Medlyn v Commissioner of Police [2020] NSWCATAD 125

Read the decision here: Medlyn v Commissioner of Police [2020] NSWCATAD 125

The applicant applied for access under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to victim and witness statements relating to criminal charges laid against him in 2007. The applicant had been provided a copy of the information during criminal proceedings, but it had been destroyed in a fire. The Tribunal affirmed the decision of the agency to refuse to provide access to the information on the basis of an overriding public interest against disclosure. The Tribunal also considered an alternative argument advanced by the respondent, that the correct and preferable decision was to refuse to deal with the application under section 60(1)(d) of the GIPA Act on the basis that the information was available to the applicant as a result of having been produced in compliance with an order of a court for the production of documents. In determining that a decision under that provision was not justified, the Tribunal provided guidance about the discretion to refuse to deal under section 60(1)(d).

What you need to know

Section 60(1) of the GIPA Act sets out exhaustive reasons for which an agency may refuse to deal (in whole or in part) with an access application. An agency may not refuse to deal with an access application for any other reason.

Section 60(1)(d) of the GIPA Act provides that an agency may refuse to deal with an access application (in whole or in part) because:

• the information is or has been the subject of a subpoena or other order of a court for the production of documents, and
• the information is available to the applicant as a result of having been produced in compliance with the subpoena or other order.

In circumstances where a reason under section 60(1) is established, the agency (and the Tribunal on external review) has a discretion to decide to refuse to deal with an application. On external review by the Tribunal, there is an onus on the agency to establish that such a decision is justified.

Legislative background

GIPA Act

Section 12 Public interest considerations in favour of disclosure

Section 13 Public interest test

Section 14 Public interest considerations against disclosure

Table to section 14 public interest considerations against disclosure: clause 1(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions; clause 1(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; clause 3(a) reveal an individual’s personal information; clause 3(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002; clause 3(g) in the case of the disclosure of personal information about a child — the disclosure of information that it would not be in the best interests of the child to have disclosed

Section 60 Decision to refuse to deal with application

Section 80 Which decisions are reviewable decisions

Section 100 Administrative review of decision by NCAT

Civil and Administrative Tribunal Act 2013

Section 30 Administrative review jurisdiction

Administrative Decisions Review Act 1997

Section 7 Meaning of ‘administratively reviewable decision’

Section 9 When administrative review jurisdiction is conferred

Section 63 Determination of administrative review by Tribunal

Factual background

During the administrative review proceedings before the Tribunal, the applicant narrowed the scope of his application to the observations made by the witnesses, including victims, and not the complete statements. The applicant consented to the redaction of any information that would identify the witnesses in any way, and any information that would identify the location or the time of the event. On the basis of the significantly narrowed scope, the agency’s decision was remitted to the agency for reconsideration: Medlyn v Commissioner of Police, NSW Police Force [2019] NSWCATAD 89.

In its subsequent decision, the agency determined to release certain information to the applicant but withhold the majority of the information in the statements on the grounds that there was an overriding public interest against disclosure of that information. The agency relied on clauses 1(d), 1(g), 3(a), 3(b) and 3(g) of the Table to section 14 as public interest considerations against disclosure. This became the reviewable decision before the Tribunal.

During the proceedings the respondent also submitted it was open to the Tribunal to find that the correct and preferable decision was to refuse to further deal with the applicant’s access application under section 60(1)(d) of the GIPA Act. The respondent submitted that the statements had been served on the applicant in the police brief of evidence pursuant to an order of the court under section 61(1) of the Criminal Procedure Act 1986 (NSW). The respondent contended such an order was an order ‘of a court for the production of documents’ for the purposes of section 60(1)(d).

Tribunal findings

The role of the Tribunal in conducting administrative review is to decide the correct and preferable decision, having regard to the material before it. The Tribunal found that, even though the reviewable decision was not made under section 60(1)(d), the Tribunal could consider whether the information for which the applicant sought access fell within the terms of that provision, and if the correct and preferable decision was a decision to refuse to deal with the application for that reason.

Therefore, the Tribunal both applied the public interest test to the information and considered whether the application met the requirements of section 60(1)(d) as grounds to refuse to deal with the application.

Public interest test

The Tribunal found that clauses 1(d), 1(g), 3(a), 3(b) and 3(g) of the Table to section 14 of the GIPA Act were established and, after applying the public interest test, decided to refuse to provide access to the information because there was an overriding public interest against disclosure of the information.

Clause 3(g) of the Table to section 14: personal information about a child that would not be in the best interest of the child to have disclosed

There is a public interest consideration against disclosure of information under clause 3(g) if disclosure of the information could reasonably be expected to have the following effect: in the case of the disclosure of personal information about a child — the disclosure of information that it would not be in the best interests of the child to have disclosed.

The Tribunal found that the information in question contained very sensitive information about a child, who is now an adult. The Tribunal considered that ‘the phrase “in the interest of the child” is used in a generic sense (i.e. the individual rights of the child) and not used in the context of the child to which the information relates’ (at [115]). The Tribunal found that clause 3(g) can therefore apply where the individual concerned in the information is no longer a child, and that the consideration had been established in this case.

The Tribunal found that the fact that the person is no longer a child is ‘a factor to be taken into account in balancing where the competing public interest lays’ (at [116]) and gave the factor ‘considerable weight’ in applying the public interest test (at [126]).

Section 60(1)(d): information subject of a subpoena or other order of a court for production of documents

As outlined above, the Tribunal found that even though the agency had already dealt with the application and refused access after applying the public interest test, it was still open to the Tribunal, in determining the correct and preferable decision, to refuse to deal with the application under section 60(1)(d). However, the Tribunal observed that, given the objects of the GIPA Act (of opening government information to the public), it may be difficult for an agency to establish that a decision under section 60(1)(d) is justified in those circumstances.

The Tribunal considered that additional information could come to light to justify a decision under section 60(1)(d) on review. However, in this matter the circumstances in which the applicant had been given the statements and the fact that they had been destroyed in a fire had always been known.

Ultimately, the Tribunal observed that it was not necessary to make a finding in relation to the operation of section 60(1)(d) as the first limb was not met.

The Information Commissioner submitted that the words ‘order of a court for the production of documents’ should be understood as extending to an order that is analogous to a subpoena that requires the ‘production’ of documents to the court, examples of which were an order made under section 68 of the Civil Procedure Act 2005 (NSW) and an order made under section 36 of the Evidence Act 1995 (NSW).

The Tribunal examined the relevant provisions of the Criminal Procedure Act 1986, including those in existence at the time of the prosecution of the applicant (under sections 60 and 75 of that Act). The Tribunal found that such orders by a Magistrate, as to the timing of service of a brief of evidence on an accused, are procedural in nature and are not an order of a court for the production of documents for the purposes of section 60(1)(d) of the GIPA Act.

The Tribunal determined that even if its view as to the nature of orders under the Criminal Procedure Act 1986 was incorrect, there was no evidence of any order being made by the Magistrate in the relevant proceedings requiring the service of the brief of evidence to support the first limb of section 60(1)(d).

Based on these findings, it was not necessary for the Tribunal to consider the second limb of section 60(1)(d) and whether the information was available to the applicant.

Tribunal outcome

The Tribunal found that the correct and preferable decision was to refuse the applicant access to the redacted information in the victim and witness statements the subject of this application and affirm the decision of the respondent.