Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pemberton v Commissioner of Police [2020] NSWCATAD 135 Hearing dates: On the papers Date of orders: 21 May 2020 Decision date: 21 May 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: The decision under review is affirmed. Catchwords: FREEDOM OF INFORMATION – government information – workplace investigation – prejudice to supply of confidential information and to an agency's functions – deliberative processes - information obtained in confidence – personal information – personal factors of applicant – allegations of misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2013 (NSW) Law Enforcement Conduct Commission Act 2016 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Telecommunications (Interception and Access) Act 1979 (Cth) Cases Cited: Ansoul v City of Sydney [2017] NSWADTAD 65 Battin v University of New England [2013] NSWADT 73 Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 Commissioner of Police v Barratt [2015] NSWCATAP 68 Hall v Roads and Maritime Services [2012] NSW ADT 239 McKinnon v Blacktown City Council [2012] NSWADT 44 McLennan v University of New England [2013] NSWADT 113 McMahon v Director General Department of Fair Trading [2003] NSWADT 164 MJ v Department of Education and Commerce [2013] NSWADT 213 Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 Selby v Commissioner of Police (NSW) [2013] NSWADT 61 Singh v Legal Aid Commission (No.2) [2015] NSWCATAD 5 Texts Cited: None cited Category: Principal judgment Parties: James Pemberton (Applicant) Commissioner of Police (Respondent) Representation: Counsel: M Seck (Respondent) Solicitors: Applicant (Self Represented) Norton Rose Fullbright (Respondent) File Number(s): 2018/00219172 Publication restriction: Pursuant to sections 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013: 1. Sections of these reasons containing information filed by the applicant which is subject to the orders made by the Tribunal on 22 July 2019 are marked "Not for publication (A)" and may not be published or disclosed to the respondent. 2. Sections of these reasons containing confidential evidence, submissions or documents filed with the Tribunal by the respondent are marked "Not for publication (R)" and may not be published or disclosed to the applicant. REASONS FOR DECISION 1. These proceedings arise from an application for review of a decision by the respondent on the applicant's application for access to information under the Government Information (Public Access) Act 2013 (the GIPA Act). 2. After reducing the scope of his original application, the applicant sought material which was referred to in the footnotes of two investigations referred to as 2014/27A and 2014/27B. 3. The respondent issued its decision on 28 December 2017 in which it decided to provide access to some information, to refuse to provide access to some information and that some information was not held. 4. On internal review, the respondent upheld its original decision. The applicant sought review by the Information and Privacy Commission (IPC). On 12 June 2018 the IPC issued its decision which was to recommend that the Commissioner of Police make a new decision, as its decision was not justified. 5. The respondent informed the applicant on 27 June 2018 that it had decided not to accept the IPC recommendation. 6. The applicant lodged his application with this Tribunal on 9 July 2018. 7. Since then, additional documents have been released by the respondent to the applicant so that it is currently the case that the documents in dispute are: 1. Written response by Mr Beatson (IAU Ref 1205) 2. Written response by Ms Hickson (IAU Ref 1205) 1. Both were refused in full by the respondent in reliance on s 14 Table 1(d), 1(e), 1(f) and 1(g) of the GIPA Act. Background 1. The information relates to investigations into allegations of misconduct made by the applicant in 2012, while he was an employee of the respondent. The allegations were made against various persons employed by the respondent including two senior administrative officers of the respondent. The applicant states that the allegations were made as a public interest disclosure. 2. The applicant states that in February 2016 he was informed that none of the allegations were substantiated and that he received no explanation of why they were not proven. His GIPA application is directed at obtaining such an explanation. Confidentiality 1. Section 107 of the GIPA Act 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. Section 64 of the Civil and Administrative Tribunal Act 2013 provides: "64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person." 1. On 22 July 2019 I made orders under s 64(1)(d) ensuring the non-disclosure of certain parts of the applicant's evidence and submissions and non-publication. I have amended this order to restrict publication under s 64(1)(c).Sections of these reasons which contain information which is subject to these orders is marked "Not for publication (A)" and may not be disclosed to the public or the respondents 2. The respondent also sought to file confidential evidence as noted above and where it is necessary to refer to that evidence or to information for which there is an overriding public interest against disclosure that part of these reasons is marked "Not for publication (R)". I have made an order under s 64(1) (c) and (d) prohibiting the disclosure to the applicant and the publication of confidential evidence filed with the Tribunal, and the contents of the confidential documents lodged with the Tribunal by the respondent. The legislative framework 1. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 2. There is a general public interest in favour of the disclosure of government information (s 12). Other public interest considerations in favour of the disclosure of government information may be taken into account, and they are not limited. 3. The public interest considerations against disclosure which may be taken into account in conducting the determination are limited to those in Schedule 1 and the Table to s 14 of the Act (s 14(1) and (2)). 4. In determining where the public interest lies, the Tribunal must determine whether there are public interest considerations against disclosure and whether, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13). 5. Section 15 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 task of the Tribunal is to determine whether the agency has substantiated its reliance on any of the identified considerations against disclosure, and if so, those considerations must be weighed against the considerations which favour disclosure, bearing in mind what is said in s 15. 2. Section 55 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. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person." 1. The responsibility for establishing that the public interest considerations against disclosure on which it relies apply and that, on balance, those considerations outweigh the public interest considerations in favour of disclosure, rests on the respondent: Hall v Roads and Maritime Services [2012] NSW ADT 239 at [25]. 2. The words "could reasonably be expected" in s 14 mean that there must be a reasonable expectation (not fanciful, imaginary or contrived) that the disclosure could have the prescribed effect (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590). The word "prejudice" in this context should be given its ordinary meaning of "cause detriment or disadvantage" (McLennan v University of New England [2013] NSWADT 113). 3. The balancing exercise to be conducted under s 13 of the GIPA Act "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74]. The respondent's case 1. The respondent submits that its decision should be affirmed. It relies upon the following evidence: 1. Affidavit of Acting Inspector Fernando Ponte affirmed 7 November 2018; 2. Reply Affidavit of Acting Inspector Fernando Ponte affirmed 11 December 2018; 3. Further reply affidavit of Acting Inspector Fernando Ponte affirmed 9 September 2019; 4. A confidential affidavit of Acting Inspector Fernando Ponte affirmed 7 November 2018; and 5. A confidential further reply affidavit of Acting Inspector Fernando Ponte affirmed 9 September 2019. 1. Acting Inspector Ponte holds the position of Professional Standards Manager Assist within the Professional Standards Command (PSC) and has held that role since 2014. 2. He is responsible for ensuring that all obligations relating to complaint management and misconduct are met where managed by the PSC. He states that in his view there are strong public interest grounds against disclosure of the information. Challenges to the respondent's evidence 1. The applicant challenges the evidence of Inspector Ponte in a number of respects. Firstly, that the information provided is generic and does not consider the specific information being sought. 2. In relation to this point, this is a matter of the weight which is given to the evidence which will be considered as part of the balancing procedure. 3. Secondly, it is alleged by the applicant that Inspector Ponte has a vested interest in ensuring that the information is not released as it would expose he made an error in relation to the Strike Force which investigated the allegations made by the applicant and incorrectly and corruptly finalised the Strike Force. Inspector Ponte did not declare his involvement. 4. The nature of the alleged error is not stated by the applicant. Inspector Ponte responded that he had no involvement in the deliberations or decisions associated with the misconduct allegations. He stated that the applicant originally made allegations against police officers as well as the two administrative officers in question. He was involved in initial deliberations concerning the police officers, but as the application concerns only information relating to the administrative officers, that involvement is irrelevant. He denies the other allegations. 5. I am not satisfied that the applicant's concerns are sufficient reason to exclude Inspector Ponte's evidence, given that the applicant's allegations of corruption and error against the officer are not established. As to the fact of his involvement in the Strike Force, there is no reason why a person involved in the investigation could not provide evidence of matters of which they have knowledge. The reliability of the evidence or otherwise is a matter to be weighed by the Tribunal. Public interest considerations against disclosure Clause 1(d) - disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions Clause 1(f) - disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions 1. The functions of the agency relied upon by the respondent are managing and investigating complaints about police employees. Acting Inspector Ponte stated that the respondent regularly receives confidential information relating to complaints about police employees, including evidence with regard to alleged misconduct and intelligence and observations which may, on further investigation, establish that a police employee has or may have engaged in misconduct. 2. The PSC investigates complaints about police employees and treats all information which it receives in an investigation, including the complaint, evidence and intelligence, and the identity of complainants, the subject of the complaint and witnesses, as strictly confidential. Access to complaint files is limited to those conducting the investigation and managing the complaint. 3. Complaints are treated with strict confidence, in part to encourage complainants to be forthcoming without fear of reprisal. Persons providing evidence are assured that confidentiality over their evidence will be observed. 4. PSC never provides investigation reports or any investigative materials to the police employees that are the subject of unsubstantiated complaints or the complainants. Complainants are kept informed of the investigation's progress, however. 5. He expressed the view that disclosure of investigation materials under the GIPA Act has the very real potential to prejudice the supply of complaint information and evidence in support of investigations in the future. 6. The respondent submits that a robust and effective mechanism for investigating and addressing misconduct is necessary to maintain a police force of the highest integrity, which is in the public interest. In addition it is against the public interest to revel the type of information in question which concerns unsubstantiated allegations against an employee. 7. I am satisfied that managing allegations of employee misconduct is a function of the respondent. It is accepted that the effective performance of an agency's functions depends to a significant extent on the performance and management of its staff (Ansoul v City of Sydney [2017] NSWADTAD 65). 8. The Tribunal has recognised in a number of cases that agencies rely on the cooperation of staff to obtain access to the best information on which to make findings and take action in cases of misconduct. The effective performance of an agency's employer functions requires that complaints relating to employee misconduct are handled confidentially (MJ v Department of Education and Commerce [2013] NSWADT 213 and Ansoul at [38].) The test for clause 1(d) is whether the agency will be able to obtain such confidential information from employees in the future if the information in question is disclosed (Selby v Commissioner of Police (NSW) [2013] NSWADT 61; McMahon v Director General Department of Fair Trading [2003] NSWADT 164) and this is to be determined at a broad operational level (Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80). 9. The respondent's case is that as this information is confidential, disclosure of it would reduce the disclosure of similar confidential information in the future. The question of whether the information supplied is "confidential information" must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it gathers or receives the information (Camilleri at [33]). I am satisfied, based on the evidence of Inspector Ponte, that information obtained as part of an investigation is treated as confidential by the respondent. 10. The information in question is the responses of the persons who were subject to the allegations. Inspector Ponte stated: "… Mr Beatson and Ms Hickson are administrative employees of NSW Police Force and are not required to provide a response to allegations of misconduct against them – they have the opportunity not to do so. That is different from police officers who are legally required to provide responses to allegations of misconduct by way of a directive memorandum. … the employee response is taken to be a confidential document irrespective of whether it was provided voluntarily or in consequence of a lawful direction. Those responses are integral to the final assessment of the misconduct matter … This material may also contain opinion about operational, governance and employee relations, the disclosure of which would prejudice core Agency functions. If administrative employees knew… that their responses would be disclosed .. they would decline to provide essential information." 1. As they were administrative officers the investigation was conducted under the Government Sector Employment Act 2013 and they were not obliged to respond to the allegations. It may be argued that confidentiality is irrelevant to the officers concerned, as it is in their interest to provide a response to the allegations. However I consider there is substance to the counter argument that if they were aware that their response might be disclosed to the community at large, they would be more circumspect in their response and the investigator would receive less information. 2. [NOT FOR PUBLICATION (R)] 3. It is not in the public interest, in my view, that persons in their position feel constrained in their response to allegations, as this will hamper the investigative process. I therefore consider this ground is made out. Clause 1(e) - disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way to prejudice a deliberative process of government or an agency 1. The respondent submits that disclosing the responses of the subject officers will reveal the deliberations of the NSW Police Force in investigating the allegations of misconduct. It states the responses formed part of the PSC's deliberations, opinion and recommendations regarding whether the allegations could be substantiated. 2. [NOT FOR PUBLICATION (R)] 3. I do not accept that disclosing responses by officers to the allegations would reveal a deliberation of the respondent; or, if they did, this would prejudice the deliberative processes of other investigations. The respondent's deliberative process is separate and not part of the response, and in any event is not revealed by the information in question, in my view. Accordingly this ground is not made out. Clause 1(g) - disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence 1. The respondent submits that if the information were disclosed it would be in breach of confidentiality assurances it provided and could be liable to allegations of agency maladministration under s 11 of the Law Enforcement Conduct Commission Act 2016 (LECC Act). 2. [NOT FOR PUBLICATION (R)] 3. The evidence of Inspector Ponte does not provide a basis for finding that there were express assurances of confidentiality that would give rise to a breach of confidentiality action or agency maladministration. 4. Section 11(a) of the LECC Act provides: "(1) For the purposes of this Act, agency maladministration means any conduct (by way of action or inaction) of the NSW Police Force or the Crime Commission other than excluded conduct— (a) that is unlawful (that is, constitutes an offence or is corrupt conduct or is otherwise unlawful), or (b) that, although it is not unlawful— (i) is unreasonable, unjust, oppressive or improperly discriminatory in its effect, or (ii) arises, wholly or in part, from improper motives, or (iii) arises, wholly or in part, from a decision that has taken irrelevant matters into consideration, or (iv) arises, wholly or in part, from a mistake of law or fact, or (v) is conduct of a kind for which reasons should have (but have not) been given, or (c) that is engaged in in accordance with a law or established practice, being a law or practice that is, or may be, unreasonable, unjust, oppressive or improperly discriminatory in its effect." 1. It is not clear to me how the LECC Act is relevant to clause 1(g). However for the reasons stated above in relation to 1(d) and (f) I am satisfied that the information was provided to the agency in confidence. Clause 1(h) - disclosure of the information could reasonably be expected to 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. The respondent submitted that while the purpose and result of the investigation was known to the applicant, he was not aware of how it was conducted. Revealing how it was conducted could reasonably be expected to prejudice the conduct, effectiveness and integrity of future such investigations. Inspector Ponte stated that some degree of secrecy over the manner in which the PSC investigated was essential as it would allow employees to understand PSC's investigative techniques and use counter measures to avoid detection. 2. The respondent acknowledged that the process of responding in writing to allegations is a fairly routine aspect of procedure. However it claimed that the method of eliciting the response was unknown. 3. Having reviewed the information in question, I am not satisfied that the information discloses any part of the manner in which the investigation was conducted which could reasonably be expected to prejudice the conduct, effectiveness or integrity of any future investigation. This ground is not made out. Clauses 3(a) and (b) – disclosure of the information could reasonably be expected to reveal an individual's personal information or contravene an information protection principle 1. Personal information is defined in clause 4 of Sch 4 as: "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." 1. It does not include an individual's name and non-personal contact details, position title, public functions and the agency in which the individual works that reveals nothing more than the fact that the person was engaged in the exercise of public functions. 2. Information and opinions about the conduct or misconduct of employees is personal information as is complaints about employees or information about work performance (McKinnon v Blacktown City Council [2012] NSWADT 44; Singh v Legal Aid Commission (No.2) [2015] NSWCATAD 5 at [49]). 3. From my review of the material, I am satisfied that the information contains personal information of the officers concerned. 4. The respondent also relies on the information protection principle contained in s 18 of the Privacy and Personal Information Protection Act 1998. This 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. None of the exceptions in sub-section (a) to (c) apply in this case. The disclosure would be for another purpose than that for which it was collected. A reading of the information gives reason to believe that the individuals would object. There is no evidence that the individuals concerned were made aware that information of the kind is normally disclosed. There is also no serious and imminent threat to the life or health of any person. I am satisfied that clause 3(b) applies to the report and attachments. Personal factors 1. The respondent submits that the applicant's motives are relevant and can be taken into account under s 55(1)(b). Section 55(3) provides that 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 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. Accordingly in this case the applicant's motives are only relevant to clause 3(a) and (b). 2. [NOT FOR PUBLICATION (R)] 3. [NOT FOR PUBLICATION (R)] 4. The available evidence concerning motives, taken with the applicant's own submissions which allege that the respondent has provided false evidence, suggest that the applicant would use the information to an attempt to discredit the respondent. However I do not find a consideration of those motives assists me in determining whether the disclosure is contrary to the public interest. The applicant's case 1. The applicant relies on: 1. Affidavit of James Pemberton dated 2 August 2019; 2. Affidavit of James Pemberton dated 5 December 2018; and 3. Affidavit of James Pemberton dated 24 February 2020. 1. The applicant also filed open and confidential submissions. The applicant's submissions may be dealt with under the following categories. Public interest considerations in favour of disclosure 1. There is a general public interest in favour of the disclosure of government information which must be taken into account. Disclosure of the information could reasonably be expected to reveal that an agency or a member of an agency has engaged in misconduct 1. The misconduct which the applicant submits would be revealed is: 1. Recording of Crime Stoppers calls by the Policelink Unit where the applicant and one of the officers worked. The applicant claims this is contrary to the Telecommunications (Interception and Access) Act 1979 (Cth). 2. The NSW Police Force corruptly attempted to dismiss the allegations of the applicant in 2013 which it later accepted as requiring investigation in 2015. 3. The applicant claims he was bullied by one of the subject officers via Twitter and when he complained about this was told that the Strike Force would examine it. However he claims there is no mention of the Twitter incident in the relevant investigation report, and the release of the officer's response might disclose information regarding that incident. 4. The applicant alleges maladministration by the Officer in Charge of the Strike Force by altering the terms of reference for issues of his complaint. The applicant provides detailed information together with extracts from the investigation report, agreed complaint summary and evidence. It is difficult to follow his submission in detail but it appears to be: 1. Issue 13 - The allegation in the agreed complaint summary tendered by the applicant was: 1. "Media reports indicated staff were being rewarded with movie tickets etc to keep Emergency Calls within 3 minutes / reduce handling times to within that timeframe. 2. In July 2006 Beatson said in a public statement to the media that this was "Completely false" and there was no link between the rewards and pressure to keep time short." 3. Mr Pemberton said that while it was true there was no nominated specific maximum time of "3 mins" there was a target for all staff to achieve their monthly "group average"…individual operator performance was assessed at least in part on statistical results that included average handling times…"(The actual allegation continues for a page and a half). 4. Mr Pemberton alleged this was changed to a finding in the investigation report that the officer "did not lie to the public via the media regarding rewards offered to staff to keep emergency calls within a 3 minute timeframe." 1. Issue 4 - Mr Pemberton claims his original allegation was that Crime Stoppers calls were illegally recorded. The agreed complaint summary, in brief, stated that Mr Pemberton was informed the Crime Stoppers board had directed these calls were not to be recorded and were to be anonymous. Policelink however recorded all calls in and out including Crime Stoppers calls. The caller's telephone number could be seen. He believed calls were being recorded without permission. The public were told their calls were anonymous and not being recorded. 1. The finding by the investigator was that the officer "did not, from 2004 onwards, direct that Crime Stoppers calls were to be improperly or illegally recorded and so the public were misled about the issue." 2. Mr Pemberton says he did not allege that the officer directed the recordings. 1. [NOT FOR PUBLICATION (A)] 2. It is a serious matter for the Tribunal to accept that disclosure of information could reasonably be expected to reveal or substantiate that an agency has engaged in misconduct or improper or unlawful conduct (Commissioner of Police v Barratt [2015] NSWCATAP 68). In that case the Appeal Panel stated at [136]: "As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. " 1. With regard to (1), there is some documentary evidence tendered by the applicant that this recording occurred for training or management purposes where there were significant concerns about an operator's performance. 2. [NOT FOR PUBLICATION (R)] 3. The issue for the Tribunal to determine is whether disclosing the response could reasonably be expected to reveal that an agency or a member of an agency has engaged in misconduct. Firstly, the investigation has examined this issue and found no misconduct. Secondly, having reviewed the response of the officer in question I do not consider that the information it contains reveals any misconduct. 4. With regard to (2), Inspector Ponte stated that the complaints concerning the two officers were referred to the Police Integrity Commission (now the Law Enforcement Conduct Commission) in July 2014. Clearly the matters were investigated. The applicant does not point to sufficient evidence to find any corrupt conduct occurred. 5. With regard to (3) Inspector Ponte stated the respondent directed that the Twitter posts be removed and they were removed. The Commissioner's delegate decided not to commission a separate formal inquiry into this matter. The applicant also stated that he learned during other Tribunal proceedings that "There has been no investigation of the Twitter posts" which corroborates Inspector Ponte's evidence. Therefore it is unclear why the officers' response to the investigation should reveal anything about them, and on my review of the information, they do not. 6. With regard to (4), it is not apparent that disclosure of the responses would reveal anything relevant to an allegation that the terms of reference were altered. It is not alleged by the applicant that the subject officers were involved in altering the terms of reference. I have reviewed the responses and they do not contain any information relevant to this subject. 7. Accordingly I am not satisfied that disclosure of the information could reasonably be expected to reveal that an agency or a member of an agency has engaged in the kind of misconduct alleged. Personal information of the applicant. 1. The information contains some personal information concerning the applicant and there is a public interest in favour of disclosure of personal information to the person it concerns. The personal information relates to Mr Pemberton's conduct as an employee and was provided as part of the officers' response to defend the allegations. Other public interest considerations in favour of disclosure 1. Section 55(2) provides that the applicant's personal factors may be taken into account in favour of disclosure. These may include any factors particular to the applicant. 2. The applicant complains about the conduct of the misconduct investigation and GIPA Act process and disagrees with Inspector Ponte's evidence about the outcome of the investigation and the GIPA process. 3. He complains he was subject to reprisal actions and was medically retired from his employment with the respondent. He claims that false statements were made which affected his workers compensation claim. He does not provide evidence of these apart from his own claims, and the respondent denies these allegations. 4. [NOT FOR PUBLICATION (A)] 5. Therefore while the above are personal factors there is insufficient evidence to substantiate them. 6. There is also a public interest in informing the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. This point was not addressed by either party, however, Crimestoppers is a program which interacts with members of the public.. 7. [NOT FOR PUBLICATION (R)] 8. Having reviewed the information, the information which it relates to is minimal and does not of itself reveal policies and practices for dealing with the public, rather internal policies and practices. Consideration 1. In relation to clauses 3(a) and 3(b), disclosure of the information would reveal information which is personal information of the subject officers and sensitive in nature and I am satisfied that this would breach an Information Protection Principle. 2. I am satisfied that disclosure of the information in the investigation report would disclose information provided in confidence (1(g)). 3. Disclosure of the confidential information could reasonably be expected to prejudice the effective performance of the respondent's functions in relation to the investigation of its staff's conduct and the maintaining of the integrity of the police force. This could reasonably be expected to prejudice the supply of confidential information from the staff under investigation and witnesses which would make it significantly more difficult for the respondent to obtain witness evidence and manage employee misconduct (1(d) and (f)). 4. The factors in favour of disclosure are: 1. The general public interest in favour of disclosure of government information. 2. The public interest in informing the public about the policies and practices of Crimestoppers. 3. The public interest in favour of the applicant having access to his own personal information. 1. In conducting the balancing exercise, I find that the public interest factors against disclosure of the information outweigh the public interests in favour of disclosure. In my view the public interest considerations in favour of disclosure are less substantial than the public interest considerations against disclosure. This is primarily because the information was provided in the context of responding to allegations of misconduct and there is a strong public interest in public employees being able to respond to such allegations frankly and fully so that investigations are not hampered by lack of relevant information. Orders 1. The decision under review is 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: 21 May 2020