 14 May 2018 (the Second Decision) which relevantly provided access to the redacted Event Report. 1. I have decided pursuant to s 101(4) of the GIPA Act to extend time for the applicant to make the application until 27 November 2018. 2. I am satisfied that the correct and preferable decision is to refuse access to the Curtis Statement to the applicant, and provide access to the redacted Event Report to the applicant. Accordingly, I affirm the First Decision so far as it refuses access to the Curtis Statement to the applicant, and Second Decision so far as it provides access to the redacted Event Report to the applicant. Background 1. On 14 February 2018, the applicant lodged an access application with the respondent under the GIPA Act seeking information relating to events involving the applicant including the Curtis Statement, Event Report E 128813101 (the Event Report) and certain CCTV footage. 2. On 14 April 2018, G Ye, Review Officer of the respondent, made the First Decision which relevantly refused access pursuant to the GIPA Act to the Curtis Statement and certain CCTV footage to the applicant, and provided access to the redacted Event Report to the applicant. 3. On 3 May 2018, the applicant lodged an internal review application with the respondent under the GIPA Act relevantly seeking the Event Report and certain CCTV footage, but not seeking the Curtis Statement. 4. On 14 May 2018, R Rajagopal, Review Officer of the respondent, made the Second Decision which relevantly provided access to the redacted Event Report to the applicant, and refused access to the Event Report except to the extent of the redacted Event Report, and certain CCTV footage to the applicant. 5. On 20 June 2018, the applicant applied to the Information Commissioner for an external review of the Second Decision. 6. On 26 July 2018, Catherine Nguyen, Investigation and Review Officer, as delegate of the Information Commissioner, published the review report, which relevantly found the Second Decision is justified under cll 1 (d), (e) and (g) and 3(a) and (b) of the table in s 14 of the GIPA Act, and made no recommendation to the respondent (the Review Decision). Procedural history 1. On 27 November 2018, the applicant commenced proceedings 2018/00364537 in the Tribunal against the respondent and the Information Commissioner by lodging the application in which he seeks a review of the First Decision with respect to the Curtis Statement, the Second Decision with respect to the redacted Event Report and certain CCTV footage, and the Review Decision. 2. On 21 January 2019, the Tribunal made orders and directions including that the Information Commissioner has a right to be heard but is not a party to the proceedings, and noted that the applicant is seeking a review of the First Decision with respect to the Curtis Statement, the Second Decision with respect to the redacted Event Report and certain CCTV footage. The hearing 1. The hearing was held on 17 April 2019. Mr Mitchell represented the applicant. Mr Zoppo represented the respondent. Ms Higgins represented the Information Commissioner. 2. The issues were narrowed in the following respects: 1. the applicant no longer seeks access to certain CCTV footage; 2. the respondent only seeks to uphold the First Decision with respect to the Curtis Statement and the Second Decision with respect to the redacted Event Report in reliance on cll 1 (d), (e) and (g) and 3(a), (b) and (f) of the Table in s 14 of the GIPA Act. 1. At the conclusion of the hearing I made the following orders: 1. by 3 May 2019, the applicant is to provide relevant parts of the Code of Police Practice (the Code) and/or the Police Handbook (the Handbook) relevant to paragraph 8 of statement dated 10 April 2019 of Senior Sergeant Glen Reid (S/Sgt Reid) which is proposed to be tendered to the Tribunal and the respondent with any submissions as to why the evidence should be received, or advise the Tribunal and the respondent that there is no such material; 2. by 10 May 2019, the respondent is to provide to the Tribunal and the applicant any submissions as to why the evidence should not be received and the significance of the evidence. 1. The applicant relies on the following written evidence: 1. the statutory declaration of the applicant dated 5 February 2019; 2. the statutory declaration of the applicant dated 2 April 2019. 1. The respondent relies on the following written evidence: 1. a bundle of documents which included the First and Second Decisions; 2. the statement of S/Sgt Reid dated 13 March 2019; 3. the statement of S/Sgt Reid dated 10 April 2019; 4. the Curtis Statement and the Event Report in an unredacted form (the unredacted Event Report) which is tendered on a confidential basis. 1. The applicant seeks to tender extracts from "NSW Police Force Code of Practice for CRIME" pertaining to statements (the Code extracts), and from "NSW Police Force Handbook" pertaining to statements (the Handbook extracts). The respondent opposes this tender. 2. At the hearing S/Sgt Reid gave oral evidence. 3. The applicant relies on the following written submissions: 1. applicant's summary of legal arguments received by the Tribunal on 6 February 2019; 2. applicant's summary of legal arguments in reply dated 2 April 2019; 3. applicant's submissions dated 3 May 2019 pursuant to Tribunal's directions made on 17 April 2019. 1. The respondent relies on the following written submissions: 1. written submissions received by the Tribunal on 14 March 2019; 2. respondent's supplementary submissions received by the Tribunal on 10 May 2019. 1. The Information Commissioner relies on written submissions received by the Tribunal on 8 April 2019. The evidence of the applicant 1. In his two statutory declarations the applicant dealt with the matters set out below. The applicant's medical history 1. The applicant was police officer of the New South Wales Police Force (NSWPF) from 14 February 1997 to 10 October 2007 and attained the rank of Senior Constable. He was medically discharged and continues to suffer from various symptoms including "daytime fatigue due to the lack of sleep" and "an impaired memory and struggle to recall the simplest things". 2. Dr Selwyn M Smith, Consultant Psychiatrist, in his report dated 16 November 2017 records that the applicant has been a patient under his clinical care since 8 March 2006, and at his most recent examination reported ongoing impairments with his concentration, and difficulty in retaining information. His opinion is that the applicant demonstrates diagnostic criteria for a chronic Post Traumatic Stress Disorder. The circumstances giving rise to information sought from the respondent 1. The applicant resides at Ourimbah NSW. His former neighbour, Mr Adam Curtis, at Ourimbah over many years caused distress to his wife and him. At about 5.30pm on 17 January 2018, the applicant had a verbal altercation with Mr Curtis. At about 7.35am on 19 January 2018, the applicant was arrested, taken to Wyong Police Station and interviewed. The applicant was then released from custody without being charged. The events between 26 July and 27 November 2018 1. The applicant was notified of the Review Decision on or about 26 July 2018. He viewed the CCTV footage which was made available to him on 2 August 2018 at Tuggerah Lakes Police Station. After watching the footage, his symptoms worsened. He became withdrawn and his flashbacks and nightmares became more frequent. His sleep was further disturbed. The applicant and his wife decided they needed to get away, and in September 2018 went on a cruise to Fiji for eight days. On 26 October 2018, the applicant's father-in-law suffered a massive stroke, and subsequently died on 28 October 2018. This was another difficult event for the applicant. During this time the applicant overlooked to appeal the Review Decision or remember to appeal the First and Second Decisions. It was only after the applicant had contact with his solicitor that he instructed his solicitor to file the application. The reasons for the request for information sought from the respondent 1. The applicant has not had explained to him the reasons for his arrest and wishes to have access to the Curtis Statement so that he can examine the basis upon which he was arrested. He does not consider that the police had reasonable and probable cause to suspect that he had committed any offence to justify his arrest. Sighting of the Curtis Statement 1. During his interview the Curtis Statement was on the table and the applicant read parts of it. He recalls reading the parts which suggested he walked right up to Mr Curtis' face, threatened to kill Mr Curtis and waived his finger to Mr Curtis' face, but that it lacked detailed description and contained very little concerning the history between Mr Curtis and him as neighbours. Provision of witness statements 1. In his experience, when someone makes an official statement to NSWPF, they make it knowing it is likely to be provided to the person against whom the accusation is made. It also typically includes a jurat in the first paragraph in which the witness specifically acknowledges that the statement accurately sets out the evidence that the witness would be prepared, if necessary, to give in court as a witness. Furthermore, if he had been charged, the statement would ordinarily be included in the brief of evidence and provided to him. Confidentiality of information received by the NSWPF 1. In his experience as a police officer, usually people only gave confidential information to the police when the victim is an informant; the information relates to organised criminal activity; the person rings the police assistance line and specifically requests anonymity; or information was obtained and used in support of an application for a search warrant. The interview at Wyong Police Station 1. The gist of Mr Curtis' allegations were put to the applicant in his interview at Wyong Police Station, of which he has provided a transcription. The documents relied on by the respondent The First Decision 1. In the First Decision the respondent relevantly refused access to the Curtis Statement under cll 1(d) and 3(a) of the table in s 14 of the GIPA Act, and provided access to the redacted Event Report under cll 1(d), (f) and (h) and 3(a), (e) and (g) of the table in s 14 of the GIPA Act. 2. The subsection headed "Information withheld pursuant to 3(a)" with the section "OUTCOME OF THE PUBLIC INTEREST TEST" relevantly provides: "I have conducted the public interest test and taken into account the above sections of the Act; the circumstances of your application, and that disclosure under the Act is disclosure to the public in general, as an agency cannot impose conditions on how information released in response to an access application is used or disseminated. Accordingly, documents have been released with the exception of those parts of the documents that contain the personal information of other individuals. I have concluded that there is an overriding public interest against disclosing that information, pursuant to clause 3(a) of the Table in Section 14, as the section 12 factors are outweighed by the rights of the parties concerned to have their information protected." The Second Decision 1. In the Second Decision the respondent relevantly provided access to the redacted Event Report under cll 1(d), (e) and (g) and 3(a), (b) and (f) of the Table in s 14 of the GIPA Act. The reasons with respect to these clauses are recorded in the Review Decision. The Review Decision 1. The section headed "Public interest considerations in favour of disclosure" provides: "21. In its notice of decision, the Agency listed the following public interest considerations in favour of disclosure of the information in issue: a. the statutory presumption in favour of the disclosure of government information; b. the general right of the public to have access to government information held by agencies; and c. Applicant knows the identity of his neighbour and likely to know certain personal information relating to them and is already aware of certain information. 22. I agree these are relevant considerations in favour of disclosure." 1. The section headed "Public interest considerations against disclosure" relevantly addresses the following public interest considerations against disclosure of the information raised by the respondent: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency functions (cl 1(d) of the table to s 14 of the GIPA Act); 2. reveal a deliberation or consultation conducted, or an opinion or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (cl 1(e) of the table to s 14 of the GIPA Act); 3. found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (cl 1(g) of the table to s 14 of the GIPA Act); 4. reveal an individual's personal information (cl 3(a) of the table to s 14 of the GIPA Act); 5. contravene an information protection principle under the PPIP Act (cl 3(b) of the table to s 14 of the GIPA Act); and 6. expose a person to a risk. of harm or of serious harassment or serious intimidation (cl 3(f) of the table to s 14 of the GIPA Act). 1. The subsection headed "Consideration 1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency functions" relevantly provides: "29. In its notice of decision, the Agency states: The material refused/redacted relates to frank responses given to police during the course of police inquiries and were obtained in confidence. It is commonly understood that that information will have a confidential quality if the person were not bound to disclose the Information but did so on the basis of an express or inferred understanding that the information would be kept confidential and permissible purpose is to the court and only released in pursuance of legal proceedings or on their specific authority. 30. The Agency relies on the decision in Simring v Commissioner of Police [2009] NSWSC 270 (Simring) at [69) and states: Smart AJ discusses this point in the matter of Simring v Commissioner of Police (2009) NSWSC 270 at 69 when he says in part ... "When a person speaks with the police … and reveals sensitive matters that person expects that statements made will only be used for the purpose of Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to police and the sources of information not drying up. 31. I have considered the decision in Simring and note the decision specifically refers at [69] to victims of crime providing statements to police. I am satisfied that witnesses providing statements to police in respect of a possible criminal offence have a legitimate expectation that their statements will only be used for the purpose of Court proceedings. 32. I have reviewed the information in issue and am satisfied the Agency has demonstrated that the information refused: a. was provided to the Agency in the course of police inquiries in relation to a possible criminal offence; b. contains statements and responses provided voluntarily to the Agency by an individual not bound to do so; c. was provided in confidence that is inferred or otherwise stated; and d. if released, could prejudice the future supply of information upon which the Agency relies in order to exercise its function of investigating crimes. Future enquiries into possible crimes may be impeded by a reluctance to provide the Agency with information out of concern that the information may be made publicly available. 33. For the reasons outlined above I am satisfied that consideration of clause 1 (d) is justified." 1. The subsection headed "Consideration 1(e) - reveal a deliberation or consultation conducted, or an opinion or recommendation given, in such a way as to prejudice a deliberative process of government or an agency" relevantly provides: "35. In its notice of decision, the Agency states: The findings and recommendations are fundamental to the integrity of the process and to inhibit candid opinions or comments has potential to undermine or compromise the conclusions that are reached. I believe that it is inherent that members of the New South Wales Police Force discharge the responsibilities of their office effectively. In this regard, I am of the view that the effect discharge of these duties could be prejudiced if every document formulated in the course of deliberations in the decision making process was liable to be made public. 36. In order to demonstrate that the consideration applies to the information over which it has been claimed, all relevant factors of the consideration must be addressed. This includes: a. identifying the specific deliberation or consultation conducted, or opinion or recommendation that would be revealed upon disclosure of the information; b. describing the prejudice (disadvantage or detriment) that disclosure of this information would have on the agency's deliberative process (whether in a particular case or generally); and c. sufficiently linking the prejudice to the information over which this consideration is being claimed, such that the prejudice could reasonably be expected to occur should that information be disclosed. 37. I have reviewed the information in issue and am satisfied that the information over which the Agency has claimed this consideration does reveal a consultation and opinion. 38. The Agency has not identified what the deliberative process is that would be prejudiced by disclosure of the information. The Agency has only referred to the "determination process" and "deliberations in the decision making process". 39. However, having reviewed the information, I am satisfied that the information relates to the Agency's consideration of an appropriate course of action when assessing and investigating criminal allegations. 40. I have had regard to the Administrative Appeals Tribunal's consideration in Re Waterford and Department of Treasury (No 2) (1984) 1 AAR 1 that deliberative processes are the Agency's thinking processes, including the process of reflecting on a particular decision or a course of action. This approach was adopted by the New South Wales Civil and Administrative Tribunal in Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113. 41. I therefore accept that the Agency considering the most appropriate course of action when assessing and investigating an alleged crime is a deliberative process. 42. I also accept that this deliberative process could reasonably be expected to be prejudiced by disclosure of the information in issue. This is because police officers could reasonably be expected to be inhibited in recording their candid opinions or comments in relation to their deliberations because of the knowledge that a document might be made public. 43. For this reason, I am satisfied that the Agency has justified its consideration of clause 1(e)." 1. The subsection headed "Consideration 1(g) - found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence" relevantly provides: "45. In its notice of decision, the Agency states: The information disclosed was communicated or received under an inferred understanding of confidentiality. A breach of confidence arises out of an unauthorised disclosure of, or other use of information, which is subject to an obligation of confidentiality. 46. As discussed in relation to consideration 1 (d), I am satisfied that the information was provided to the Agency in confidence. 47. I am also satisfied that release of the information in issue would be an unauthorised disclosure. 48. I am therefore satisfied that disclosure of the information could reasonably be expected to result in the disclosure of information provided to the Agency in confidence. For this reason, I am satisfied that the Agency's consideration of clause 1 (g) is justified." 1. The subsection headed "Consideration 3(a) - reveal an individual's personal information" relevantly provides: "50. In its notice of decision, the Agency states: The information refused/redacted under clauses 3(a) and 3(b) is personal information relating to persons other than the applicant that was collected during the course of the police investigation. … The issue for consideration is whether the information withheld has been publicly disclosed. This agency has no evidence to suggest that the information withheld is already in the public domain, and therefore has not been revealed. Accordingly, I am satisfied that disclosure would reveal those parties' personal information and breach their right to have their information protected. Disclosure under the GIPA Act is disclosure to the public in general, as the legislation contains no provision to impose conditions (for formal applications) on how an applicant can use or disseminate the information, and this is paramount to the effect that disclosure would have. 51. Upon review of the information in issue, I note it includes descriptions of individuals' dates of birth, ages, relationships with others, movements and activities. Individuals' identities are apparent or could be reasonably ascertained from this information. 52. I am satisfied that this information is personal information. 53. I am also satisfied that this personal information has not already been publicly disclosed. Disclosure of the information in issue would therefore 'reveal' this personal information as defined by Schedule 4, clause 1 of the GIPA Act. 54. For these reasons I am satisfied that consideration 3(a) is justified in relation to some of the information." 1. The subsection headed "Consideration 3(b) - contravene an information protection principle under the PPIP Act" relevantly provides: "56. In its notice of decision, the Agency states: The information refused/redacted under clauses 3(a) and 3(b) is personal information relating to persons other than the applicant that was collected during the course of the police investigation. … Further, the information was collected for the sole purpose of the police investigation. The release of this information for a purpose not directly related to purpose for which it was collected which breaches a Personal Information Protection principle (PPIPA, s18). … 58. As discussed above, I am satisfied that the information contains personal information. I am further satisfied that providing access to the information would amount to disclosing it. 59. I am also satisfied that none of the exemptions in section 18(1) of the PPIP Act apply. This is because: a. release of the information in issue in response to the access application would not be directly related to the purpose for which the information was collected (which the Agency has identified in its notice of decision as being "police investigation"); b. the individuals whose personal information is contained in the records would not have been aware or been made aware that information of this kind is usually disclosed to another party; and c. the Agency does not believe that disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of an individual. 60. I am therefore satisfied that disclosure of the information would reasonably be expected to contravene information protection principle 11 under the PPIP Act. 61. I am satisfied that the Agency's reliance on clause 3(b) as a relevant public interest consideration against disclosure is justified." 1. The subsection headed "Consideration 3(f) - expose a person to a risk of harm or of serious harassment or serious intimidation" relevantly provides: "63. In its notice of decision, the Agency states: ...In my opinion the release of the information could expose persons to a risk of harm or of serious harassment or serious intimidation. Under the circumstances, I am of the view that there is an overriding public interest against disclosing the information that has been withheld, could jeopardise the safety of the person/victim as its release could escalate the situation. As such the provisions listed in Table 3(f) must be considered. 64. The Agency merely asserts that the release of the information could expose persons to a risk of harm or of serious harassment or serious intimidation because "its release could escalate the situation". 65. The Agency has not described how the disclosure of the information could reasonably be expected to escalate the situation, and how this escalation could reasonably be expected to amount to a risk of harm, serious harassment or serious intimidation. 66. In accordance with section 61(b) of the GIPA Act, the Agency must include in its notice of decision findings on the material questions of fact that justify the consideration of this clause. It must specifically address how this consideration is applicable to the information in issue. 67. Because the Agency has not done this, I am not satisfied that it has justified its consideration of clause 3(f)" 1. In the section headed "Conclusions" the Information Commissioner relevantly found that the respondent's decisions under review, including the redacted Event Report, are justified in relation to the considerations in cll 1(d), (e) and (g) and 3(a) and 3(b), and are not justified in relation to consideration in cl 3(f). The evidence of S/Sgt Reid 1. In his two statements Sen Sgt Reid dealt with the matters set out below. Confidentiality of information received by the NSWPF 1. S/Sgt Reid has been a serving police officer of the NSWPF for over 20 years. During this time he investigated many criminal offences which has involved taking statements from informants and victims of crime that want to report an incident. The NSWPF is reliant on the information and assistance provided by members of the public whether they be witnesses to incidents, victims of crime or the perpetrators themselves. The ability of the NSWPF to exercise its functions would be significantly diminished without information from the public. The information is provided to the NSWPF confidentially. In his experience, this information is provided on the understanding that the NSWPF will treat the information as confidential and certainly not disclose the information to the person that the information relates to unless the information is necessary for the purposes of a prosecution. In his opinion, the disclosure of this information could reasonably be expected to prejudice the future supply of this information as members of the public, fearing reprisals, will choose not to provide information or statements to NSWPF, or if they do provide information will limit the information that they provide so that they cannot be identified. Contact with Mr Curtis 1. Mr Curtis, who was the complainant to the NSWPF, objects to the provision of the Curtis Statement to the applicant. Provision of witness statements 1. Contrary to the assertion of the applicant, in his experience "when a statement is taken, the (NSWPF) provide either an express or implied undertaking that the statement will be kept confidential and will only be used in criminal proceedings". If a witness or member of the public was told or was aware that any report that he or she makes will be available to any person including the subject of the complaint, it would be likely that the free flow of Information to the NSWPF would be prejudiced as people may be scared to report a crime or if they did report a crime they would do so anonymously as they may fear the consequences of the report. In his view, it may also affect a witnesses' candour when they report crimes to the NSWPF. In his experience, the purpose of a witness statement is to receive and record a report of an incident observed by a witness. These reports are of critical importance in the NSWPF investigating crimes in that they record in detail a person's observations. In his experience, witness statements are treated confidentially by the NSWPF and only released when they are required to be following the prosecution of a person, and in accordance with orders made by a Court for the service of evidence. In his experience, the jurat in an unsworn statement does not amount to an acknowledgement that the statement can be freely distributed to any person that seeks a copy. 2. In cross-examination, S/Sgt Reid gave the following evidence: 1. he agreed that there was nothing in the Code which supported his evidence "when a statement is taken, the (NSWPF) provide either an express or implied undertaking that the statement will be kept confidential and will only be used in criminal proceedings"; 2. he said there might be something in the Handbook which supported this evidence. The written submissions of the applicant 1. The applicant, after setting out relevant provisions of the GIPA Act and the CAT Act and applicable legal principles under these Acts, makes the following submissions to the Tribunal: 1. as to the application for an extension of time, he has demonstrated a reasonable excuse to justify an extension of time for review because there is clearly a causal connection between his psychological condition (and the other unfortunate circumstances which have compounded his difficulties) and the delay in filing his application. Further, there is no apparent prejudice to the respondent; 2. as to the considerations in cll 1(d), (e) and (g) of the table to s 14 of the GIPA Act, there is no evidence that what is contained in the Curtis Statement reveals "sensitive matters" as referred to by Smart AJ in Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 at [26]. Further, there is no evidence that the Curtis Statement is confidential or was made confidentially. The release of the Curtis Statement could not reasonably be expected to prejudice the supply of confidential information that facilitates the effective exercise of the NSWPF's functions; 3. as to the considerations in cl 3(f) of the table to s 14 of the GIPA Act, there is no risk of harm, serious harassment or serious intimidation if the information were released to the applicant. He last had any dealings with Mr Curtis at a mediation on 21 March 2018 and does not want to have any further dealings with him. Further, the gist of the allegations of Mr Curtis were put to him during his interview with police; 4. as to the Code extracts and the Handbook extracts, they should be admitted into evidence because they refute S/Sgt Reid's evidence "when a statement is taken, the (NSWPF) provide either an express or implied undertaking that the statement will be kept confidential and will only be used in criminal proceedings". The written submissions of the respondent 1. The respondent, after setting out relevant provisions of the GIPA Act and the applicable legal principles under the GIPA Act, makes the following submissions: 1. as to the application for an extension of time, the applicant does not have a reasonable excuse for the delay in lodging his application because there is no causal connection between the matters that the applicant has explained in his statutory declaration dated 5 February 2019 and the delay or the late lodgement of the application; 2. as to the considerations in cll 1(d), (e) and (g) of the table to s 14 of the GIPA Act, the disclosure of information provided to the NSWPF in circumstances other than in a prosecution will inevitably affect the flow of information with informants concerned about the disclosure of the information to the people that it relates to; 3. as to the considerations in cll 3(a) and (b) of the table to s 14 of the GIPA Act, the redacted Event Report contains personal information, and it could be reasonably expected that its disclosure would reveal that information; 4. as to the considerations in cl 3(f) of the table to s 14 of the GIPA Act, there is a reasonable expectation that disclosure of the personal information in each of the Curtis Statement and the unredacted Event Report could place individuals at risk at least of serious intimidation or serious harassment because these documents make clear that the alleged conduct from the applicant has placed particular individuals in a state of fear, and at the very least has caused them a grave sense of torment; 5. as to the Code extracts and the Handbook extracts, they should not be admitted into evidence, because the Code is no longer current having been superseded in February 2019, and the Handbook has been replaced by a newer version which no longer has some of the Handbook extracts. Jurisdiction 1. The Tribunal has jurisdiction to review the First and Second Decisions under s 100 of the GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): ADR Act, ss 9 and 63 read together with s 30 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). The Tribunal may affirm the decision: ADR Act, s 63(3)(a). The agency has the burden of establishing to the Tribunal that the decision it made is justified: GIPA Act, s 105. Relevant legislation GIPA Act 1. The object of the GIPA Act is to open government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (s 3(1)(a)), giving members of the public an enforceable right to access to government information (s 3(1)(b)), and restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c)). An "agency" includes "public office", which relevantly includes the respondent: s 4(1)(d), Sch 4, cl 3. 2. There is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure: s 5. A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure: s 9. 3. There is a general public interest in favour of the disclosure of government information: s 12. The Note to this section contains examples of public interest considerations in favour of disclosure, including: 1. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. 2. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. 1. There is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure which on balance outweigh the public interest considerations in favour of disclosure: s 13. The public interest considerations against disclosure are set out exhaustively in s 14 in a Table, which relevantly includes: 1 Responsible and effective government 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 (whether in a particular case or generally): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, … (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 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 … … (f) expose a person to a risk of harm or of serious harassment or serious intimidation, 1. "Personal information" relevantly means information about an individual whose identity is apparent or can reasonably be ascertained from the opinion: s 4(2) and Sch 4, cl 4. "Reveal information" means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure): s 4(2) and Sch 4, cl 4. 2. The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table: s 14(3). 3. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles in s 15 which relevantly include agencies must have regard to any relevant guidelines issued by the Information Commissioner: s 15(b). 4. An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that the information includes personal information about the person, the person may reasonably be expected to have concerns about the disclosure of the information, and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information: s 54(1) and (2)(a). 5. 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 into account specified factors, which are defined as the personal factors of the application, and which relevantly include the applicant's identity and relationship with any other person: s 55(1)(a). 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 cll 2 to 5 (but not cl 1, 6 or 7) of the Table in s 14. 6. An agency may decide an access application for government information by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information: s 58(d). Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must relevantly state the agency's reasons for its decision, and the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based: s 61(a) and (b). 7. An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) where relevantly the agency has decided to refuse to provide access to the deleted information: s 74. 8. The decision of an agency in respect of an access application to refuse to provide access to information is a reviewable decision: s 80(d). 9. A person aggrieved by a reviewable decision of an agency is entitled to have the decision reviewed by the Information Commissioner: s 89(1). On a review of such a decision, the Information Commissioner may make such recommendations to the agency about the decision as the Information Commissioner thinks appropriate: s 92(1). 10. If the decision is not the subject of review by the Information Commissioner, an application for administrative review to the Tribunal can be made at any time up to 40 working days after the applicant is notified of the decision: s 101(1). If the decision is the subject of review by the Information Commissioner, an application for administrative review to the Tribunal can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review: s 101(2). 11. The Tribunal may, on application by a person wanting to make an application for administrative review out of time, extend the time for the making of such an application by the person if the Tribunal is of the opinion that the person has provided a reasonable excuse for the delay in making the application: s 101(4). The time for making an application for administrative review may be extended under s 101 even if that time has expired: s 101(6). Guidelines of the Information Commissioner 1. GIPA Guideline 4: Personal Information as a public interest consideration under the GIPA Act dated 5 November 2018 issued by the Information Commissioner relevantly provides: "1.2 Information that can be classed as personal cannot be listed exhaustively. Below are common examples of information that generally falls into the category of personal information for the purposes of the GIPA Act: Common examples of personal information: (NB this is not an exhaustive list)  a person's name;  personal address and contact details, such as email and phone numbers;  information about a person's family life;" PPIP Act Part 2 Division 1 (ss 8-19) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) contains information protection principles. Section 12 deals with retention and security of personal information and relevantly provides: 12 Retention and security of personal information A public sector agency that holds personal information must ensure: … (c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and (d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information. Section 18 deals with limits on disclosure of personal information and provides: 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. "Public sector agency" relevantly means the NSW Police Force: s 3, definition of "public sector agency", para (e). "Personal information" relevantly means information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion: s 4(1). Police Regulation 2015 1. Clause 76 of the Police Regulation 2015 relevantly provides: 76 Confidential information (1) A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone. … (3) Nothing in this clause operates so as to impede the due performance of operational police duties … Applicable legal principles under the GIPA Act Applications to extend time to lodge an application 1. The question of whether the applicant has provided a reasonable excuse for the delay, is the key question which the Tribunal must form an opinion about: Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [18]. 2. The applicant must establish a causal connection between the excuse and the delay: Thomson v Sydney Trains [2015] NSWCATAD 257 at [31]. 3. Other questions, such as the merits of the application for review, any prejudice to either party or the public interest are not relevant, except, possibly, to the exercise of the Tribunal's discretion if it does find that the applicant has provided a reasonable excuse for the delay: Turner at [18]; Neary v Commissioner of Police, NSW Police Force [2015] NSWCATAD 223 at [25]. The process for deciding whether to grant access to information 1. The process for deciding whether to grant access to information under the GIPA Act is to identify the factors in favour of granting access; then to identify the public interest factors against such disclosure (being only those items set out in the table in s 14). Then it is necessary to allocate weight to each of the positive and negative factors. This is followed by a process of balancing the positive and negative elements to reach a decision as to whether access should be granted: Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [9]. "could reasonably be expected to …" in the table in s 14 1. The words "could reasonably be expected to" in the table in s 14 have been held 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". The public interest considerations against disclosure in cll 1 and 3 of the table require an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed: Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42]. 2. In Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 at [26] and [37] the Appeal Panel stated: "26 … the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case. ... … 37 … As explained, the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged. As we have noted previously, the agency does not dispute that a wide array of considerations, including subsequent history, might be considered at the section 13 stage. But it is necessary as we see it for the Tribunal to approach the section 13 stage with a properly informed appreciation of the case made by the agency at the section 14 stage." "prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions" in cl 1(d) of the table in s 14 1. In Camilleri cll 1(d) and 1(f) of the table in s 14 of the GIPA Act were under consideration when considering the question of law of whether, for the purposes of determining whether there is an expectation of confidentiality in respect of communications with the police, there is a relevant distinction between informers and callers seeking police assistance. The Appeal Panel at [44]-[45] stated: "44 The submissions also referred to the observations of Smart AJ in Simring at [26] and authorities cited there. There the key issue was whether the disclosure of the information constituted an unreasonable disclosure of personal information of people who had given information to the police. Smart AJ said: 69 When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police. This was not a point raised in the reasons of the Tribunal or the Appeal Panel. It is a point for the future. On the other hand there is a strong public interest in access to information held by a government agency. 45 We agree with the agency's submission. In our view, the approach taken by the Tribunal in the past did not draw a clinical distinction between 'informants' and other people when dealing with the issue of the expectation of confidentiality. Essentially the conditions as to confidentiality are set by the organisation responsible for the phone-in facility, whether it is a help line for people seeking counselling or an emergency services number. In our view, it is of little, and perhaps no, consequence that the caller does not care whether confidentiality is afforded to their communication." "expose a person to a risk of harm or of serious harassment or serious intimidation" in cl 3(f) of the table in s 14 1. The issue for determination is whether release of the information would expose people to a "risk of harm or of serious harassment or serious intimidation". It is not necessary to decide whether such harm is likely. It is sufficient that there is a risk of it: Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 at [49]; Miskelly at [94]. 2. "Harm", "serious harassment", and "serious intimidation" are not defined in the GIPA Act. Their meaning received extensive judicial consideration by the Tribunal in AEZ v Commissioner of Police, NSW Police Force [2013] NSWADT 90. Each is to be seen as a separate matter to be considered: AEZ at [89]; Miskelly at [95]. 3. As to "harm", the Tribunal has held that the meaning of harm should be confined to a real and substantial detrimental effect on a person, rather than on their business interests. A detrimental effect may be to a person's physical, psychological or emotional wellbeing: AEZ at [85]; Miskelly at [96]. Mere discomfort or tension is not ordinarily enough: Ermel v Department of Finance and Services [2013] NSWADT 183 at [90]; Miskelly at [105]. 4. As to "harassment", the Tribunal has held that "harassment" requires a consideration of how the conduct complained of is experienced by the person alleged to be harassed, and is concerned with whether that person was offended, worried, tormented, distressed or harassed by the conduct. The assessment of the impact of the conduct on the individual concerned is an objective one, although particular circumstances and vulnerabilities relating to that individual may be taken into account when making that assessment: AEZ at [89]; Miskelly at [98]. 5. As to "intimidation", the Tribunal has held that "intimidation" is closely related to the concept of "harassment" and is "to make timid, or inspire with fear, overawe, cow": AEZ at [91]; Miskelly at [99]. 6. The requirement that the "intimidation" or "harassment" be "serious" means the decision-maker must be satisfied that release of the information could reasonably expose a person to intimidation or harassment that is "heavy, weighty or grave, and not trifling or transient": AEZ at [94]; .Miskelly at [100]. Whether time should be extended for the making of the application 1. I find that the applicant has established a reasonable excuse to justify an extension of time for the making of the application with s 101(4) of the GIPA Act. The evidence of Dr Smith, who is the applicant's treating psychiatrist, is that the applicant demonstrates diagnostic criteria for a chronic Post Traumatic Stress Disorder, and that the applicant at his most recent examination prior to 16 November 2017 reported ongoing impairments with his concentration, and difficulty in retaining information. This evidence shows a causal connection between his psychological condition and the delay in filing the application. Further, in the circumstances, the delay of 172 days between 8 June 2018, being 40 working days after the First Decision, and 27 November 2018 in the case of the Curtis Statement, and the delay of 92 days between 27 August 2018, being 20 working days after the Review Decision, and 27 November 2018 in the case of the unredacted Event Report, was not substantial, and there is no evidence that the respondent has suffered any prejudice. Whether the Code extracts and the Handbook extracts should be admitted into evidence 1. I find that the Code extracts and the Handbook extracts should be admitted into evidence. S/Sgt Reid referred to each of the Code and the Handbook in giving his evidence. The public interest considerations in favour of disclosure 1. I find that the following considerations identified in the Review Decision are public interest considerations in favour of disclosure: 1. the statutory presumption in favour of the disclosure of government information; 2. the general right of the public to have access to government information held by agencies; 3. the applicant's knowledge that Mr Curtis made the complaint, and of certain personal information relating to them through the gist of the allegations in each of the Curtis Statement and the unredacted Event Report having been put to him during his interview. 1. I find that each of these considerations should be given some weight. The public interest considerations against disclosure The considerations in cll 1(d), (e) and (g) of the table to s 14 1. I find that the considerations identified in the Review Decision at [32] are public interest considerations against disclosure. These factors are supported by the reasoning in Simring at [26]. They are also supported by cl 76 of the Police Regulation 2015. I am satisfied that both the Curtis Statement and the unredacted Event Report contain sensitive matters disclosed by Mr Curtis and that the information was provided by Mr Curtis in confidence that is to be inferred from the circumstances, being the report of a criminal offence. These considerations should be given strong weight. The considerations in cll 3(a) and (b) of the table to s 14 1. I find that for the reasons in the Review Decision at [51] both the Curtis Statement and the unredacted Event Report contain personal information. While the substance of Curtis Statement and the unredacted Event Report, but not the personal information contained therein, has been disclosed to the applicant during his interview, this information has not been publicly revealed. For the reasons in the Review Decision at [55]-[59] I find that disclosure of this personal information to the applicant would reasonably be expected to contravene s 18 of the PPIP Act. These considerations should be given strong weight. The considerations in cl 3(f) of the table to s 14 1. I am not satisfied that there is any evidence that disclosure of the Curtis Statement and the unredacted Event Report could place any person at a risk of serious intimidation or serious harassment. There is nothing in these documents suggesting that there is any such risk. Balancing the public interest considerations in favour of and against disclosure 1. I find that the public interest considerations against disclosure of the Curtis Statement and the unredacted Event Report strongly outweigh the public interest considerations in favour of disclosure of this information. Accordingly, there is an overriding public interest against disclosure of this information. The correct and preferable decision 1. I am satisfied that the correct and preferable decision in relation to the First Decision is to refuse access to the Curtis Statement to the applicant, and in relation to the Second Decision to provide access to the redacted Event Report to the applicant. Decision 1. I extend time for the making of the application until 27 November 2018. 2. I admit the Code extracts and the Handbook extracts as evidence in the proceedings. 3. I affirm the First Decision so far as it refuses access to the Curtis Statement to the applicant, and Second Decision so far as it provides access to the redacted Event Report to the applicant. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 26 June 2019 - applicant's name 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: 26 June 2019