Access to police investigation files denied under GIPA

Key Points: 

• There is a strong public interest consideration against the disclosure of police investigation files relating to misconduct by others. Such workplace investigations should be conducted in confidence to protect complainants from reprisal and to encourage witnesses to supply information relevant to the complaint and the complaint process.

• Absent special circumstances, the general public should not be made privy to covert police methodologies as the disclosure of such information has the potential to negatively impact the effective discharge of that agency’s function.

Section 5 of the Government Information (Public Access) Act 2009 (GIPA Act) establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
 
NLAC contended that there were strong public interest considerations against the disclosure of the investigation files on the basis that their disclosure could reasonably be expected to:

1. prejudice the supply of confidential information that facilitates the effective exercise of NLAC’s functions;
2. reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice the deliberative processes of  NLAC;
3. otherwise prejudice the effective exercise of NLAC’s functions;
4. result in an action being brought against NLAC for breach of confidence or otherwise result in the disclosure of information provided to it in confidence; and
5. prejudice the conduct, effectiveness or integrity of an investigation or review conducted by or on behalf of NLAC by revealing its purpose, conduct or results.

In support of the above grounds the Chief Inspector of NLAC drew particular attention to:

1. the need for complainants, the Professional Standards Command (PSC) (being the command responsible for conducting particular investigations into police misconduct) and relevant complaints management teams to be able to have frank deliberations about police officer misconduct and the investigation of such misconduct;
2. the negative impact that the disclosure of deliberations and decisions of the investigative arm of the NSW police force might have on the effectiveness of the PSC;
3. the critical need that persons not be given an opportunity to understand covert police methodology; and
4. the need to conduct workplace investigations, both in the public and private sphere, in confidence to protect complainants from reprisal and to encourage witnesses to supply information relevant to the complaint and the complaints process.

NCAT agreed with the grounds advanced by NLAC and the Chief Inspector. It held that those grounds are “significant and warrant protection in workplace situations, but particularly in regards to the NSW police force, where it is desirable that complaints and witnesses can come forward with confidence that their personal details will not be disclosed, potentially exposing them to reprisal action.” NCAT held that for these reasons and for the benefit of the public it is essential that police officers do not know the internal workings of such investigations. On this basis the Applicants’ request was denied.
 
Post by John Kell and Vanja Simic