Leydon v Commissioner of Police [2019] NSWCATAD 267

Read the decision here: Leydon v Commissioner of Police [2019] NSWCATAD 267  

Summary

The Tribunal reviewed the decision by the Commissioner of Police (respondent) to withhold information about an investigation into a missing person, sought by an access application under the Government Information (Public Access) Act 2009 (GIPA Act). The applicant sought information held by NSW Police Force regarding her mother who was missing since 1997. The Respondent released some information and decided to withhold information by claiming the public interest considerations against disclosure in clauses 1(d) and 1(f) with respect to responsible and effective government; clause 2(b) with respect to law enforcement and security; and clauses 3(a) and 3(b) with respect to individual rights in considering personal information of the access applicant’s mother. The Tribunal (at [61]-[62]), found that the Respondent’s evidence did not establish the relevant factual matters that explain how the impact of the release would achieve the stated outcome ‘reasonably expected to have the effect’ in the clauses relied on by the respondent. In conducting a fact finding assessment of the disputed information, the Tribunal found that the public interest considerations in favour of disclosure clearly outweighed the claimed public interest considerations against disclosure in a significant number of documents. The Tribunal considered that the section 55 personal considerations provided compelling grounds for providing the access applicant with access to much of the information. The Tribunal (at [68]) set aside the decision in part, and affirmed the decision in consideration of the disputed information listed in the Table at [67] of the Tribunal’s decision.

What you need to know

The decision highlights for agencies the requirement to present evidence which supports the claim that a public interest consideration against disclosure applies to the decision to withhold information.   

The Tribunal found the section 55 personal factors compelling in circumstances where the access applicant had broad knowledge of the personal information about the missing person which she had sought as an access applicant. The Tribunal also acknowledged the conduct of the agency’s decision-making in recognising the significant personal considerations of the access applicant, and noted (at [63]) that the respondent had continued positive reassessment of the application which had resulted in the ongoing proactive release of the information.

The decision identifies some factors which are particular to the information relating to investigation functions into missing persons. This included, the relevance of the age and confidential nature of the information to the Tribunal’s considerations against disclosure; and the factors adding to the weight in favour of disclosure, in that the information had lost any practical currency or value as it was obtained many years after the disappearance, and was sought many years later.

Legislative background

GIPA Act

Section 80(d) review of a decision to refuse to provide access to information in response to an access application

Section 15 principles that apply to public interest determination

Section 14 public interest considerations against disclosure (clauses 1(d), 1(f), 2(b), 3(a) and 3(b))

Section 55 personal factors of application

Review requirements and jurisdiction

Section 100 Administrative review of decision by NCAT

Factual background

In December 2017, Ms Leydon sought information from the respondent concerning “all information NSW police hold regarding the case of my missing mother - Marion Barter”.  The applicant’s mother was reported missing by her family in 1997, and she sought information to gain understanding of her mother’s circumstances, including whether she is still alive. During this time, the respondent had generated a significant amount of information arising from its investigations. On 17 October 2018, the Commissioner of Police made a decision to release some information, with the Schedule to the decision comprising 99 documents; and also withheld information on the bases of the overriding public interest considerations against disclosure in clauses 1(d), 1(f), 3(a) and 3(b). On 31 October 2018, Ms Leydon sought review of the decision by the NSW Information Commissioner, and the review report issued on 29 January 2019 recommended that the respondent make a new decision in respect of the personal information clauses in 3(a) and 3(b). On 31 January 2019 the Commissioner of Police advised Ms Leydon that he was not adopting the Information Commissioner’s recommendations, and on 13 February 2019, the applicant applied for administrative review to the Tribunal. The applicant’s case for the release of information (at [44]) included that she was the daughter of the missing person, the investigation commenced over 20 years ago and been suspended since 2011; and that no charges had been laid with no evidence that the NSW Police Force intended to commence criminal prosecution.

Tribunal findings

The Tribunal (at [35]-[43]), considered the respondent’s evidence provided through two affidavits by Chief Inspector White, that disclosure of information within the COPS system and Missing Person’s Files would be prejudicial to the effective exercise of the NSW Police Force’s investigative functions, particularly missing persons investigations.  The evidence (at [42]) confirmed the investigation is current and ongoing, and asserted that in respect of missing persons investigations, the quality of the information and the sensitivity attaching to such information is not diminished by the passage of time. The affidavit evidence also asserted that all of the withheld information had a valid ongoing basis for being kept confidential, irrespective of the fact that much of that information was over two decades old.

The Tribunal (at [61]) concluded that:

“… In my view the evidence of the witness does not 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.”

The Tribunal (at [61]-[62]) broadly agreed with the applicant’s submission that:

• the evidence does not establish the necessary facts regarding the nature of the information, the specific context in which it was supplied in the course of the investigation, and the circumstances which gave rise to an expectation of confidentiality
• the respondent has not demonstrated with any degree of specificity the likelihood that any meaningful detriment would result from the disclosure of information that is about ten years old
• any prejudice from disclosure has been ameliorated by the passage of time since the investigation has been suspended, and there are no active or anticipated legal or criminal proceedings

The Tribunal also considered the respondent’s main public interest consideration against disclosure argument (set out at [32]), which was similar to the analysis in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [25]-[34]. The Tribunal commented that the line of reasoning in Camilleri:

“… illustrates that even if the issue at play in a particular matter could be characterised as compelling, the Tribunal should not just look at the issue in isolation, but rather examine the issue to determine whether the agency’s ability in future would be impaired. Referencing Young CJ in Ryder v Booth (referred to in Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13) the issue is whether disclosure of this information would ‘impair’ the ability of the NSW Police Force to obtain this confidential information, that is information provided on a confidential basis, in future.”

The Tribunal (at [63]-[67]), weighed the personal factors of the application:  

• The personal information of the missing person, being the access applicant’s mother, is broadly known to the applicant, who also knew many aspects of her mother’s whereabouts and results of inquiries
• The matters set out at section 55(2) were compelling grounds for providing access to much of the information, and the Tribunal could not “glean any adverse grounds” under section 55(1) which would work against providing the information
• On balance, the Tribunal saw “nothing contrary to the principles set out in section 15 which would prevent the disclosure of the information, having regard to the weighing exercise of the competing public interest considerations against disclosure, balanced with the public interest in favour of disclosure.”

Tribunal outcome

The Tribunal set aside the respondent’s decision in part, and affirmed the remainder of the decision of the respondent.  The Tribunal made orders for the respondent to release the information in accordance with the findings, and orders for further information concerning the Central Names Index to be released, pursuant to further submissions filed 4 July 2019.