Issue: March 2023
Atkinson v Department of Premier and Cabinet & Premier of NSW [2023] NSWCATAD 45
The applicant sought administrative review of the first respondent’s decision to refuse access to twelve documents on the basis that the information was subject to a conclusive presumption that there is an overriding public interest against disclosure as the documents contained Cabinet information and information the subject of a claim of legal professional privilege. Four of the documents were draft copies of a report, the final version of which had been publicly disclosed with approval from Cabinet.
At issue in the proceeding was the construction and effect of cl. 2(2)(a) of Sch. 1 of the Government Information (Public Access) Act 2009 (GIPA Act). The applicant and Information Commissioner submitted that cl. 2(2)(a) of Sch. 1 of the GIPA Act operates such that any information contained within a document which has been approved for public disclosure is not Cabinet information within the meaning of cls. 2(1)(a)-(e) of Sch. 1. The respondents submitted that cl. 2(2)(a) of Sch. 1 operates in respect of documents that are publicly disclosed, not the information contained in such documents.
The Tribunal accepted the respondents’ submissions on this issue. It found that the effect of cl. 2(2)(a) of Sch. 1 of the GIPA Act is that it is the document that is disclosed that loses the status of Cabinet information, not the information contained within the document. As a result, the public disclosure of the final version of the report did not mean that the draft versions of the report lost their status as Cabinet information.
FRM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 18
The respondent, in response to an access application under the GIPA Act, provided the applicant with view-only access to body-worn video files showing two police officers at his house prior to his eventual arrest, principally on the basis that s. 40 of the Surveillance Devices Act 2007 prohibited their disclosure, such that there was an overriding public interest against disclosure of a copy of the files within the meaning of the GIPA Act.
In seeking administrative review, the applicant submitted than an exception to s. 40 was engaged because he was conducting an “investigation” into the officers’ conduct. He also submitted that a proper application of the public interest test would result in providing copy, not view-only, access to the videos, relying on generalised assertions as to the officers’ impropriety. The respondent submitted that the applicant was not relevantly “investigating” the officers and that considerable weight should attach to the prohibition in s. 40, which was not outweighed by any other factors raised or proved by the applicant. The respondent also relied on the sensitive nature of the information shown on the videos in submitting that their disclosure could prejudice the supply of confidential information.
The Tribunal affirmed the respondent’s decision, accepting each of her principal submissions. In applying the public interest test in s. 13 of the GIPA Act, it found that there was “nothing in the evidence” to overcome the considerable weight ordinarily given to s. 40 of the Surveillance Devices Act.
05 Jun 2023