ALQ December 2022 GIPA

Issue: December 2022

GIPA 

Tribunal affirms decision to not grant access to commands and complaint information 

Access the decision: Guimaraes v Commissioner of Police, NSW Police Force [2022] NSWCATAD 372

The applicant sought access to commands and complaints information in relation to a particular NSW police officer. The officer was involved in the arrest of the applicant after a traffic stop for random alcohol and drug testing. The Commissioner refused access to the requested information on the basis of an overriding public interest against disclosure pursuant to s 58(1)(d) of the Government Information (Public Access) Act 2009 (“the GIPA Act”). The applicant sought review of that decision.

The Tribunal affirmed the decision under review. The most significant factors were that “disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency’s functions” and that “disclosure of the information could reasonably be expected to have found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence” (see cls. 1(d) and 1(g) of the table to s. 14 of the GIPA Act).

Body-worn video and the GIPA Act

Access the decision: “FDY” v Commissioner of Police, NSW Police Force [2022] NSWCATAD 367

The Tribunal at first instance held that the secrecy provision in s. 40 of the Surveillance Devices Act 2007 (“the SD Act”) applied to body-worn video footage of a police attendance at the applicant’s mother’s house. The applicant appealed the decision.

The Appeal Panel: considered that the text of s. 40 of the SD Act is plain and unambiguous and reflects the intention of Parliament to ensure secrecy of information under the SD Act. It rejected the appellant’s submission that the prohibition in s. 40 of the SD Act must be read down; considered that the public interest consideration against disclosure in cl. 6 of the Table to s. 14 of the GIPA Act specifically recognises that, despite provisions allowing disclosure of information, where this would lead to the contravention of the provision of any other Act or statutory rule, the public interest is against disclosure; distinguished the facts of this matter from other cases where the Tribunal has found that the public interest weighs in favour of disclosure of body-worn video footage; and, concluded that the footage was relevantly “protected information” for the purpose of the SD Act, subject to the prohibition in s. 40 of that Act. The Appeal Panel found no error in the interpretation arrived at by the Tribunal.

Affirmation of various decisions under the GIPA Act

Access the decision: “FNJ” v Commissioner of Police, NSW Police Force [2022] NSWCATAD 130

The applicant sought administrative review of the respondent’s determination of eight separate applications for information he had made. The respondent agreed to deal with all eight applications together after the applicant only paid a single application fee.  

While not critical of the respondent’s attempt to accommodate the applicant by dealing with his applications together, the Tribunal questioned whether doing so was consistent with the structured and timely approach the GIPA Act provides for administrators to deal with and determine access applications. 

Nevertheless, the Tribunal: was satisfied that s. 60(1)(d) and (e) applied with respect to certain information requested under the GIPA Act, as the same information had been the subject of subpoenas in various legal proceedings, and the applicant remained a party to proceedings in the Children’s Court in which he could apply for information; was also satisfied that the correct and preferable decision was to refuse to deal with these parts of the application, particularly in view of the considerable resources that had already been expended in responding to the applicant’s subpoenas, and having regard to the sensitivity of information requested; determined that recordings made by the Fixated Persons Unit were “documents” created by the Counter Terrorism and Special Tactics Command, such that the recordings were conclusively presumed to be subject to an overriding public interest against disclosure under Sch. 1, cl. 7 of the GIPA Act; and, determined that there was an overriding public interest against disclosure of information contained in Police Notebooks and a COPS event that would allow for the identification of an informant, which would disclose information supplied in confidence and related to children, on the basis that the public interest considerations against disclosure at cll. 1(d), 1(f), 1(g), 2(a) and 3(g) applied and outweighed the public interest considerations favouring disclosure. 

Searches, personal information and information under Guardianship Act

Access the decision: Ugur v NSW Trustee and Guardian [2022] NSWCATAD 373

The applicant sought access under the GIPA Act to records held by the respondent relating to himself. The respondent provided him with a large volume of responsive information but refused access to the names and personal information of individuals who were not officers of NSW government agencies. The applicant sought administrative review of the respondent’s determination. 

The Tribunal: was satisfied that the respondent had conducted reasonable searches, as required by s. 53 of the GIPA Act, and that there were no reasonable grounds for believing further documents exist responsive to the applicant’s access application; accepted that cll. 3(a) and (b) of the Table to s. 14 applied with respect to the redacted personal information and considered these factors significant as disclosure under s. 73 of the GIPA Act is unconditional and, effectively, ‘disclosure to the world at large’; and, found that the secrecy provision in s. 101 of the Guardianship Act applied to some information and, accordingly, that the public interest consideration against disclosure at cl. 6 of the Table to s. 14 applied. (In considering the policy underlying the secrecy provision [as required by cl. 6(2)], the Tribunal found that s. 101 reflects the legislative concern to preserve confidentiality over the often sensitive personal and medical circumstances in which a guardian may need to be appointed and take a role in managing an individual’s affairs. The Tribunal considered it significant that s. 101 makes no express exception with respect to the person the subject of the guardianship order. In this matter, the Tribunal found that s. 101 operated to ensure that third parties could be comfortable communicating frankly with the guardian in the best interests of the subject of the order.)

Information supplied in confidence to police

Access the decision: Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 362

The applicant sought access to information relating to a police investigation of a traffic incident, which led to the issue of a Question of Fitness to Drive notice to the applicant. The applicant sought administrative review of a decision to refuse access to information (including a witness statement and a handwritten note) that would allow identification of a witness who claimed to have seen the applicant reverse into a parked car. 

The Tribunal found that each of the public interest considerations against disclosure relied on would apply to the information in issue, as its disclosure would: reveal information supplied in confidence to the respondent and prejudice the future supply of such information (cl. 1(d)); reveal the identity of an informant (cl. 2(a)); and, reveal personal information (cl. 3(a)). The Tribunal: rejected the applicant’s argument that the informant’s identity had already been revealed into the public domain when they left a folded note on the damaged car’s windscreen; found that placing a note on a car’s windscreen does not amount to making it known to an audience, and that the fact of the windscreen being in a public parking space does not, of itself, make its contents known to the public; and, was satisfied that the public interest considerations against disclosure outweighed the public interest favouring disclosure of the withheld information. 

This decision is currently the subject of an appeal.  

Other decisions in this issue

 

Last updated:

30 Dec 2022

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