Posted on February 18, 2020 by Sophia Urlich and Carlo Zoppo

Does it matter that the Applicant knows? – Disclosure of confidential and personal information under the GIPA Act

In NCAT proceedings concerning applications for access to government information made under the Government Information (Public Access) Act 2013 (GIPA Act), applicants sometimes argue that confidential information or the personal details of an informant should be released to them as they already know about the information.

In Gabriel v Commissioner of Police [2020] NSWCATAD 51 (Gabriel), the Tribunal considered whether such knowledge on the part of an applicant is relevant to disclosure and clarified that a conservative approach should be taken with regard to the disclosure of confidential information and the personal details, and other identifying information, of informants.

Legislative framework

Under the GIPA Act, there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s5 of the GIPA Act).

The relevant public interest considerations against disclosure are limited to those listed in the Table to s14 of the GIPA Act (see s14(1) and (2) of the GIPA Act). The public interest considerations  include that the disclosure of the information could reasonably be expected to:

  • prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (cl1(d) of s14);
  • reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant (cl2(a) of s14);
  • reveal an individual’s personal information (cl3(a) of s14).

The facts

The documents at issue in Gabriel were records of COPS Events prepared by NSW Police, relating to investigations of the Applicant by NSW Police.

Ultimately, the Respondent relied on the public interest considerations against disclosure at cl1(d), cl2(a) and cl3(a) of s14 of the GIPA Act regarding confidential information, the identity of and supply of information by informants, and personal information.

Regarding the personal factors of the application, the Applicant had sought access to information held by NSW Police:

  • to gain an understanding of why his stepdaughter’s 2017 application to join NSW Police had been refused in connection with her being advised that she would need to complete a declaration regarding her association with him, and what his stepdaughter would need to disclose to improve her chances of becoming admitted;
  • to come to know why his criminal record included a warning regarding his hatred of police dated 15 March 2018, when he had last had a dispute with police in 2001;
  • as he suspected the recent interest in him by NSW Police was due to a more recent dispute he had had with his ex-wife and parents-in-law who had made allegations about him to NSW Police, including complaints his ex-wife made to a Sergeant who had put comments on the COPS database indicating that he was involved in serious criminal activities. The Applicant wanted to address those allegedly unfounded allegations and make the Sergeant accountable for what she had recorded about him.

The Tribunal made the following comments in relation the each of the public interest considerations against disclosure at issue.

Prejudicing the supply of confidential information which facilitates the exercise of an agency’s functions

The Tribunal found that the public interest consideration against the disclosure of confidential information at cl1(d) of s14 of the GIPA Act applies to the effect of disclosure ‘on confidential information at a general operational level’ rather than by reference to a particular case or the facts of a particular access application (see paragraph [34]).

The Tribunal was satisfied that the withheld information provided to NSW Police, recorded in the COPS Events at issue, was provided on a confidential basis, was confidential in nature, and the release or disclosure of that information could reasonably be expected to prejudice the supply of confidential information ‘which facilitates core functions of the police, namely the investigation and prevention of crime, the support of victims and the promotion of safety in the community’ (see paragraph [35]).

Revealing or tending to reveal the identity of an informant or prejudicing the supply of information from an informant

The Tribunal found that the Applicant’s knowledge of the identity of any or all of the informants was not relevant to the application of the public interest consideration against the disclosure of information relating to the identity of informants or the information they supply at cl2(a) of s14 of the GIPA Act.

In this regard, the Tribunal summarised the relevant submissions of the Respondent as follows at paragraph [38]:

The applicant says that he already knows the identity of the informant(s) or some of them. The respondent submits that even if the applicant does know their identity, it does not mean that their identity has already been revealed. Disclosure of the information would still reveal the identity of one or more informants because their identity has not so far been publicly disclosed. Moreover, the confidential evidence referred to above supports a finding that informants both generally and in this case would be discouraged from providing essential information to police if information which could reveal their identity was disclosed (our emphasis).

The Tribunal was therefore satisfied that disclosure of the information could reasonably be expected to reveal the identity of one or more informants, and also discourage them from providing information to NSW Police in the future (see paragraph [44]).

Revealing an individual’s personal information

With regard to the public interest consideration against the disclosure of an individual’s personal information at cl3(a) of s14 of the GIPA Act, the Tribunal found that the disclosure of the information at issue would reveal the personal information of a number of individuals and that, even if the Applicant was aware of some of that information following the production of some documents by NSW Police in response to an earlier Local Court subpoena, disclosure would ‘still “reveal” the personal information because it has not been made publicly known…’ (see paragraph [48].

Balancing exercise

The Tribunal weighed up the considerations for and against the disclosure of the information at issue and determined, at paragraph [60], that:

the public interest considerations against disclosure are serious and concerning. They carry significant weight. The public interest considerations in favour of disclosure are important but not as significant, in my view, as the potential harm which could be caused by disclosure. 

The Tribunal accordingly affirmed the decision under review.

Key takeaways

Often in proceedings before the NCAT, the applicant will suggest that the information they seek is already known to them. Their supposed knowledge may relate to the name of an informant or the complainant, or the personal information contained in a document they seek to access.

The decision in Gabriel makes it clear that the belief or knowledge of an applicant is irrelevant to the consideration of whether to disclose confidential or personal information pursuant to the GIPA Act, and what is relevant is whether the information has previously been disclosed in the relevant sense.

The decision in Gabriel can be read here.

To discuss this blog or any other GIPA-related matter, please contact Carlo Zoppo, Partner on 8235 9705 or Sophia Urlich, Lawyer on 8235 9708.