Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: APD v Commissioner of Police, NSW Police Force [2012] NSWADT 42
• Decision date: 15 March 2012
• Jurisdiction: General Division
• Before: S Higgins, Deputy President

Decision

The decision of the Commissioner is affirmed

• Catchwords: Access to government information - public interest considerations against disclosure - whether information could reasonably be expected to reveal an individual's personal information
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Government Information (Public Access) Act 2009; Privacy and Personal Information Protection Act 1998
• Category: Principal judgment
• Parties: APD (Applicant); Commissioner of Police, NSW Police Force (Respondent)
• Representation: APD (Applicant in person); State Crown Solicitor (Respondent); Information Commissioner
• File Number(s): 113042

REasons for decision

Introduction

1 GENERAL DIVISION: (S HIGGINS, DEPUTY PRESIDENT). The applicant, APD, seeks review of a decision of the respondent, the Commissioner of Police (the Commissioner), to refuse him access to the particulars of an adult bike rider (the cyclist) who he alleges assaulted him on the morning of 26 May 2010. APD made his request under the Government Information (Public Access) Act 2009 (GIPA Act).

2 The Commissioner identified three documents containing the information requested by APD. These documents were a COPS event report, a witness statement of the cyclist and a witness statement of APD. The Commissioner determined to release, in full, the statement of APD. The Commissioner also released, in part, the COPS report and refused to release the witness statement of the cyclist. The Commissioner determined that the disclosure of the information in the witness statement of the cyclist could reasonably be expected to reveal that person's personal information and that when this public interest consideration against disclosure was balanced against the public interest consideration for disclosure the public interest against the disclosure was an overriding one.

3 The Commissioner made a similar finding in regard to the deletions in the COPS event report. These deletions being the particulars of the cyclist and the information at the end of the report. The grounds relied on in regard to the deletion at the end of the report differed to those relating to the particulars of the cyclist. As APD did not press access to this deletion I have not considered it any further.

4 APD sought review of the decision of the Commissioner by the Office of the Information Commissioner, which he was entitled to do: see section 89 of the GIPA Act. On review, the Information Commissioner found, on balance, the Commissioner's decision to refuse access to the requested information be upheld on the grounds relied upon by the Commissioner.

5 In his application for review, APD gave the following as his reason for seeking review of the decision of the respondent:

'I am seeking particulars of the adult bike rider that assaulted me on 26 May, 2010. I was significantly injured. I was forced to take time off work for an accumulated period exceeding five (5) months to recover from my injuries and surgery. I intend to issue a statement of claim seeking damages from the adult bike rider. I have a witness. I have a viable case to bring the matter before a civil court.'

6 By consent, the parties agreed that the matter should be dealt with on the papers pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

Relevant legislation

7 The objects of the GIPA Act are set out in section 3, which provides as follows:

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.

8 The term 'government information' is broadly defined in subsection 4(1) of the GIPA Act to be 'information contained in a record held by an agency'. The word 'agency' is also defined in subsection 4(1) of the GIPA Act. It is not disputed that the information, the subject of this application is government information and is held by an agency.

9 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.'

10 Subsection 9(1) of the GIPA Act gives every person who makes an access application for government information under the GIPA Act a legally enforceable right to be provided with access to the information in accordance with the Act, unless there is an overriding public interest against the disclosure of information.

11 Subsection 12(1) provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information.

12 The public interest considerations against disclosure are set out in subsections 14(1) and (2) of the GIPA Act, which relevantly provide as follows:

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3) ...

Table

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) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,

(e) ...

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

(h) ...

2 ...

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) contravenes an information protection principle under the Privacy and Personal Information Protection Act 1998 or ..

(c) ...

4 ...

13 Personal information is defined in clause 4 of Schedule 4 to the GIPA Act. It provides as follows:

4 Personal information

(1) In this Act, personal information means 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.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

14 Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

15 Section 15 of the GIPA Act sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. That section is in the following terms:

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.

16 Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable to consult with specified persons before providing access to information. That requirement only applies to information, which is of a kind that requires consultation under subsection 54(2) (see subsection 54(1)). The information requiring consultation includes personal information about a person (see paragraph 54(2)(a) of the GIPA Act).

17 Section 55 of the GIPA Act makes provision for an agency to take into account the personal factors of the application. That section provides as follows:

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.

18 On an application for review to the Tribunal, sections 105 of the GIPA Act places the onus on the agency to establish that the decision the subject of review is justified: see subsection 105(1) of the GIPA Act.

19 Section 107 of the GIPA Act makes provision for the procedure in dealing with information for which there is or may be a public interest consideration against disclosure. That section provides as follows:

107 Procedure for dealing with public interest considerations

(1) In determining an application for ADT review, the ADT 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 ADT review, the ADT 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 the ADT 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 ADT review, the ADT 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 the ADT 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.

20 The Commissioner did not provide the Tribunal, on a confidential basis, pursuant to subsection 107(3), a copy of the information for which APD sought access (i.e. the information in dispute). However, at my request, the respondent provided the Tribunal with a full copy of the COPS report. On seeing that copy, I determined it was unnecessary for the Tribunal to be provided with a copy of the witness statement.

Evidence and submissions

21 The respondent tendered into evidence a statement of Detective Senior Constable Matthew Ammon, dated 3 May 2011. In that statement Detective Senior Constable Ammon said that in June 2010, he was given the '... matter to review'. He said he read the COPS event report and then went and obtained a fresh statement from APD and the cyclist. He said he attempted to take a statement from  APD's work colleague who had witnessed the incident. However, APD's work colleague refused to make a statement. APD explained that, due to past experiences, his work colleague was reluctant to make a statement at that time. Detective Senior Constable Ammon said that when interviewing the cyclist, he issued him with a ticket. He said he asked the cyclist whether he was willing to exchange details with APD, to which the cyclist responded 'no'. Detective Senior Constable Ammon said that after he had interviewed APD and the cyclist he formed a view that the cyclist had acted in self-defence.

22 In the remainder of his statement, Detective Senior Constable Ammon set out the usual practices of police when a member of the public reports an alleged offence. He also expressed an opinion about what APD might do if the name of the cyclist was disclosed to him. He formed this opinion on the basis of correspondence that the police had received from APD, in February 2011, about the lack of police action in failing to deal with adult cyclists who rode their bicycles on footpaths and other material held by the Commissioner in regard to APD's firearms licence.

23 The Commissioner filed and served detailed written submissions, which had attached to it a bundle of documents, including a copy of the documents provided to APD as a result of his GIPA application and copies of the documents referred to by Detective Senior Constable Ammon in his statement.

24 On 30 August 2011, APD filed and served written submissions and attached to those submissions were a number of documents. These included a copy of a photograph of the injury APD had sustained on 26 May 2010, fourteen diagrams (prepared by APD) showing his position and that of the cyclist during the encounter on that day, a joint character reference and a lengthy document (33 pages) responding to the matters raised in the respondent's written submissions.

25 On 30 September 2011, the Information Commissioner filed and served detailed written submissions that covered the operation of the GIPA Act generally and the matters in issue in this application. The Information Commissioner also identified a number of additional section 14 considerations against disclosure that were not raised by the Commissioner. I question the appropriateness of the Information Commissioner raising issues, which were not raised, and hence not in issue, by the respondent agency. This is particularly so where the additional considerations might reflect on the applicant personally.

26 On 10 October 2011, the Commissioner filed and served written submissions in reply to those of the Information Commissioner. The submissions, included reference to some of the considerations against disclosure raised by the Information Commissioner (i.e. those contained in item 1(d) and (g) of the Table to section 14 of the GIPA Act). However, these considerations appear to have been included only to the extent they are relevant to the item 3 (a) and (b) grounds that were relied on in the Commissioner's initial written submissions.

27 On 4 December 2011, APD filed and served written submissions in response to those filed by the Information Commissioner and the Commissioner. In his written submissions, APD noted that that the submissions of the Information Commissioner and the Commissioner were 'densely worded'. From an applicant's point of view, I cannot help but agree.

Consideration

28 The role of the Tribunal is to determine, having regard to the applicable law and the applicable facts, whether the decision of the Commissioner, the subject of review, is the correct and preferred decision: see section 63(1) of the ADT Act.

29 The applicable law includes the statutory provisions in the GIPA Act and any applicable legal principles applying to that statutory framework. As pointed out by the Information Commissioner, the statutory framework of the GIPA Act is one where there is a presumption in favour of the disclosure of government information, unless there is an overriding public interest against disclosure: see sections 5, 12, 13, 14 and 15 of the GIPA Act.

30 In this application, the factual matters in dispute are:

(a) whether there is a public interest consideration against disclosure of the information the subject of dispute (i.e. the particulars of the adult bike rider who APD alleges assaulted him on 26 May 2010) in that the disclosure of the information could reasonably be expected to:

i)prejudice the supply to the Commissioner and his officers of confidential information that facilitates the effective exercise of that agency's functions (item 1(d)),

ii)found an action against the Commissioner for breach of confidence, or otherwise result in the disclosure of information provided to an agency in confidence (item 1(g)),

iii)reveal the cyclist's personal information (item 3(a)), or

contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIP Act) (item 3(b)); and

(b) in the event one or more of the effects in (a) are established, whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure.

31 As I explained to APD, it is not the role of the Tribunal to determine whether or not he was assaulted, or whether he has a strong basis on which to bring a civil claim against the cyclist. The role of the Tribunal, as it was for the Commissioner and the Information Commissioner, is to objectively assess the relevant material and determine, in accordance with the provisions of the GIPA Act, whether the information for which access has been sought should or should not be granted.

32 For the purpose of this application, the relevant facts are that on the morning of 26 May 2010, as he was walking to work, APD saw the cyclist riding on his bicycle down towards him on the public footpath beside the road. On seeing the cyclist, APD approached and told the cyclist to get off the footpath and ride on the road. The cyclist continued to ride on the footpath and stopped as he approached APD, who was still telling him to get off the footpath. APD and the cyclist then became involved in an altercation where APD fell to the ground with an injury to his face. It would appear that the cyclist reported the incident to the local police station shortly after it had happened. I understand that APD  also reported the incident to the local police station that day. Detective Senior Constable Ammon then investigated the asserted assault and interviewed APD and the cyclist. Detective Senior Constable Ammon said that when he interviewed APD he spent over two hours with him getting a statement. He said he found APD's description of events were such that APD had behaved in a very intimidating and aggressive manner. He said that after interviewing the cyclist he 'deemed the cyclist had acted in self defence.' I note the COPS entry of the incident identifies the cyclist as the 'victim' and APD as the 'person of interest'. I assume this occurred as it was the cyclist who made the initial complaint. I have no drawn any adverse inference against APD  as a result of this categorisation.

33 As I explained to APD, it was not for the Tribunal to determine whether Detective Senior Constable Ammon was correct or incorrect in his assessment. The first question, as I have identified above, is whether the particulars of the cyclist, if disclosed, could reasonably be expected to have the effect of one or more of the matters listed in paragraph 30(a) above.

34 Having examined the deleted material in the COPS event report, I am satisfied that the information for which APD  seeks access is 'personal information' of the cyclist as defined in section 4 of the GIPA Act and that a disclosure of that information could reasonably be expected to reveal that information.

35 I am also satisfied that a disclosure of this information could reasonably be expected to contravene the disclosure information protection principle in section 18 of the PPIP Act. That section relevantly provides as follows:

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) ...

36 On the basis of the circumstances in which the disputed information was obtained and the evidence of Detective Senior Constable Ammon, none of the abovementioned exceptions apply. As I have already indicated, it is the evidence of Detective Senior Constable Ammon that the cyclist did not agree to this information being disclosed and it is not information of a kind that the Commissioner usually discloses to an interested member of the public.

37 The usual practice of the Commissioner, as explained by Detective Senior Constable Ammon, when actioning a reported alleged offence by a member of the public, is to interview the relevant parties and then determine what, if any, action is to be taken. In conducting those interviews, police obtain and record the personal details of each person interviewed. However, these details are kept confidential, subject to charges being laid. Where no charges are laid, it is the usual practice of police to keep any information that is obtained, including personal details, confidential. Detective Senior Constable Ammon explained that maintaining confidentiality in such circumstances is extremely important to the Commissioner's policing functions. He expressed this to be 'the bread and butter of policing.' That is:

'If police did not keep information from members of the public confidential, our justice system wouldn't work. People wouldn't want to supply statements to the police and we wouldn't be able to investigate and prosecute offences.'

38 Detective Senior Constable Ammon also explained that the Commissioner's 'Customer Service Charter' advises members of the public, who report matters to police, can be assured of confidentiality. Without that assurance and a trust in that assurance being maintained, the Commissioner and his officers would not be able to fulfil their functions.

39 On the basis of the evidence I am also satisfied that the information in dispute was obtained in confidence and if disclosed could reasonably be expected to prejudice the supply of confidential information of this kind which facilitates the effective exercise of the Commissioner's functions. However, I am not satisfied that a disclosure of this information could reasonably be expected to found an action for breach of confidence.

40 Being satisfied that there are public interest considerations against disclosure, the next issue is whether, on balance, this consideration outweighs the public interest consideration in favour of disclosure.

41 In my view the public interest considerations in favour of disclosure are as follows:

(a) the general public interest in favour of disclosure of government information;

(b) disclosure of the information could reasonably be expected to enhance Government accountability; and

(c) the personal factors of APD in that he seeks access to this information so that he can pursue any rights he might have against the cyclist. The Information Commissioner has submitted that there is also a public interest in the administration of justice. In my view, a public interest of this nature does not arise in this application. By reason of subsection 55(2) of the GIPA Act, APD's personal interests are a factor to be considered in regard to the public interest in favour of disclosure. However, they do not of themselves necessarily become a public interest as contended for by the Information Commissioner.

42 On the basis of my findings, the public interest considerations against disclosure are as follows:

(a) the information was provided in confidence, subject to charges being laid and no charges have been laid;

(b) the information is personal information, which the person has said he does not wish to be disclosed;

(c) the Commissioner is relient on information of this nature in order to fulfill his functions and a disclosure of this information could reasonably be expected to prejudice the supply of information of this kind to the Commissioner; and

(d) the disclosure of the information could reasonably be expected to contravene the disclosure information protection principle in the PPIP Act.

43 In balancing these public considerations against disclosure against the public interests for disclosure, I am satisfied that there is an overriding public interest against disclosure. I make this finding, without having regard to the personal factors of APD that are relied on by the Commissioner for the purpose of determining that there is an overriding public interest against disclosure. In my view, having regard to the content of the disputed information, access to it will not contribute in any substantial way to enhancing Government accountability. Yet disclosure of the information would reveal personal information about a private citizen that was provided to the Commissioner's officers, in confidence, in the course of their policing duties. The fact that APD wishes to bring a private action against this person, in my view, does not alter the balance. This does not mean that APD does not have, or is prevented from seeking to bring an action against the cyclist. As pointed out by the Commissioner, the Rules of the Supreme Court, Uniform Civil Procedure Rules 2005, make provision for this. It is a matter for APD whether the information he has been provided with by the Commissioner and his inability to obtain the information pursuant to the GIPA Act would assist him in that regard. I appreciate APD's comment about not having a proliferation of legal proceedings. However, this must be viewed in the context in which the proceedings are brought. These proceedings are merit review proceedings and not civil proceedings between disputing parties.

44 Accordingly, for the reasons set out above, I find that the decision of the Commissioner is the correct and preferred decision and on this basis I order that the decision of the Commissioner is affirmed.

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Amendments

26 February 2013 - Party name anonymised

Decision last updated: 04 March 2013