Betzis v Commissioner of Police [2020] NSWCATAD 71

Read the decision here:  Betzis v Commissioner of Police [2020] NSWCATAD 71  

Summary

The Tribunal reviewed the decision by the Commissioner of Police (respondent) to withhold a coronial brief of evidence provided to the NSW Coroner, and police investigation materials which had been sought under the Government Information (Public Access) Act 2009 (GIPA Act). This information concerned the respondent’s investigation into the death of the applicant’s father, which had been referred to the Coroner. The Tribunal (at [37]) found that the coronial brief of evidence was excluded information, and (at [40]) that the documents on the E @gle.i database which were also in the brief were excluded information. The Tribunal (at [88]) also affirmed the respondent’s claims that the public interest considerations against disclosure outweighed those considerations in favour.

What you need to know

The decision confirms that an access application may comprise a request for information that is found to be excluded information, as well as other government information which will be subject to the public interest test in section 13.

Information that is determined to be excluded information under the GIPA Act, but has been provided to the access applicant through another jurisdiction, retains its character as excluded information; and the fact it has been provided does not overcome this conclusive presumption of an overriding public interest consideration against disclosure.

The decision also provides guidance on the legislative context for the exercise of the discretion in section 60(1)(d) to refuse to deal with the application, with the Tribunal (at [20]) confirming that the mere fact that some information has been provided to an applicant through subpoena or other order, does not necessarily mean the discretion should be exercised in the agency’s favour; factors of a personal kind, related to the particular application and the access applicant’s personal circumstances, may also be relevant.

Legislative background

GIPA Act

Section 80(c) review of a decision to refuse to deal with an application

Section 80(d) review of a decision to refuse to provide access to information

Section 60(1)(d) refuse to deal with the application where the information is available to the applicant, having been produced by subpoena or other order

Section 14 public interest considerations against disclosure (clauses 1(d), 1(e), 1(f), 2(a), 2(b), 3(a), 3(g) and 6(1))

Clause 1 of Schedule 2, excluded information

Review requirements and jurisdiction

Section 100 Administrative review of decision by NCAT

Factual background

In June 2018, the applicant made an access application for the brief of evidence provided to the coronial investigation into the death of her father. The agency decided to withhold in full, the coronial brief of evidence on the basis it was excluded information under clause 1 of Schedule 2 of the GIPA Act; and to withhold in part, the agency’s investigation material contained in the E @gle.i database either because the information was excluded information contained in the coronial brief, or because an overriding public interest consideration against disclosure applied (clauses 1(d), 1(e), 1(f), 2(a), 2(b), 3(a), 3(g) and 6(1)). The Tribunal also  considered the agency’s exercise of the discretion in section 60(1)(d), and the claim by the agency that the coronial brief and much of the investigation information had already been provided to the applicant through summonses in other Tribunal proceedings dealing with the applicant’s application for victims support.

Tribunal findings

The Tribunal (at 37]) was satisfied that the coronial brief was excluded information within the meaning of clause 1 of Schedule 2 of the GIPA Act. The Tribunal (at [36]) found in favour of the respondent’s argument that the information relates to the judicial functions of a court (clause 1 of Schedule 1), that the making of the decision by the Coroner on the basis of the information was characterised as ‘judicial’ and was integral to the Coroner’s decision-making process.  

The Tribunal was also satisfied, on the basis of the evidence of the email dated 25 July 2019 to the Crown Solicitor’s Office, that the Coroner did not consent to its disclosure to the applicant. The Tribunal (at [37]) confirmed that:

“… the fact that access to most of the coronial brief has been provided through other means has no bearing on whether the information is excluded information under the GIPA Act.”

The Tribunal (at [30]) had explained this statement further, by stating:

“Government information can be sought and obtained through a variety of means. The fact that information may have already been released to a person in other circumstances does not change the character of the information as ‘excluded information’ under the GIPA Act. The provisions which apply to the characterisation of the relevant information are to be found solely within the GIPA Act. The issues for determination concern whether or not under that Act the information is ‘excluded information’.”

In relation to the police investigation information in the respondent’s E @gle.i database that was not excluded information, the Tribunal (at [43]-[88]) considered the various public interest considerations against disclosure claimed by the respondent. The Tribunal (at [87]) found that the evidence supported the respondent’s claims concerning the need to maintain the integrity of police investigations and, in particular, to maintain the ability of the NSW Police Force to carry out its core responsibilities, which includes the investigation of suspicious deaths.

On the matter of the exercise of the discretion in section 60(1)(d), the Tribunal (at [25]) determined not to exercise its discretion to refuse to deal with the application to the extent that the documents in the coronial brief had already been made available to the applicant in the victims support proceedings. The Tribunal (at [16]-[25]), set out the legislative context for section 60(1)(d), and followed the Appeal Panel’s approach in Commissioner of Police v Danis [2017] NSWCATAP 7 that section 60 is clearly designed to give agencies some flexibility in the administration and processing of requests, such as by having to reprocess applications that have already received attention by other official means (the focus of section 60(1)(d)).  Following Danis at [49], the Tribunal also commented (at [20]) that section 60(1)(d) is not intended to be an exhaustive statement of the matters to be taken into account in any particular case ... there may be factors of a personal kind, related to the particular application and the access applicant’s personal circumstances, that may also be relevant.”

Tribunal outcome

The Tribunal was satisfied that, on balance, the public interest considerations against disclosure outweighed the public interest considerations in favour of the disclosure. The correct and preferable decision was to affirm the decision under review.