The decision in Flack v Commissioner of Police, New South Wales Police  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 The application was subsequently withdrawn by the NSW police and no documents were produced under the subpoena.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.
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