Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dezfouli v Commissioner of Police [2020] NSWCATAD 103 Hearing dates: 20 January 2020 Date of orders: 14 April 2020 Decision date: 14 April 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: J Lonsdale, Senior Member Decision: (1) The Tribunal notes that the information sought by the applicant referred to as Event Report E64057336 was released to the applicant prior to the hearing. (2) The decision of the respondent is otherwise affirmed. Catchwords: ADMINISTRATIVE LAW – government information – access application – prejudice supply of information – reveal identity of informant – personal information – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Freedom of Information Act 1989 (NSW) Cases Cited: Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11 Dezfouli v NSW Police Force [2018] NSWCATAD 264 Flack v Commissioner of Police, NSW Police Force [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 Miskelly v Secretary Department of Education [2019] NSWCATAD 48 NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55 Robinson v Commissioner of Police [2014] NSWCATAP 73 Sawyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 61 Selby v Commissioner of Police (NSW) [2013] NSWADT 61 UC v Commissioner of Police, NSW Police [2005] NSWADT 272 Category: Principal judgment Parties: Saeed Dezfouli (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (self-represented) Crown Solicitor (Respondent) File Number(s): 2019/00178051 Publication restriction: Order under section 64(1) of the Civil and Administrative Tribunal Act 2013 and section 107 of the Government Information (Public Access) Act 2009 that the evidence, submissions and record of that part of the proceeding conducted in private on 15 January 2020 is not to be released to either the applicant or the public. Reasons for decision The access application 1. This is an application under s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for administrative review in respect of a notice of decision of the respondent dated 9 August 2019 (notice of decision). 2. The applicant made an access application to the respondent under the GIPA Act on 14 December 2018 requesting access to "a copy of my entire event reports". On 19 December 2018, the applicant agreed to refine the scope of that access request to Event Reports relating to the applicant from 1 January 2016 onwards. The respondent issued the applicant with a decision dated 25 January 2019 refusing access to the information requested. The applicant sought a review from the Tribunal and orders were made on 9 July 2019 remitting the matter to the respondent for re-determination. 3. The respondent issued the applicant with the notice of decision as a supplementary decision. The notice of decision identified four Event Reports contained in the respondent's Computerised Operational Policing System (COPS) as being within the scope of the access application (those records being reports E62062334, E64057366, E68995404 and E66811928). 4. By the notice of decision, the respondent determined to provide an unredacted copy of Event Report E62062334 on the basis it had previously been released to the applicant under an earlier access application. Event Reports E68995404, E66811928, and E64057366 were released in part because the respondent redacted certain information in respect of which it determined there were overriding public interests against disclosure. 5. Prior to the hearing, the respondent revised its position regarding Event Report E64057336 and provided an unredacted copy of that Event Report to the applicant. At the hearing, the applicant confirmed he had received an unredacted copy of Event Report E64057336. At the request of the respondent, I ordered the reviewable decision be amended to reflect the provision of Event Report E64057336. Scope of review by Tribunal 1. Section 80 of the GIPA Act sets out the reviewable decisions that may be the subject of review by the Tribunal. It was agreed at the hearing that the reviewable decisions in this matter are the respondent's decisions: 1. that it does not hold further information other than that identified in the notice of decision (s 80(e) of the GIPA Act); and 2. to refuse to provide access to the information redacted from Event Reports E68995404 and E66811928 (released material) (s 80(d) of the GIPA Act). Confidentiality of part of hearing 1. Section 107(1) of the GIPA Act provides the Tribunal must ensure that information in which there is an overriding public interest against disclosure is not disclosed. Section 107(2) of the GIPA Act provides that the Tribunal must receive evidence and hear argument in the absence of the applicant and the public, if necessary, to prevent the disclosure of such information. 2. Accordingly, I conducted part of the proceedings in the absence of the applicant to consider the unredacted copies of Event Reports E68995404 and E668119280, which had been provided to the Tribunal on a confidential basis. Material before the Tribunal 1. The applicant did not file any written submissions and did not seek to rely on any evidence at the hearing. The applicant made oral submissions and cross examined the witnesses of the respondent. 2. The respondent filed and served written submissions and affidavits of Mr Matthew Smith, Senior Advisory Officer, NSW Police and Detective Inspector Anthony Agnew, NSW Police. The respondent relied on these affidavits at the hearing. Mr Smith and Detective Inspector Agnew gave evidence at hearing. The respondent also relied on the unredacted copies of Event Reports E68995404 and E668119280 during the confidential part of the hearing. The GIPA Act 1. Section 5 of the GIPA Act provides a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. Section 9(1) of the GIPA Act gives the applicant a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information. 2. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure. 3. Section 13 of the GIPA Act provides there will only be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 14 contains a table (the Table) which sets out the only public interests considerations against disclosure that can be taken into account. 4. Section 15 of the GIPA Act provides that determinations by agencies are to be made in accordance with the principles set out in subs 15(a) to (e) of the GIPA Act. Those principles include promotion of the objects of the GIPA Act and a provision that disclosure cannot be made subject to any conditions on the use or disclosure. 5. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision. 6. Relevantly for this matter, cl 4 of Schedule 4 to the GIPA Act defines personal information to mean "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion". Respondent's decision 1. In the notice of decision, the respondent relied on clauses 1(d), 2(a), 2(b) and 3(a) of the Table. Clauses 1(d), 2(a) and 2(b) each, relevantly, provide 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)": "1 Responsible and effective government … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions … 2 Law enforcement and security … (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, …" 1. Clause 3(a) of the Table provides, relevantly, there is a "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": "3 Individual rights, judicial processes and natural justice … (a) reveal an individual's personal information ..." Consideration of whether the respondent holds further information 1. The applicant contends there are reasonable grounds to believe that the respondent holds further information relevant to the access application. The respondent's obligation to search for information is set out in s 53 of the GIPA Act and requires the respondent to undertake "reasonable searches". Where an agency identifies information that it holds and provides or refuses access to that information (but it does not make an explicit decision that it holds no further information) it can be implied the agency has made a decision that it holds no further information relevant to the access application (Robinson v Commissioner of Police [2014] NSWCATAP 73 at [8]). 2. The affidavit of Mr Smith states that COPS is a method of capturing, storing and analysing operational information and intelligence on an "organisation-wide basis" and that a COPS event is created when an officer enters information into COPS, which gives that event a unique number. Mr Smith also states that, once a person's name is recorded in COPS, all future records should be linked to that initial record. 3. When I asked the applicant why he considered the searches undertaken by the respondent were not adequate, he submitted that he considers it likely there would be information regarding the applicant held by, for example, the Fixated Persons Unit and that the released material does not contain any material from that unit. In his cross examination of Mr Smith, the applicant asked if Mr Smith consulted with other units of Police, such as the Fixated Persons Unit, when conducting his searches of COPS. Mr Smith stated he did not consult with other units because the scope of the access application itself was limited to access to Event Reports, which would only come from a search of COPS. 4. When I asked the applicant what searches he considered would be appropriate for his access application, the applicant submitted he wanted a broader search and the release of physical evidence. The applicant provided the example of a letter he wrote to the President of the United States, which is referred to in Event Report E68995404, but was not released. 5. When I asked Mr Smith if the only repository for Event Reports held by the respondent was COPS, Mr Smith stated this was the case. When I asked Mr Smith how he considered the searches carried out by the respondent addressed the scope of the applicant's (refined) access application, Mr Smith stated that the searches were made using the applicant's name with a filter to exclude Event Reports prior to 1 January 2016. 6. The applicant's (refined) access application seeks a "copy of event reports that relate [to the applicant] from 1 January 2016 onwards". I accept the evidence of Mr Smith that COPS is the only repository of information comprising Event Reports. While the applicant has identified additional information the respondent may hold relating to the applicant, that information is not an "Event Report" and is therefore outside the scope of the access application. 7. Based on the material before me at the hearing, I find the searches carried out by the respondent were reasonable and the respondent holds no further information relevant to the access application. Consideration of decision to refuse access in part Reasonably be expected 1. Each of clauses 1(d), 2(a), 2(b) and 3(a) of the Table require consideration of whether disclosure of the information "could reasonably be expected to" have one or more of effects set out in the relevant clause. Before I consider the relevant public interest considerations in this matter, I will set out the tests relevant to whether something could be reasonably expected to have the relevant effect. 2. The words "could reasonably be expected to" 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": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42]. While it must be a 'real' risk, the chance of it materialising need not be more probable than not (Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36]). The phrase "'simply calls for an objective assessment, on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact" (Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]). Clause 1(d) - prejudice the supply to an agency of confidential information that facilitates the effective exercise of agency's functions 1. The information redacted on the basis of cl 1(d) is said by the respondent to be: 1. In respect of Event Report E68995404, the name, sex and contact details of the "person reporting"; and 2. In respect of Event Report E66811928, the name, sex and contact details of the "person reporting" as well as the name and contact details of a person identified as an informant in the section entitled "narrative details". 1. The test is whether the agency will be able to obtain such confidential information from relevant persons in the future if the information in question is disclosed (Selby v Commissioner of Police (NSW) [2013] NSWADT 61) and is to be determined at a broad operational level (Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80) (Camilleri). 2. In Camilleri, the Appeal Panel held that the question as to whether information is "confidential information" is to "be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The enquiry "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it". 3. "Prejudice" under the GIPA Act has been held to have its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from" (Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]). 4. As cl 1(d) is concerned with the future supply of confidential information, in determining whether disclosure would prejudice the supply of information, the test is not whether the particular person would, in future, refuse to supply that information but whether information of the kind in question facilitates the exercise of the respondent's functions and, whether the disclosure of such information could reasonably be expected to prejudice the supply of such information (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [52]). 5. The evidence from Detective Inspector Agnew was that the respondent relies on members of the public volunteering information and that, in his experience, it is not uncommon for members of the public to be reluctant to assist the respondent with its investigations. Detective Inspector Agnew's affidavit states that there is a general expectation that information provided to the respondent in the course of an investigation will be "held in confidence and only used for law enforcement purposes and any ensuing criminal proceedings". 6. I have considered the redacted information. I accept that the respondent's practice is to treat such information as confidential. Based on the nature of the redacted information, I find the information is information that facilitates the effective exercise of the respondent's functions. I am also satisfied on the basis of the respondent's evidence that disclosure of information of this nature could reasonably be expected to prejudice the supply of such information to the respondent at an operational level as there is a real risk that people might not be prepared to supply information if they hold concerns about it becoming broadly available. In my view this consideration should be given significant weight. 7. During the hearing, the applicant submitted the respondent "over-uses" the GIPA Act to refuse access applications and should be more transparent and open in respect of its conduct as an agency. The applicant provided no evidence to support his view of "over-use" of the GIPA Act by the respondent. Given the extent to which information has been made available to the applicant in this matter, I find that the facts in this matter do not support the applicant's submission regarding over-use of the GIPA Act by the respondent. 8. The applicant's application to the Tribunal indicates that the redacted information "pertains to" him and should be disclosed to him. While the applicant is a person documented in the Event Reports (in the case of Event Report E68995404 the applicant is the person of interest and in the case of E66811928 the applicant is the person who made allegations of unlawful conduct against another person), the information redacted for the purpose of cl 1(d) of Table is limited to the names and contact details of persons who provided information to the respondent for the purpose of the investigation. I consider that the public interest (set out above) outweighs the interest in favour of disclosure in this instance. 9. When asked by the Tribunal why the applicant would like the information, the applicant indicated he requires it for a book he proposes to publish regarding his treatment by various agencies. I consider this consideration should be given minimal weight as a factor in favour of disclosure given the extent to which other information in the Event Reports has been provided and is available for use for the purpose identified by the applicant. 10. I consider the cl 1(d) public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure. Accordingly, I have determined that access should not be granted to information redacted on the basis of cl 1(d) of the Table. Clause 2(a) – reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant 1. The information redacted on the basis of cl 2(a) of the Table is the same as that redacted on the basis of cl 1(d) of the Table identified above. 2. I am satisfied that the information redacted comprises the name and contact details of persons who provided information to the respondent for the purposes of the respondent carrying out investigations and are, therefore informants for the purposes of cl 2(a). The respondent submits that the release of the information would reveal the identity of informants. 3. A guarantee of anonymity is essential to people's willingness to provide information to the police. This was recognised in Miskelly v Secretary Department of Education [2019] NSWCATAD 48 in which the Tribunal held at [127] : "If informants were not confident that their identities would be protected it could reasonably be expected that they would be reluctant in future to supply confidential information… Others would be likely to be deterred from reporting if identity details were disclosed." 1. In NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel of the Administrative Decisions Tribunal held at [47] that an "informant" is not restricted to police informers or people who might be involved in the conduct of interest, but bears a wider connotation of a person who gives information. The evidence outlined above supports a finding that informants would be discouraged from providing essential information to police if information which could reveal their identity was disclosed. 2. I have considered the submissions of the applicant outlined above that the information "pertains to" him as well as the purpose for which the applicant seeks the information. For the same reasons set out above in relation to cl 1(a) of the Table, I do not consider any of these considerations or factors (individually or together) outweigh the considerations against disclosure. 3. I consider that the public interest considerations against disclosure in cl 2(a) of the Table, on balance, outweigh the public interest considerations in favour of disclosure. Accordingly, I have determined that access should not be granted to the information redacted on the basis of cl 2(a) of the Table. 4. The respondent's written submissions also identify consideration of the applicant's previous behaviour and the risk of harm or of serious harassment or serious intimidation as a relevant personal factor that should be taken into account as a factor against disclosure for the purpose of cl 2(a) of the Table. Section 55(3) of the GIPA Act provides the personal factors of an 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 …". 5. The respondent's written submissions refer to two previous decisions of the Tribunal (Dezfouli v Justice Health & Forensic Mental Health Network [2018] NSWCATAD 11 and Dezfouli v NSW Police Force [2018] NSWCATAD 264) involving the applicant. These decisions consider the risk of harassment the applicant may present for the purpose of cl 3(f) of the Table. In addition to the respondent's written submissions, the affidavit of Detective Inspector Agnew contains evidence regarding his belief, based on the applicant's history, that the applicant will use information about individuals that is released to harass those individuals. 6. As I have formed the view that the relevant redacted information should not be released on the basis of cl 2(a) of the Table, there is no need to consider the applicant's history as a factor against disclosure pursuant to s 55(3) of the GIPA Act in this matter. Clause 2(b) - reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law 1. The information redacted on the basis of cl 2(b) is limited to Event Report E68995404. The information redacted is said by the respondent to be information that identifies police methodologies relating to the investigation of a white powder, the relevant risk classification and actions arising. 2. In Desmond v Commissioner of Police, New South Wales Police Service [2003] NSWADT 231 at [17], the Senior Member stated in relation to the similar exemption in cl 4(1)(e) of Schedule 1 to the former Freedom of Information Act 1989 (NSW), this consideration operates: "… to protect the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. The basis of this exemption is a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods". 1. An actual contravention of the law is not required to exist in order to establish the ground (UC v Commissioner of Police, NSW Police [2005] NSWADT 272). 2. The respondent submitted the redacted information should be not released as it would disclose or confirm police methodology in the response to suspicious substances which could be reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law. The respondent submits this is particularly the case where the effect of s 15(e) of the GIPA Act is that the relevant disclosure would be, in effect, to the world at large. 3. At the hearing, Detective Inspector Agnew stated that the contents of the relevant policy were confidential and not known to the general public. Inspector Agnew's affidavit states that redacted information reveals matters relevant to: "confidential police methodology regarding the investigation of suspicious white powders, namely the system used to classify incidents involving [such] powders and police responses in relation to that classification [and] I am concerned that the revelation of this methodology could prejudice police investigations … [f]or example, a person armed with this knowledge could adopt measures designed to subvert police investigation of suspicious white powder …" 1. In considering a somewhat similar issue, the Tribunal in Sawyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 61 at [53] stated: "I am satisfied that disclosure … would disclose some information relating to methodology used in police pursuits and that it is not fanciful or contrived to expect that such disclosure could prejudice the prevention, detection or investigation of a contravention or possible contravention of the law by disclosing information which could be to the advantage of persons lawfully pursued by police." 1. I accept the evidence of Detective Inspector Agnew that the content of the relevant policy is not publicly known. I have considered the redacted information and am satisfied that it identifies actions taken in respect of a suspicious white powder following the involvement of the NSW Police Force, including the classification of the powder under the policy, the level of risk attributed to the powder and certain actions arising from that classification. I consider that disclosure of the redacted information would disclose information relating to confidential methodology used by the respondent and that it is not fanciful or contrived to expect that such disclosure could prejudice the prevention, detection or investigation of a contravention or possible contravention of the law by disclosing information which could be to the advantage of persons who may wish to send or leave hazardous materials (or materials that may present as being hazardous) to offices, public places and the like. I also consider this may cause detriment or disadvantage to the prevention, detection or investigation of a contravention or possible contravention of the law. 2. For the reasons identified in respect of cl 1(d) of the Table, I consider the applicant's submissions that the relevant information "pertains to" him and his stated interest in publishing a book should be given minimal weight. 3. I consider that the public interest considerations against disclosure in cl 2(b) of the Table, on balance, outweigh the public interest considerations in favour of disclosure. Accordingly, I have determined that access should not be granted to information redacted on the basis of cl 2(b) of the Table. Clause 3(a) - reveal an individual's personal information 1. The information redacted on the basis of cl 3(a) is limited to Event Report E66811928. The information redacted is said by the respondent to be information that identifies an individual's personal information name, sex, home address, and telephone numbers. 2. The respondent submits there is a public interest against the disclosure of this information, as it could reasonably be expected to reveal the personal information of the individual concerned (being a person who was relevant to the respondent's investigations at the time). The respondent submits the personal information has not been publicly disclosed and disclosure to the applicant would therefore "reveal" that individual's personal information (see Sch 4, cl 1 of the GIPA Act). 3. I have considered the unredacted information and am satisfied the respondent has accurately described the redacted information in issue and that the redacted information is personal information of the individual concerned. I find that the information is not publicly available. I find that the information is not limited to non-personal information about an individual for the purposes of cl 4 in Sch 4 to the GIPA Act. 4. While the applicant considers the redacted information "pertains to" him, it only does so to the extent that the Event Report relates to the applicant as outlined above. Further, the information redacted on the basis of cl 3(a) is limited to the personal information outlined above and the applicant has been provided with other information in the Event Report. In my view, this consideration in favour of disclosure should be given minimal weight when balanced against considerations relevant to revealing the personal information comprised in the redacted information. 5. I have also considered the applicant's wish to use the redacted information in a book he wishes to publish. I consider consideration in favour of disclosure should be accorded minimal weight given the extent to which other information in the Event Reports has been provided and is available for use for the applicant's stated purpose. 6. I consider that the public interest considerations against disclosure in cl 3(a) of the Table, on balance, outweigh the public interest considerations in favour of disclosure. I have determined that access should not be granted to information redacted on the basis of cl 3(a) of the Table to s 14 of the GIPA Act. Conclusion 1. The Tribunal notes that the information sought by the applicant referred to as Event Report E64057336 was released to the applicant prior to the hearing. 2. The decision of the respondent is otherwise affirmed. I therefore make the following orders. 1. The Tribunal notes that the information sought by the applicant referred to as Event Report E64057336 was released to the applicant prior to the hearing. 2. The decision of the respondent is otherwise 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: 14 April 2020