Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McCrystal v Commissioner of Police [2020] NSWCATAD 122 Hearing dates: 5 December 2019, 7 February 2020 Date of orders: 05 May 2020 Decision date: 05 May 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: In respect of both proceedings (1) The decision of the respondent dated 14 June 2019 is set aside in part. (2) The respondent is to release the information in accordance with the findings in column 3 of the Table that appears at paragraph [60] of these reasons for decision. (3) The decision is otherwise affirmed. Catchwords: ADMINISTRATIVE LAW – Freedom of Information - Government Information (Public Access) Act -– GIPA – weight of evidence – public interest considerations against disclosure – balance of personal factors of applicant in favour of release Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Freedom of Information Act 1989 (Repealed) Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 Mannix v Department of Education and Communities [2014] NSWCATAD 35 Texts Cited: None cited Category: Principal judgment Parties: Lee McCrystal (Applicant) Commissioner of Police (Respondent) Information Commissioner (Intervenor) Representation: Counsel: T Wong (Applicant) M Seck (Respondent) Solicitors: Nicole Dunn Lawyers (Applicant) Norton Rose Fulbright (Respondent) C Higgins (for Information Commissioner) File Number(s): 2018/00279616; 2018/00314575 Publication restriction: Nil REASONS FOR decision 1. This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act). Background 1. The applicant (Ms McCrystal) is a NSW Police Officer who was given a trial placement by her employer in the Coronial Support Unit (CSU). Initially Ms McCrystal made three applications for information held by the respondent concerning her employment during the period 2014-2016. These applications were made under the GIPA Act. All three applications were the subject of applications for administrative review by the Tribunal, the applications being brought by Ms McCrystal. One of these administrative review applications was finalised at the beginning of the hearing of the Tribunal. These reasons for decision concern the remaining two applications which were lodged in the Tribunal in September 2018 (2018/00279616) and October 2018 (2018/00314575). Those applications concerned decisions of the respondent under the GIPA Act dated 18 June 2018 and 3 August 2018 respectively. What the GIPA Act provides in respect of Government Information 1. The GIPA Act provides for the proactive release of government information, informal release of government information, as well as the formal release of government information. The Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects. 2. These principles are conveniently summarised in the case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 which provides at [7] - [10] 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner. 1. The GIPA Act has an objects provision at s 3, which includes a reference at s 3 (2) (a) that the legislation be applied so as to further those objects. 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 1. The GIPA Act The GIPA Act application process 1. In May 2018 the applicant lodged a request under the GIPA Act (Police Ref: 2018-2530 NCAT ref: 2018/27616) Ms McCrystal sought the following information: I formally request from the NSWPF ALL existing documents inclusive of reports, requests for advice, memorandums, notebooks/diary entries, notes for files, emails, correspondence, feedback reports, electronically stored information, any documents from which images or writing are capable of being produced, any paper or other material on which there is writing regarding myself, Senior Constable Lee McCrystal and the 1. NSWPF State Crime Command 2. NSWPF Deployment Unit, 3. NSWPF Injury Management Unit, 4. The Department of Forensic medicine, NSW Health Pathology, 50 Parramatta Rd, Glebe 2037 and 5. The Coronial Case Management Unit, 44-46 Parramatta Rd, Glebe 2037. 1. Subsequent to the above matter in July 2018 Ms McCrystal lodged a further GIPA Act application in 2018 with the respondent. (Police Ref: 2018-3440 NCAT ref: 2018/314575). Ms McCrystal sought the following information: A Deployment Unit Trial Placement Feedback Request (RMS No. D/2018/290814) was prepared by Sgt Judith WATSON from the Coronial Support Unit on 6/4/18 of which I have a copy. In this document Sgt Watson specifically refers to 'emails attached and attached email correspondence'. I request all the emails both sent and received by the member of the NSWPF, Sgt Judith Watson. I specifically request any and all of the documents and emails referred to on Page 1 under the heading, 'Conduct and Professionalism' where Sgt Watson refers to 'See emails attached' and also Page 2 under the heading, 'Additional Comments' where Sgt Watson states 'please see attached email correspondence'. I specifically request all of this information that is referred to in this report and all other documents related or attached to this Trial Placement Feedback Report. 1. In summary the respondent decided these matters, and determined that as the information sought were deliberations regarding Ms McCrystal's placement in the Coronial Support Unit, then the information enlivened a public interest consideration against disclosure under the Table to s 14 of the GIPA Act. The respondent decided that on balance sufficient weight attached to these considerations when having regard to the information in question, sufficient to tip the balance and override the general public interest consideration in favour of disclosure of Government information. 2. The main public interest considerations against disclosure that the respondent relied upon were those listed at Cl 1(e) and 1 (h) of the Table to s 14. Clause 1 (e) concerns information which if disclosed: could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)—: (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, 1. Clause 1 (h) concerns information which if disclosed: could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)—: (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 1. There were also some minor grounds concerning the personal information of third parties relied upon. 2. The relevant matters at clauses 1 and 3 of the Table to s 14 are set out below. 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)— (a) …, (b) …, (c) …, (d) …, (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, (f) prejudice the effective exercise by an agency of the agency's functions, (g) …, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 2 Law enforcement and security … 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 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, … 1. Following decisions made by the respondent on each application Ms McCrystal sought external review by the Information Commissioner. In summary (on matter 2018/3440 – NCAT - 2018/314575) the Information Commissioner upheld the general basis for withholding most of the information, but determined that on balance some of the grounds (cl 1 (h) and 3 (a) did not apply or did not apply to all of the information. However broadly whilst recommending that the respondent make a fresh decision, the basis for withholding most of the information (on lesser number of grounds) was upheld. 2. On the other matter 2018-2530 NCAT – 2018/279616) the Information Commissioner was only reviewing a decision where the respondent had decided to refuse to deal with the application because to do so would require an unreasonable diversion of resources. The Information Commissioner determined that this decision was not justified and recommended that the respondent make a new decision. The merits of releasing or withholding the information applied for on this claim (the substantive issues) were eventually dealt with by way of NCAT procedural directions and orders over the long period that the matter was before the Tribunal. There was a narrowing of the scope of material in dispute and consideration of a number of grounds which ultimately saw the respondent release a large amount of material (un-redacted) and an amount partially redacted. All the ancillary grounds concerning searches for information, unreasonable diversion of resources and related grounds fell away during this process. The result of this process being that the respondent ultimately made and relied upon a subsequent decision dated 14 June 2019 as the basis for the administrative review. 3. There were initially three applications and three administrative review requests. The third matter (2018/278769) settled on the first day of hearing and was disposed of by orders under s 55 (1) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The remaining matters: 2018/279616 and 2018/314575 were lodged with the Tribunal in October 2018. Jurisdiction 1. The decision under review is a reviewable decision in accordance with s 80 (c) and (d) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act. The Tribunal notes that the applications for review have been received within time. Administrative Review 1. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409. The hearing 1. The open hearing of the matter took place on 5 December 2019 with a confidential hearing under s 107 of the GIPA Act taking place on 7 February 2020. Section 107 provides a mechanism for the Tribunal to receive confidential evince and inquire into the withheld information as part of the review, in a confidential setting. The section provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of— (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. 1. Neither the applicant or her legal representatives or the Information Commissioner took any part in the confidential hearing. However all parties / participants in the open hearing were aware of the existence and purpose of the confidential hearing. When dealing with the confidential hearing I believe that consistent with the objects of the GIPA Act, the Tribunal should disclose the nature of the evidence and submissions to the extent possible, without compromising the information in dispute. This occurs in the table below. 2. In addition to the third review falling away the applicant in the days prior to hearing sought to further narrow the material in dispute. In this regard large tranches of the withheld material were no longer pressed by the applicant and the hearing was able to focus on two discrete sets of information. As the Tribunal understands it, these further concessions by the applicant arose in the context of obtaining legal representation in the days prior to the hearing of the matter. 3. Initially Ms McCrystal's Counsel sought to tender a statement of Ms McCrystal (dated 18 September 2019), but on the basis that she not be examined on it. When the Tribunal inquired as to the basis for the limited tender the response was that the applicant would not be reading her statement but sought to rely on it. The Tribunal accepted the applicant's reliance on the submissions of the Information Commissioner but noted the respondent's position that they be relied upon as part of the applicant's case in so far as they were a statement of the relevant legal principle. The tender of the statement was refused as it would be unfair to the respondent and reasons were given ex-tempore. Written material 2018/14575 Applicant's material 1. Ms McCrystal tendered a copy of the Trial Placement Feedback Report as exhibit 'A-1' in proceedings 2018/14575. Respondent's material 1. The respondent relied on the Notice of Decision of 14 June 2019 in so far as it related to these proceedings (Exhibit 'R-1') 2. The respondent relied on an open affidavit of M Smith and a Confidential Affidavit of M Smith sworn 29 January 2020 tendered in the confidential hearing and marked Exhibit 'RC-1'. 3. The respondent also relied upon an un-redacted copy of the partially withheld documents pages: 714 – 720 inclusive. Written material 2018/279616 Applicant's material 1. The applicant relied upon a bundle marked as 'A-1' which provides the applicant's position on the remaining documents in dispute in those proceedings. The bundle comprised a party - party email of 5 December 2019 clarifying that the following page numbers were relevant: * 231, 232, * 72, 73, * 143, 144, 145, 146, * 264, * 445, 446, * 313, 314, 315, 316, 317, * 323, 324, 325, 328, 329, * 19. In addition the relevant pages as provided by the respondent's decision in redacted form were reproduced and formed part of the exhibit. 1. The applicant also relied in part on the Information Commissioner's submissions as referred to at [22] above. Respondent's material 1. The respondent relied on the Notice of decision of 14 June 2019 in so far as it related to these proceedings (Exhibit 'R-1'). 2. The respondent also relied on their written submission of 14 June 2019 and submissions in reply of 25 October 2019. 3. The respondent filed and served an affidavit of M Smith sworn 14 June 2019 Exhibit 'R-2', and a confidential affidavit of deponent same date Exhibit RC2. Information Commissioner's material 1. The Information Commissioner exercised their right to appear and be heard in these proceedings (s 104 (1) GIPA Act). Detailed written submissions were filed and served initially addressing all three matters. The Information Commissioner's representative appeared and took part in the hearing. Applicant's submissions 1. There is no requirement for an applicant to file and serve evidence and material in a review under the GIPA Act. This is because the applicant is not privy to the exact details of the information in dispute (when withholding information is the basis of the review). The onus is on the respondent to justify their decision as set out in s 105. Section 105 (1) applies to the current proceedings. The section provides: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. Respondent's evidence at hearing Evidence of Matthew Smith 1. Mr Smith prepared an affidavit in the proceedings (R-2) and adopted it as true and correct in evidence in chief. 2. In cross examination Mr Smith advised that he had been in the Information Management Unit for three years. Mr Smith advised that he reviewed the documents which were subject of the 3 August 2018 decision even though he was not the decision maker. 3. His evidence was that he approached the assessment focusing on the words 'could reasonably be expected to' (have the effect) rather than utilising words 'could' (have the effect) when considering the approach to the public interest considerations against disclosure. 4. After some questioning of his knowledge of the background to the application and the employment placement issue the witness confirmed that in respect of [41] of his affidavit that the emails on page 281 of the documents related to a placement. Applicant's submissions at hearing 1. Ms McCrystal's counsel adopted the Information Commissioner's submissions concerning the principles under the GIPA Act to the extent that they favoured disclosure. 2. Counsel submitted that s 12 provided a general public interest in favour of disclosure. The information concerned Ms McCrystal's employment, it was her personal information and as such should be made available. 3. Counsel also submitted that access to the information in question might also assist Ms McCrystal in understanding why the respondent decided not to continue her employment. 4. There were three groups of information that Ms McCrystal was seeking. The first category was information concerning her placement in the Coronial Support Unit. The second category (concerning investigations) had subsequently been abandoned. The third Category concerned her on the job feedback. 5. The applicant's counsel submitted that as the GIPA Act is about the openness and transparency (of Government) then the balancing exercise should go to the applicant's favour. 6. Counsel also submitted that in respect of the respondent's reliance on cl (1) (e) in each instance, that was misplaced. This, it was submitted, was because the respondent mischaracterised the difference between receiving a document or information on a confidential basis and whether that of itself was enough to say that the clause was enlivened. 7. The applicant's counsel also submitted that in respect of emails withheld, then any emails that predate the placement in the Unit decision, and thus the 'deliberative process' being underway, could not be withheld on that basis. Respondents written submissions and submissions at hearing 1. These submissions were served on the parties and in the open hearing were addressed by the applicant. The submissions set out the relevant cases that support the position that the respondent advocated and rebutted many of the grounds for release ventilated by the applicant in respect of s – 12 of the GIPA Act. The section provides: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information— (a) 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. (b) 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. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 1. However I note Sch 4 Cl 16 of the Act provides that Notes included in the Act do not form Part of the Act. In that regard whilst the Act is beneficial having regard to the objects and intention of the Parliament in the interpretation of the Act, from a statutory perspective the Notes at s- 12 provide guidance. Information Commissioner's submissions 1. The Information Commission's submissions also addressed the matters outlined at s 12 as well as the Information Commissioner's own Guidelines. In respect of the personal information grounds I note that the respondent in each instance has also relied on cl 1 grounds to limit release of information. In those circumstances where I address the individual documents remaining in dispute individually below, it is unnecessary to further assess the cl 3 personal information provisions in detail. These have been referred to elsewhere in these reasons and in also in the context of s 55 of the Act. There is some weight to these grounds, but most of the weight relates to the cl 1 (e), (f) and (h) grounds. Applying the Public Interest Test 1. The role of the Tribunal is to weigh up the competing grounds (in favour and against release) as set out in s 15 of the GIPA Act. The section provides: 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. The respondent's evidence was provided through their witness M Smith. In my view the evidence of the witness does not fully establish the relevant factual matters that explain how the impact of the release would achieve the stated outcome 'reasonably expected to have the – effect' quoting the statutory language. This was particularly so when the witness was asked by the Tribunal what direct evidence or experience he had with individuals being reticent or reluctant to be candid when offering opinions in a managerial / human resources or industrial workplace context. 2. Mr Smith's evidence was based on a view that he held which was based on an understanding of the views and possibly experiences of others. That observation does not however mean that much of his evidence can be given little weight, but rather that it does no more than amplify for the respondent the assessment of the actual information, when considered at face value. Much of the information that is withheld can be independently assessed by the Tribunal having regard to its content, context and the meaning and context of the stated overriding public interest considerations against disclosure as set out in the Act. The Tribunal undertakes a fact finding exercise in assessing and weighing the nature of the information and its import having regard to the statutory considerations. These matters were also expanded by the respondent's and the Information Commissioner's detailed submissions. Where does the balance lie with weighting of the information? 1. In this matter some of Ms McCrystal's personal information is broadly known to her. The uncontroversial matters (concerning her personal information) have either been released or are self evident to her. In addition she understands the ultimate import or effect resulting from a consideration of these matters, in that she did not obtain a permanent placement in the Coronial Support Unit. 2. Ordinarily this is the highest value information arising from her employment related inquiries. However it is how and why the respondent reached that position that she seeks to understand. Perhaps for this reason I initially referred this matter to mediation when it first came to the Tribunal over a year prior to the hearing so the parties could negotiate a conditional release outside of the GIPA Act. Unfortunately this outcome did not eventuate and so the matter falls to the Tribunal to balance the same issues as those that are also between the parties. 3. However in doing so under the GIPA Act the Tribunal is required to have regard to the public interest considerations against disclosure and attach appropriate weight, having regard to the fact that the GIPA Act creates a mechanism for unconditional disclosure. 4. These personal matters under s 55 have in part informed and significantly led to the respondent's continued positive reassessment of information in respect of the applications which have resulted in the ongoing release of information to Ms McCrystal. 5. On balance I see nothing contrary to the principles set out in s 15 which would prevent the disclosure of the information in the manner set out in the table below, having regard to the weighing exercise of the competing public interest considerations against disclosure, balanced with the public interest in favour of disclosure. 6. In some instances (on my assessment of the information) the public interest considerations in favour of disclosure clearly outweigh the claimed public interest considerations against disclosure. The arguments for and against are predominantly valid, and the respondents enlivening of the provisions in the Table to s 14 is sound. However when weighing that information up, notwithstanding that the release of the information is effectively unconditional and to the whole world, I find that when examining the documents and applying the test, further information should be released to Ms McCrystal. 7. The matters set out at s 55 (2) of the GIPA Act are also compelling grounds for providing Ms McCrystal with access to some of the information. I cannot glean any adverse grounds which would work against providing the information to Ms McCrystal, under s- 55 (1) of the GIPA Act. However because of the context of the information (in an employee / employer workplace performance / placement context), I can envisage how some factors under s 55 (3) could be applied to withhold the information. However the main basis Cl 1 (e) (f) and (h) do not apply to s 55 (3). 8. Section 5 relevantly provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section— (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14. 1. In my view none of the personal factors add any weight to the claimed public interest considerations against disclosure. 2. Having conducted a fact finding assessment of the documents that remain in dispute below, I make the following findings in column 3 of this Table for the reasons set out above and included next to the assessment of each document in the Table. Review 2018/279616 Page / Document No. Context of document / redactions. Finding. 231. Emails This document is content of HR discussion between officers DCI Laidlaw and Sgt McGregor re: applicant's application. My concern is that the release of the brief comments could cause officers to be less frank and reluctant to provide similar opinions in their roles in the future. Whilst the process has clearly concluded the cl (e) and (h) grounds would fall away, on the basis of cl 1 (f) release could reasonably be expected to have the effect in cl 1 (f) because officer would not give frank opinions in the future. (232 is just the beginning of the chain – not redacted) Withhold 72 & 73 Emails Emails McGregor – Sgt Buckley My concern is that the release of the brief comments could cause officers to be less frank and reluctant to provide complete opinions in their roles in the future. Whilst the process has clearly concluded the cl (e) and (h) grounds would fall away, on the basis of cl 1 (f) release could reasonably be expected to have the effect in cl 1 (f) because officer would not give frank opinions in the future. Withhold 143-145 Emails Email chain in HR arising from applicant wishing to challenge decision not to accept her into the SCC On balance the redacted information would disclose how police manage a sensitive human resources issue and could prejudice the future exercise of those functions when exercised as part of a deliberative process. On Balance sufficient weight attaches to the cl 1 (e) (f) and (h) grounds. Withhold 264. Emails Request for information by Laidlaw from Sgt Watson as manager of applicant. On balance the redacted information would disclose how police manage a sensitive human resources issue and could prejudice the future exercise of those functions when exercised as part of a deliberative process. On Balance sufficient weight attaches to the cl 1 (e) (f) and (h) grounds. Withhold 445 and 446. Email McGregor to Laidlaw re: daily taskings of applicant. This email concerns a clarification by the Commander of some advice given by the manager. On balance the redacted information would disclose how police manage a sensitive human resources issue and could prejudice the future exercise of those functions when exercised as part of a deliberative process. On Balance sufficient weight attaches to the cl 1 (e) (f) and (h) grounds. Withhold (446 is part of the 2 page chain and fully released by respondent) 313. Response from Laidlaw to Buckley in order to respond to management / resource issues in workplace raised by applicant. (pg 316 s the applicant's own email and not withheld- but listed as it forms the chain of those documents). In my view this document does not enliven cl (1), (f) or (h). The information in Laidlaw's response to Buckley is purely managerial concerning minor shift, desk allocation resourcing and other non- sensitive matters. When read in the context of the applicant's email query (pg 314 – advising lack of workstation allocation, and inferred lack of access to a computer and inability to perform her role) I cannot see any basis on balance to withhold the information from the applicant. Release 315. Response by Watson to Laidlaw re: applicant's email query – pg 314) This is the background that the manager gave the commander so that they could respond to the resource query by the applicant. Like the response in document 313 it concerns work start times, who was notified of the new staff member, date of commencement and time, issues about fitting that officer in with existing staff (physically). It conveys a standard outline of the modifications and extra efforts required when accommodating a new or extra employee. In that regard it is highly consistent with low level managerial matters which arise in any workplace of more than one staff member. In my view this document does not enliven cl (1), (f) or (h). The information is purely managerial concerning minor shift, desk allocation resourcing and other non- sensitive matters. When read in the context of the applicant's email query (pg 314 – advising lack of workstation allocation, and inferred lack of access to a computer and inability to perform her role). Whilst there is an opinion about the need for the applicant to be raising the matter formally via an email, in the above context I cannot see any basis on balance to withhold the information from the applicant. Release 317. This is a duplicate of the withheld information in document 313. On the basis of the reasons given for Document 313: Release 323. Email Buckley to Laidlaw re: outcome of applicant's trial placement in the CSU. I believe that the first four words of the redacted content and the second and third paragraph should be withheld from release. On balance the redacted information would disclose how police manage a sensitive human resources issue and could prejudice the future exercise of those functions when exercised as part of a deliberative process. On balance sufficient weight attaches to the cl 1 (e) (f) and (h) grounds. Withhold However in respect of the rest of the redacted information (paragraph [1] less the first four words, on balance the redacted information should be released. It is information which on the face of the record was conveyed directly to the applicant in a verbal form. The fact that Sgt Buckley is communicating about the matter back to the Commander is already evident from the scope of the GIPA request and this information being identified in response to the application. In my view for most of Paragraph [1] clauses 1 (e) (f) and (h) are not enlivened. Partial release. 324. 1st redacted email S Cook to Buckley after email at doc 323 On balance the redacted information would disclose how police manage a sensitive human resources issue and could prejudice the future exercise of those functions when exercised as part of a deliberative process. On Balance sufficient weight attaches to the cl 1 (e) (f) and (h) grounds. Withhold 2nd redacted email: reproduction from email chain of doc 323 This information should be partially released in the same manner and for the same reasons as document 323. Partial Release. 325. End of email chain docs 323, 324. Not redacted Already released. 328 and 329. Email chain docs 323, 324, 325 going on to Watson (at 328). Partial release consistent with my finding on docs 323 and 324. Partial Release. 19. Emails in response to applicant's request for information / records re: minutes. On balance the redacted information would disclose how police manage a sensitive human resources issue and could prejudice the future exercise of those functions when exercised as part of a deliberative process. On Balance sufficient weight attaches to the cl 1 (e) (f) and (h) grounds. Withhold. Review 2018/314575 Page / Document No, Context of document / redactions Finding 714 and 715. Internal emails concerning trail placement feedback re: applicant and performance in CSU. Police rely on cl 1 (e) and (h) to withhold in entirety this information. The information is sensitive and provides frank and in my view professional objective opinions which would on balance be unlikely to be provided in confidence should they be subject to unconditional disclosure. I consider the withholding of this information to be the strongest grounds relied upon by the respondent in their decision. In that regard a significant weight attaches to the relevant public interest considerations against disclosure such as to on balance prevent release under the GIPA Act. The personal information considerations (cl 3) apply to both the authors and the subject, but these attach less weight and in my view are completely outweighed by the cl 1 (e) and (h) grounds as set out in the confidential affidavit of 29 January 2020. Withhold. 716. Emails Laidlaw / Buckley This is a duplicate of documents 313 and 317. For the same reasons given above that information should (on balance) be released to the extent that it had previously been released. Release. 717 and 718. Emails McCrystal – Gow – Buckley – Laidlaw A duplication of documents 313 and 314. For the same reasons given above that information should (on balance) be released to the extent that it had previously been released. Release. 719. Email Watson - Laidlaw A duplicate of document 315. For the same reasons given above that information should (on balance) be released to the extent that it had previously been released. Release. 720. Email chain McCrystal, Buckley, Laidlaw A duplicate of document 314. For the same reasons given above that information should (on balance) be released to the extent that it had previously been released. Release. Conclusion 1. The correct and preferable decision is that in respect of the documents described at column three of the Table above, where indicated the decision will be set aside. The remainder of the decision of the respondent will be affirmed. 2. I therefore make the following orders: Orders In respect of both proceedings 1. The decision of the respondent dated 14 June 2019 is set aside in part. 2. The respondent is to release the information in accordance with the findings in column 3 of the Table that appears at paragraph [60] of these reasons for decision. 3. The decision is otherwise affirmed. ********** 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 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: 05 May 2020