Australia: Flack – a GIPA decision

Last Updated: 4 April 2012
Article by Ashley Tsacalos

The decision in Flack v Commissioner of Police, New South Wales Police [2011] NSW ADT 286 was one of the earliest reported decisions under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) after it replaced the Freedom of Information Act 1989 (NSW) (FOI Act) on 1 July 2010. The case highlights that, despite the objective of more accessible government information under the GIPA Act, decision-makers will continue to be required to weigh up important public interest considerations for and against disclosure in determining whether government information should be released.


In January 2010, Ms Flack and her husband were each served with a provisional Apprehended Personal Violence Order (APVO), which was issued by the local court on application by Constable Rebecca Whitfield as a result of a neighbourhood dispute.

In response to the provisional APVO, Ms Flack and her husband arranged for a subpoena to be issued upon the NSW police which required it to produce all documents relating to Constable Whitfield's application to the local court. The application was subsequently withdrawn by the NSW police and no documents were produced under the subpoena.

On 26 October 2010, Ms Flack and her husband made an application for access, under the GIPA Act, to the documents which had been sought under the subpoena. The NSW police denied the application.

The information withheld was a series of witness statements and police notes which supported the application for the APVOs. The NSW police decided that the public interest in not disclosing the information outweighed the public interest in favour of disclosure under the GIPA Act.

Ms Flack applied to the New South Wales Administrative Decisions Tribunal (ADT) for review of the decision.

The GIPA Act establishes a principle that there is a general public interest in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

Public interest considerations in favour of disclosure are not limited. The GIPA Act does, however, provide examples of considerations in favour of disclosure. Relevant to this case, these include:

  • where the information is personal to the person to whom it is to be disclosed, and
  • where it could reasonably be expected to inform the public about the operations of agencies.

An overriding public interest against disclosure of information is only established where, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Unlike the assessment of public interest in favour of disclosure, public interest considerations that can be considered against disclosure are specifically limited to those set out under the GIPA Act. The considerations include where information could reasonably be expected to:

  • reveal another individual's personal information,
  • contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW)(PPIP Act),
  • prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, or
  • affect law enforcement and security.

In this case, the ADT decided that the words "could reasonably be expected to" ought to be given their ordinary meaning. That is to say that the ADT found them distinguishable from the words "would involve the unreasonable disclosure" previously contained in section 6(1) of the repealed FOI Act. This means that the previous complex tests used to decide whether there were public interest considerations against disclosure of information are no longer necessary (see for example, Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 aln n257). To find public interest considerations against disclosure of information under the new GIPA regime, all that must be found is that the information could reasonably be expected to have the undesired effect. Ultimately, this means that in every decisionmaking process, the public interest considerations against disclosure must be balanced against the public interest considerations in favour of disclosure of government information.


The ADT found that where there was an apparent conflict of public interest in disclosing information, the decision whether or not to disclose the information must: (a) identify the public interest in favour of disclosure; (b) identify the public interest against disclosure; and (c) determine where the balance lies.

Ms Flack argued a number of specific considerations to be taken into account in favour of disclosure under the GIPA Act. These may include specific information going to alleged misconduct of the NSW police. This was in fact the purpose for Ms Flack's application. The ADT rejected the argument and held that disclosure of the information would not reveal information of a kind that would substantiate such concerns.

Ms Flack also argued that the information had already been disclosed in earlier local court proceedings. The ADT again rejected the argument, finding that the substance of the requested information was not disclosed in the earlier proceedings.

Finally, Ms Flack argued that the information was personal information about her and her husband. The ADT agreed in relation to this point and identified it as a public interest consideration to be balanced with public interest considerations against disclosure.

The ADT found that disclosure of information 'could reasonably be expected' to reveal the personal information of persons other than the applicant. It was held that this is a valid consideration to be taken into account when balancing the competing public interests.

The ADT also found the information fell under section 18 of the PPIP Act. That provision restricts the disclosure of an individual's personal information to any other person, unless the circumstances give rise to an exception outlined under that provision. The ADT held that to disclose the information would be to disclose the private information of the witnesses who made submissions regarding the APVOs. Therefore, this information was taken into account in balancing the competing public interests.

Finally, the ADT found that the information could reasonably be expected to prejudice the future supply of witness information to the police. The ADT essentially decided that allowing such disclosure of witness information could deter future witnesses from providing information and prejudice the functions of police as a government agency.

For the reasons discussed above, in addition to the general presumption that government information should be disclosed, the single argument that remained in favour of disclosure was that it contained information relating to the applicant.

In favour of non-disclosure, the ADT found that: the information 'could reasonably be expected to reveal the information of other persons; the disclosure would result in a contravention of the PPIP Act; and that the disclosure may deter future witnesses providing statements to police and adversely affect the operations of police.

The ADT ultimately found that, on balance, the public interest fell in favour of not disclosing the information held by the NSW police. Significantly, the ADT identified that the 'real issue' in this case was the potential impact disclosure would have on future witnesses providing statements.


As one of the earliest GIPA Act decisions by the ADT, the case provides some insight as to how the ADT will approach GIPA Act matters and highlights the need for the decision-maker to balance competing public interests for and against disclosure of personal information – a balance that will depend on the fact of each individual case. In this case, the possible prejudice of the supply of future information to NSW police by witnesses was an important and determinative public interest consideration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ashley Tsacalos
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.