Choi v Commissioner of Police

[2021] NSWCATAD 156

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Choi v Commissioner of Police [2021] NSWCATAD 156

Hearing dates:

29 May 2020; 24 June 2020; 14 August 2020

Date of orders:

4 June 2021

Decision date:

04 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

G Sarginson, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW---Access to government information---Access application---Decision that information not held---Adequacy of searches conducted by the agency

ADMINISTRATIVE LAW---Access to government information---Refusal to deal with application---Public interest against disclosure---Whether overriding public interest against disclosure

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Armee v Brearley [2017] NSWCATAP 141

Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60

Betzis v Commissioner of Police [2020] NSWCATAD 71

Commissioner for Police, NSW Police Force v Barrett [2015] NSWCATAP 68

Commissioner of Police v DYD [2020] NSWCATAP 224

Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19

Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86

Denyer v Commissioner for Police, NSW Police Force [2018] NSWCATAD 160

Donnellan v Ku-ring-gai Council [2013] NSWADT 115

Fisher v Commissioner of Police [2021] NSWCATAD 44

Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133

Hurst v Wagga Wagga City Council [2011] NSWADT 307

O’Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77

Rivero v Commissioner of Police, NSW Police Force [2019] NSWCATAD 115

Thomson v Commissioner for Police [2021] NSWCATAD 53

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Jae Hee Choi (Applicant)
Commissioner for Police (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Crown Solicitors (Respondent)

File Number(s):

2019/00381499

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) applies to the material filed by the respondent on a confidential basis; to those reasons identified as [NOT FOR PUBLICATION]; to the evidence given in private before the Tribunal; and to the recording of that part of the proceedings (including sound recording and transcript) conducted in private. That material is not to be released to either the applicant or the public.

REASONS FOR DECISION

1. This is an application for administrative review of a decision of an NSW government agency under s 100 (1) of the Government Information (Public Access) Act 2009 (NSW) (‘the GIPA Act’).

2. Prior to the hearing, the respondent filed documents (‘the confidential evidence’) upon which it was submitted the documents were not served on the applicant because there was an overriding public interest against disclosure. It was submitted that it was necessary to receive that confidential evidence and hear argument about that confidential evidence in the absence of the applicant and the public.

3. Pursuant to s 107 (2) of the GIPA Act the Tribunal determined that it should conduct part of the hearing in private in respect of the confidential evidence (‘the private hearing’), and otherwise conducted the hearing in respect of the documents and submissions that did not fall within s 107 (1) of the GIPA Act in public (‘the public hearing’).

4. The public hearing concluded on 14 August 2020 and the private hearing dealing with the confidential evidence occurred on the same date, immediately after the conclusion of the public hearing.

BACKGROUND

5. The applicant has resided in South Korea for a number of years but has stated in written submissions to the Tribunal that she is an Australian citizen or an Australian resident (it is unclear which) and intends to return to Australia in any event. The applicant has been involved in a number of GIPA disputes with the respondent and other entities that have involved other legal proceedings, including proceedings in the Tribunal and the Appeal Panel of the Tribunal.

6. In written submissions to the Tribunal dated 5 March 2020, the applicant stated:

“I have an extraordinary litigation history”.

7. On 26 November 2019, the applicant made a GIPA application to the respondent. That application sought information described in 14 items (with the applicant using the description “Sub-Points” rather than “Items”). In this decision, the descriptive word “Item” will be used rather than “Sub-Point”.

8. The information sought will be discussed in detail later in this decision. However, the information sought can be relevantly summarised as follows:

1. An event report and log records for a domestic violence incident the applicant reported to Police in 1996 or 1997 (Items 1 and 2);

2. Documents, including log records, pertaining to COPS Event No E 55599078. That incident involved a pram carrying the applicant’s son and being pushed by the applicant being struck by a motor vehicle whilst the applicant and her son were crossing the intersection of George Street and Rugby Place, Sydney on 8 May 2014 (Items 3 and 4);

3. Documents, including log records, pertaining to COPS Event No E 62304804. That incident involved a report by the applicant to police on 4 October 2016 that the applicant’s former landlord had damaged her property and withheld items of her property (Items 5 and 6).

4. Documents, including log records, pertaining to COPS Event No E 26304804 (Items 5 and 6).

5. Log records showing when information relating to COPS Event No E 540486091 was accessed. That incident involved a report by the applicant to Police on 4 November 2016 that she was the victim of sexual assaults over a period of time perpetrated by an identified person (Item 7).

6. The name of the female Police officer the applicant spoke with at Dee Why Police Station on 4 November 2016 (Item 8).

7. The name of a Police officer who was present at the reception at the foyer at Dee Why Police Station at around 11 am on 12 October 2016 (Item 9).

8. The name of a Police Officer at the reception at the foyer of Dee Why Police Station between 9.30 am and 11.00 am who wrote information on a yellow ‘Post It’ note (Item 10).

9. A copy of the COPS Report Event No E 54048601 printed on December 2019 (including printing date on right top) (Items 11 and 12).

10. “Your information” (sic) kept by Sergeant Damon Flakelar for “September, October and November” 2016 including Duty Book and notebook (Item 13).

11. Log records of Police Officers Jennifer Thom, Ashlee Kaufer and Damon Flakelar for “September, October and November” 2016 in relation to RMS, COPS, IMS and I-Ask (Item 14).

9. On 28 November 2019, the respondent made a decision producing documents in respect of COPS Event No E 55599078 but refusing to deal with the remainder of the application under s 60 (1) (e) of the GIPA Act on the basis that the applicant was a party to current proceedings before a court and able to apply to the court for the information sought.

10. On 29 November 2019, the applicant filed proceedings in the Tribunal to seek review of the decision of the respondent dated 28 November 2019.

11. On 13 January 2020, a case conference occurred at the Tribunal. Relevantly, the orders made by the Tribunal at the case conference included:

1. The respondent review the decision of 28 November 2019 and provide a supplementary decision (including copies of any information) to the applicant by 10 February 2020 (Order 2);

2. The applicant consider any supplementary decision and inform the respondent and the Tribunal in writing by 9 March 2020 whether she regarded the supplementary decision as satisfactory (and the application for review would be withdrawn); or if she did not regard the decision as satisfactory provide reasons why she continued to object to decisions the subject of the proceedings (Order 4).

The Supplementary Decision

12. On 10 February 2020, the respondent made a supplementary decision. Written reasons were provided in the decision. The supplementary decision was as follows:

1. Items 1 & 2-Information not held (s 58 (1) (b) of the GIPA Act).

2. Item 3-The name of the officer was provided. A copy of the COPS Event Report E 55599078 had been released (with redactions) on 28 November 2019. A search of emails was being conducted and would be provided shortly. Other information requested was not held (s 58 (1) (b) of the GIPA Act).

3. Item 4-The COPS Audit Log in respect of COPS Event No E5599078 was refused on the basis that there was an overriding public interest against disclosure of the information (Section 58 (1) (d) of the GIPA Act). The public interest considerations identified were identified as Table 1 (f); Table 1 (g) and Table 2 (a) of s 14 of the GIPA Act.

Further, “audit logs held in RMS, IASK, and IMS” were not produced as “there are no relevant records held in RMS IASK, and IMS and therefore, no audit logs are held” (Section 58 (1) (b) of the GIPA Act).

4. Item 5-The COPS Event Report of E 62304804 was released with minor redactions. The redactions were made on the basis there was an overriding public interest against disclosure of the information (Section 58 (1) (d) of the GIPA Act). The public interest considerations were identified as Table 3 (a) of s 14 of the GIPA Act). The decision stated a search of relevant email was being conducted and “will be provide to you shortly”.

Other information requested was not provided as it was not held by the respondent (Section 58 (1) (b) of the GIPA Act).

In respect of COPS Event No E 26304804, the respondent stated no such event number existed, and was likely a typographical error from a document provided in other NCAT proceedings between the parties. No information was provided on the basis the information sought was not held by the respondent (Section 58 (1) (b) of the GIPA Act).

5. Item 6-The COPS Audit Log in respect of COPS Event No E 62304804 was refused on the basis there was an overriding public interest against disclosure (Section 58 (1) (d) of the GIPA Act). The public interest considerations were identified as Table 1 (f) and (g) and Table 2 (a) of s 14 of the GIPA Act.

Other information requested was not provided as the respondent held “no relevant records held in RMS, IASK, and IMS, therefore, no audit logs are held” (Section 58 (1) (b) of the GIPA Act). In respect of COPS Event No E 62304804 the respondent stated that no information was held (Section 58 (1) (b) of the GIPA Act).

6. Item 7-The COPS Audit Log in respect of COPS Event E 540486091 was refused on the basis there was an overriding public interest against disclosure (Section 58 (1) (b) of the GIPA Act). The public interest grounds identified were Table 1 (f) and (g); and Table 2 (a) of Section 14 of the GIPA Act.

The respondent stated that two records were held in “RMS that relate to this Event number: D/2018/104526 and D/2017/673857 which had been provided to the applicant on 2 May 2019. Such documents provided included “the audit logs…in full”.

The respondent stated that “there are no relevant records held in IASK and IMS, therefore no audit logs are held” (Section 58 (1) (b) of the GIPA Act).

7. Item 8-The name of the officer was identified.

8. Item 9-The information was not provided as the respondent did not hold the information (Section 58 (1) (b) of the GIPA Act).

9. Item 10-The name of the officer was identified.

10. Item 11-The information was not provided as the respondent did not hold the information (Section 58 (1) (b) of the GIPA Act).

11. Item 12-The information was not provided as the respondent did not hold the information (Section 58 (1) (b) of the GIPA Act). Additionally, the respondent stated that the information requested is “after your access application date”.

12. Item 13-The information was not provided as the respondent did not hold the information (Section 58 (1) (b) of the GIPA Act).

13. Item 14-The COPS Audit Logs in respect of COPS Event No E540486091 of 3 named officers was not provided as there was an overriding public interest against disclosure (Section 58 (1) (d) of the GIPA Act). The grounds identified were Table 1 (f) and (g); and Table 2 (a) of Section 14 of the GIPA Act.

In respect of records held in RMS, the respondent stated that there were “no audit records in RMS for the named officers”. The respondent stated that there were “no relevant records held in IASK and IMS, therefore no audit logs are held (Section 58 (1) (b) of the GIPA Act.

13. On 5 March 2020, the applicant filed with the Tribunal and served on the respondent an 18-page document titled “Applicant’s Submissions”. This document is, in substance, a document complying with the directions of the Tribunal dated 13 January 2020, as it sets out why the applicant disagrees with the supplementary decision of the respondent dated 10 February 2020 and presses for review of that decision.

DOCUMENTS AND SUBMISSIONS-OPEN HEARING

Applicant

14. The applicant filed and served a voluminous amount of documents in support of the application for review. The applicant’s documents contained a mixture of evidence (reference to factual matters), and submissions (reference to legal arguments).

15. In accordance with Section 38 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (‘the NCAT Act’) the Tribunal admitted documents into evidence subject to weight and relevance and considered all of the written materials of the applicant that were identified and marked as exhibits at the hearing.

16. The documents of the applicant admitted into evidence were bundles of documents filed on the following dates:

1. 3 March 2020

2. 5 March 2020

3. 12 May 2020

4. 28 May 2020

17. The applicant also attached documents to the application for review filed with the Tribunal dated 29 November 2019 which have also been considered by the Tribunal in support of the application for review.

18. Further, the applicant sent to the Tribunal written submissions and a document in Korean in support of her application to adjourn the hearing on 14 August 2020. The application for an adjournment; and the Tribunal’s reasons for refusing the adjournment, are dealt with in the reasons that follow.

Respondent

19. The following documentary evidence of the respondent was admitted:

1. Affidavit of Chief Inspector Matthew McCarthy dated 9 April 2020.

2. Statements of Matthew Smith, Senior Advisor Officer, dated 14 April 2020 and 26 May 2020.

20. The respondent also filed and served written submissions dated 14 April 2020 and 26 May 2020 (submissions in reply).

CONDUCT OF THE HEARING

21. Prior to the first date of hearing, the Tribunal had directed that the hearing be conducted by telephone. As the applicant resided overseas, the applicant was directed to telephone the Tribunal at the appointed date and time.

22. A Korean interpreter was booked for the hearing. At the commencement of the hearing, the applicant was asked whether she wished for the interpreter to be used to interpret everything that was said at the hearing, or whether the applicant wished to participate in English and use the interpreter at any stage when she did not understand what was said; or did not feel she could adequately express herself in English.

23. The applicant stated that she would participate in English and ask to use the interpreter at any stage of the hearing when she did not clearly understand what was said in English or did not feel she could adequately express herself in English.

24. At the commencement of the hearing, the applicant sought that the hearing be conducted by Audio Visual Link (‘AVL’) as she wished to see the Tribunal Member and the respondent’s Solicitor and witnesses. The hearing, at direction of the Tribunal, had been listed by telephone. No adequate reasons were established for the hearing to be conducted by AVL rather than telephone, in circumstances where the real issue in dispute was review of the respondent’s decision not to produce certain information to the applicant under the GIPA Act. The application for an AVL hearing was refused.

25. The applicant enquired about the venue from where the Solicitor for the respondent was participating in the hearing. The Solicitor for the respondent stated she would participate at the hearing sitting alone in a conference room at the premises of the Respondent’s Solicitors.

26. The applicant commenced an application for the Member to recuse himself because the Member was not sufficiently “experienced”. However, that application was not ultimately pressed, and it was unnecessary for the Tribunal to make a ruling on that issue.

27. The Tribunal explained the procedure of a GIPA review hearing to the applicant, including that part of the hearing would be open to the public and part of the hearing would be conducted privately without the participation of the applicant (the private hearing) by reason of the respondent filing confidential evidence under s 107 (1) of the GIPA Act.

28. The applicant stated that she wished to cross examine both Chief Inspector McCarthy and Mr Smith on their evidence. She indicated that she wished to cross examine Chief Inspector McCarthy before Mr Smith.

29. The Tribunal then dealt with objections the applicant raised to the evidence of Chief Inspector McCarthy and Mr Smith. As discussed previously, the Tribunal determined that the evidence of both parties should be admitted subject to weight and relevance.

30. A period of time was spent confirming with the applicant what documents she had filed and served in the proceedings and was relying upon at the hearing.

31. A delay then occurred because the interpreter became unavailable. A new interpreter was arranged.

32. The various procedural matters and issues with the interpreter took up the majority of the hearing time on 29 May 2020. The parties were informed the hearing would be part-heard to a new hearing date.

33. At the end of the hearing on 29 May 2020, the applicant made a fresh application that the hearing be conducted by AVL. The further reason given was that a Member of the Tribunal had, in other proceedings, drawn the erroneous conclusion that the applicant was an “alcoholic” and an AVL hearing would assist the applicant in dispelling such an erroneous conclusion.

34. The Tribunal was not satisfied that it should depart from the previous direction of the Tribunal that the hearing be conducted by telephone; or its previous rejection of the application by the applicant for the hearing to be conducted by AVL.

35. Further, there was no evidentiary or other material before the Tribunal indicating that the applicant was an alcoholic, or any other adverse inference regarding the applicant. No adverse inference about the applicant’s character, honesty, or integrity is drawn by the Tribunal.

36. The hearing was then adjourned to 24 June 2020. Due to further issues with interpreter availability and technical problems with the applicant calling the Tribunal from Korea, the hearing did not materially advance on 24 June 2020.

37. The hearing was then adjourned to 14 August 2020.

Application by the Applicant to Adjourn the Hearing of 14 August 2020

38. In the period from 22 July 2020 the applicant sent a series of emails seeking that the hearing of 14 August 2020 be adjourned.

39. Under s 51 of the NCAT Act the Tribunal has the power to grant an adjournment. The decision whether to grant an adjournment is involves the exercise of discretion. Principles applicable to adjournment applications have been considered by the Appeal Panel of the Tribunal on a number of occasions (e.g. O’Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77; Armee v Brearley [2017] NSWCATAP 141; and Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133). Such principles can be relevantly summarised as follows:

1. Matters should almost always proceed on the date fixed for hearing.

2. An application for an adjournment should be seen as the exceptional rather than the ordinary course.

3. If the adjournment is caused, at least in part, by the delay of the party seeking the adjournment or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for and its absence weighs heavily, and sometimes decisively, against the grant of an adjournment.

1. The effect of the grant of the adjournment on the other party is a matter to be considered.

2. Procedural fairness may be denied to a party if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person’s case.

40. In an email of 22 July 2020 the grounds upon which the applicant sought an adjournment were that she was “unavailable” on 14 August 2020; and that the respondent had not provided documents to her. The Tribunal made directions regarding each party filing and serving its material regarding the adjournment application. The respondent filed and served submissions opposing the adjournment application and stating that all evidence it was relying upon (other than the confidential documents filed with the Tribunal) had been served by the respondent.

41. In her email of 22 July 2020 the applicant did not state why she was “unavailable” on 14 August 2020.

42. On 5 August 2020 filed and served documents in support of the adjournment application, relevantly being a copy of previous decisions of the Tribunal involving the applicant and further asserting that she had a medical appointment on 14 August 2020.

43. On 7 August 2020, the Tribunal issued orders as follows:

The Tribunal has received a further email from the applicant dated 5 August 2020. In essence, the email states that the applicant has a doctor’s appointment on 14 August 2020 but that she will only provide documentary evidence if (i) the Tribunal guarantees an adjournment will be given; and (ii) the Tribunal has any document provided translated from Korean and pays for interpretation of the document.

The applicant is applying for an adjournment and the onus is upon the applicant to provide any documentary evidence sought to be relied upon to support the adjournment application, including arranging for any document to be translated into English. It is not the responsibility of the Tribunal to arrange and pay for the cost of interpreting a document. The Tribunal also cannot “guarantee” that it will grant an adjournment.

No further evidence or reasons have been provided to the applicant as to why she cannot attend (by telephone) and participate in the hearing on 14 August 2020. Accordingly, no basis for granting an adjournment has been established and the hearing date is confirmed.

44. On 12 August 2020, the applicant filed further documents and submission with the Tribunal in support of the adjournment application. Such documents included previous decisions of the Tribunal involving the applicant; and a document in Korean that was asserted to be evidence of the medical appointment on 14 August 2020. The applicant submitted that the medical appointment was to ascertain if the applicant had cancer.

45. On the morning of 14 August 2020 the Tribunal made the following orders which were emailed to the applicant:

The applicant has sent a further email on 12 August 2020 to the Tribunal attaching documents and seeking that the hearing on 14 August 2020 be adjourned because the applicant has a medical appointment.

The documents attached which the applicant asserts show that she has a medical appointment and the details of the appointment are in Korean. The applicant asserts that it is the responsibility of the Tribunal to the documents interpreted.

The Tribunal has made clear in its previous decisions refusing the adjournment application that it is the responsibility of the applicant to provide documents which have been interpreted into English if she is relying on the documents to support the adjournment application.

The applicant has also provided copies two NCAT decisions involving the applicant in previous proceedings but has not stated how such decisions are relevant to the adjournment application or support the adjournment application, which is based on the applicant having a medical appointment to attend on 14 August 2020.

The fresh information provided does not cause the Tribunal to change its previous decisions to refuse the adjournment application. The hearing date of 14 August 2020 is confirmed.

46. The applicant clearly received the email of the orders of the Tribunal on 14 August 2020 because at 8.53 am she responded to those orders by email to the Tribunal. In that email, she specifically referred to the orders of the Tribunal dated 14 August 2020.

47. The applicant stated that “Korean people are unable to access the NCAT website because the traffic from NSW to Korea is disconnected. Thus, I am unable to access the AVL”. The applicant further stated that she needed to consult a doctor to ascertain if she had cancer and “You had better fix your website in the meantime I will (fix) my heath and you fix your website”.

48. The hearing notice issued by the Tribunal dated 3 July 2020 giving notice of the time, date, and manner of hearing on 14 July 2020 made clear that the hearing was to be “by telephone” and was not an AVL hearing. As discussed previously, applications by the applicant to have the hearing conducted by AVL had been refused by the Tribunal.

49. At the hearing on 14 August 2020 the applicant did not telephone the Tribunal. The hearing was adjourned for a period to allow the applicant to contact the Tribunal. The Tribunal reconvened at approximately 10.50 am. There had been no contact from the applicant, including any emails from the applicant to the Tribunal Registry to indicate she was attempting to contact the Tribunal.

50. The issue of a further adjournment of the hearing was raised with the respondent. The respondent did not consent to the hearing being further adjourned.

Reasons for Refusal of Adjournment of Hearing on 14 August 2020

51. The Tribunal determined that the hearing should proceed, there being no satisfactory grounds to adjourn the hearing. The Tribunal accepts that if the applicant had a medical appointment for a serious medical condition that directly clashed with the hearing on 14 August 2020 that would be strong evidence in favour of adjourning the hearing. The Tribunal also accepts that the applicant had previously indicated that she wished to cross examine the respondent’s witnesses, and the hearing proceeding ex-parte on 14 August 2020 meant that the applicant did not cross examine Mr Smith or Chief Inspector McCarthy.

52. However, weighed against those considerations is that the applicant had been given ample opportunity to provide documentary evidence by way of a document interpreted into English that she had a medical appointment on 14 August 2020; the time of such an appointment; and the nature of the appointment.

53. The applicant also raised in her email on 14 August 2020 (and this issue had been raised in emails to the Tribunal leading up to 14 August 2020) that there were internet difficulties in Korea. However, there was nothing to establish that any such difficulties prevented (or deleteriously affected) the ability of the applicant to participate in the hearing on 14 August 2020 by telephone.

54. The matter also had a long procedural history (although the Tribunal does not attribute previous adjournments to any conduct of the applicant); and procedural directions of 7 and 14 August 2020 made clear the obligation was on the applicant to provide appropriate evidence to support an adjournment application. The applicant failed to do so.

55. Further, in respect of any cross examination of the applicant of Mr Smith and Chief Inspector McCarthy, the Tribunal also takes into account that under s 105 of the GIPA Act, the onus is on the respondent to justify its decision not to provide the information sought. Accordingly, irrespective of any cross examination of Mr Smith and Chief Inspector McCarthy the legal onus is on the respondent to justify its decision.

56. Any cross examination of Mr Smith and Chief Inspector McCarthy would only have been permitted to the extent that it dealt with issues relevant to the real issues in dispute in the proceedings (s 36 (3) of the NCAT Act), not questions that related to the conduct of the respondent towards the applicant generally that fell outside the ambit of relevance to GIPA review proceedings.

57. The Tribunal has also considered the fact that Mr Smith and Chief Inspector McCarthy were not cross examined in circumstances where the applicant had indicated that she wished to cross examine such witnesses when attributing weight to the evidence of the parties.

58. Additionally, the Tribunal did not commence hearing submissions from the respondent at the open hearing until approximately 10.50 am. Had the applicant telephoned the Tribunal on 14 August 2020 in the period between 10.00 am and the conclusion of the open hearing, the applicant would have had the opportunity to question Mr Smith and Chief Inspector McCarthy (if she still wished to do so) and make oral submissions. The applicant would also have had the opportunity to make a further application for an adjournment. However, no telephone contact from the applicant was received on 14 August 2020.

59. The Tribunal then heard oral submissions from the respondent at the open hearing.

60. After such submissions were made, the private hearing occurred, dealing with the confidential material.

EVIDENCE OF THE RESPONDENT-OPEN HEARING

Affidavit of Chief Inspector McCarthy dated 9 April 2020

61. The affidavit of Chief Inspector McCarthy commences by setting out his employment history. He is currently Manager of the Spatial & Analytical Capacity Unit of the State Intelligence Command and has been in that position since February 2018.

62. Chief Inspector McCarthy states that the Computerised Operational Policing System (‘COPS’) was introduced in 1994 and is the computerised “method of capturing, storing any analysing operational intelligence on an organisation wide basis”.

63. Information within COPS is accessible to operational police and unsworn members of the police force. Additionally, the Roads and Maritime Service (‘RMS’ formerly known as the Roads and Traffic Authority (‘RTA’)) system which also stores information is accessible to police directly through the RTA system and indirectly through COPS. The RMS system is still recorded in COPS as ‘RTA’.

64. A COPS event number is created when an officer enters information into the COPS system after attending to a criminal or non-criminal matter (which is not a purely internal administrative matter). Each event is given a unique number and includes information including the events that occurred; details of witnesses; details of complainants; details of persons of interest; and action taken by police (such as charges being laid or apprehended personal violence orders being applied for). Police may access the COPS system for information relevant to their duties or investigations whether the event was submitted by themselves or another officer.

65. Police do not record in COPS “things like routine patrolling, conveying prisoners, general conversations with members of the public, delivery of exhibits, attendance at Court or routine resource requests”.

66. The evidence of Chief Inspector McCarthy (at paragraph [23]) sets out in detail what information a COPS event report will detail. The COPS event may also record a warning that is relevant to the safety of police or members of the public, such as information that a person has a firearm or has been involved in domestic disputes.

67. Chief Inspector McCarthy states that other systems exist within the COPS system, including the Case Management; Charge Management; and Custody Management systems. The Case Management system details whether an event has been finalised with no further action, or whether further investigation is required. If further investigation is required, the Case Management system records the investigative actions taken. The Charge Management system records all police activities from initiation of legal action against an offender to custody administration and maintenance of the offender’s full criminal history. The Custody Management system records all police and prisoner activities from when a person first comes into custody until the person is released or transferred to the custody of other agencies.

68. Chief Inspector McCarthy states that to discharge policing functions individual offices regularly undertake searches of the COPS system. At paragraph [29] of his affidavit, Chief Inspector McCarthy sets out examples of situations where police access the COPS system for information in the context of investigation and intelligence gathering. Police may search the COPS system using various search terms, such as an event number; names of persons; or vehicle registration numbers.

69. At paragraphs [34]-[38] of his affidavit, Chief Inspector McCarthy sets out the way the COPS system is audited. This is to prevent corruption and behaviour by officers inconsistent with their duties and responsibilities. An audit generates a report of all accesses to COPS by a particular officer over the last 12 months and an officer audited is required to justify their COPS access in respect of a random sample of accesses.

70. At paragraphs [39]-[42] and [44]-[47], of his affidavit, Chief Inspector McCarthy describes “reverse audits”. A “reverse audit” occurs where an authorised officer of the respondent searches the COPS Event Number to determine which persons, if any, have conducted a search on the COPS Event; what changes to COPS (if any) were made; and the content of those changes.

71. Chief Inspector McCarthy states that requests for “reverse audits” of the COPS system must be referred to either the Professional Standards Command, or Regional Professional Standards Managers. Local officers do not have the authority to conduct a “reverse audit” of the COPS system.

72. Chief Inspector McCarthy states that the “reverse audit” process is used internally by the respondent to monitor and reduce the risk associated with improper and unauthorised access of the COPS system. A “reverse audit” report would “not usually be created for any purpose other than routine auditing for corruption prevention, or as part of complaint investigation”.

73. Chief Inspector McCarthy states that information sought to determine who, if any, uses of the COPS system have written, edited or deleted information in the COPS system relating to specified COPS Event reports is, in substance, a “reverse audit”.

74. Chief Inspector McCarthy sets out, at paragraphs [48]-[61] of his affidavit, his opinion that disclosure of audit reports on the COPS system could have a prejudicial effect on the effective exercise of police functions; the conduct, effectiveness, or integrity of audits; and the prevention, detention or investigation of the law or prejudice the enforcement of the law. The reasons provided are summarised as follows:

1. A person could deduce whether they have been under investigation by the police from the information contained within an audit report in relation to a COPS Event. Such information could lead a person under investigation to modify their behaviour to disrupt any investigation.

2. The release of audit reports could compromise the supply of confidential information to the police by allowing for the identification of informants. Members of the public and internal police complainants should be able to trust that information provided to police would remain confidential; and members of the public and internal police complainants would refuse or be reluctant to provide information to police if they believed they could be identified as a reporter or source by way of reverse audit information being obtained under a GIPA application.

3. If a person under investigation became aware that identified police officers were involved in that investigation, the officers could be targeted either for the purpose of making threats or intimidation, or otherwise seeking to corrupt the investigation process.

4. The release of audit reports of COPS Event reports could reveal details of confidential law enforcement methodologies and methods of intelligence and evidence collection.

Statement of Mr Smith dated 14 April 2020

75. Mr Smith sets out his employment background. Since May 2017 he has been a Senior Advisory Officer at the respondent. His role and responsibilities include managing the respondent’s response GIPA applications; utilising the record keeping systems of the respondent; and ensuring compliance with the respondent’s policy and legislative requirements.

76. Mr Smith states that electronic records and information is held by the respondent primarily in the respondent in two databases. The first is the COPS system. The second is known as the “Record Management System” (‘RMS’).

77. Further, the respondent uses a database known as “View IMS” to store large electronic files such as audio-visual material; recordings of interviews; and PDF documents.

78. Mr Smith states that police also have hard copy notebooks containing written information about their activities and detectives may also use a detective duty book to record their day-to-day activities.

79. Additionally, the respondent’s employees and officers also use email. Mr Smith states that he personally does not have authorisation to search the work emails of the respondent’s officers or employees, but this can occur by way of a request to the Business and Technology Services (‘BTS’) section of the respondent.

80. At paragraphs [20]-[77] of his statement, Mr Smith sets out in detail the searches conducted in respect of the 14 Items that constitute the applicant’s GIPA application; what information was produced; and the circumstances in which searches conducted did not reveal any information held.

81. Mr Smith states (at paragraph [78]) that the searches conducted in response to the applicant’s amended access application were “exhaustive” and he could not think of any other searches that the respondent could undertake that would be likely to result in further information being located.

Statement of Matthew Smith dated 26 May 2020

82. At paragraphs [3]-[4] Mr Smith states that, in respect of COPS information searches, a search conducted using a “Central Names Index” number would not reveal any information not revealed using a search of a person’s name, as both are linked together.

83. Mr Smith states that in paragraph [44] of his first statement, he gave evidence that an email by the applicant to Constable Southcott dated 14 October 2014 was not part of the material returned from BTS in response to a request that searches of emails be conducted by BTS.

84. Mr Smith states that upon further review he discovered that the email was, in fact, returned by the BTS searches. Mr Smith stated that he had overlooked this when he was preparing the additional information provided to the applicant pursuant to the supplementary decision.

85. Mr Smith states that he had undertaken a further review of the emails that were identified because of the searches conducted by BTS and “no further emails were identified beyond those provided to the applicant and the email of 14 October 2016”.

RESPONDENT’S EVIDENCE-CONFIDENTIAL HEARING

86. [NOT FOR PUBLICATION]

87. [NOT FOR PUBLICATION]

88. [NOT FOR PUBLICATION]

89. [NOT FOR PUBLICATION]

90. [NOT FOR PUBLICATION]

91. [NOT FOR PUBLICATION]

92. [NOT FOR PUBLICATION]

93. [NOT FOR PUBLICATION]

94. [NOT FOR PUBLICATION]

STATUTORY FRAMEWORK FOR REVIEW

95. The grounds upon which the respondent has not produced information to the applicant pursuant to the GIPA request are as follows:

1. Information not held (Items 1; 2; 3; (in part); 5 (in part); 6 (in part); 7 (in part); 9; 11; 12; 13; and 14 (in part).

2. Public interest considerations against production outweigh public interest considerations in favour of production (Item 4; 6 (in part); 7 (in part); and 14 (in part).

96. The Tribunal has summarised the statutory framework for review in the context of whether public interest considerations against production outweigh public interest considerations in favour of production in Fisher v Commissioner of Police [2021] NSWCATAD 44 at [82]-[102]. Relevantly:

96. The objects of the GIPA Act are set out in s 3 (1) as being to open government information to the public, in order to maintain and advance a system of government that is open, accountable, fair and effective. That is done by:

3 Object of Act

…

(a)   authorising and encouraging the proactive public release of government information by agencies, and

(b)   giving members of the public an enforceable right to access government information, and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

…”

98. Pursuant to s 3 (2) of the GIPA Act, the Act is to be interpreted and applied to further the objects of the Act; and discretions are to be exercised, as far as possible, to facilitate and encourage promptly and at the lowest reasonable cost, access to government information.

99. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

100. Section 9(1) of the GIPA Act provides that a person who makes an application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act unless there is an overriding public interest against disclosure of the information.

101. Section 12 (1) of the GIPA Act states that there is a general public interest in favour of the disclosure of government information. Section 12 (2) of the GIPA Act states that nothing in the Act limits any other public interest considerations in favour of the disclosure of government information that may be considered for the purpose of determining whether there is an overriding public interest against the disclosure of government information and the Note to s 12 (2) provides examples of public interest considerations in favour of disclosure of information.

102. There are two situations where there will be an overriding public interest against disclosure.

103. The first is where there is a conclusive presumption under s 14 (1) of the GIPA Act against any disclosure of the government information described in Schedule 1 of the GIPA Act. No issue arises in these proceedings that the information sought by the applicant falls within Schedule 1 of the GIPA Act, nor that the information sought falls within excluded functions of agencies under s 19 and Schedule 2 of the GIPA Act.

104. The second is where there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 of the GIPA Act).,

105. The Table in s 14 of the GIPA Act sets out the only considerations against disclosure that may be considered when applying the public interest test in s 13 of the GIPA Act.

106. Relevant to this application are the following matters set out in the Table:

1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)-

…

(f)   prejudice the effective exercise by an agency of the agency’s functions,

…

(h)   prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of any agency by revealing its purpose, conduct or results (whether or not commenced and whether or not complete

2 Law enforcement and security

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)—

(a)   reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant,

(b)   prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,

…

(d)   endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person,

…

107. In respect of a decision that information is not provided because there is an overriding public interest against disclosure, Section 55 of the GIPA Act deals with the extent to which, if any, the personal factors of the applicant can be considered. Section 55 of the GIPA Act states:

55 Consideration of personal factors of application

(1)   In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section—

(a)   the applicant’s identity and relationship with any other person,

(b)   the applicant’s motives for making the access application,

(c)   any other factors particular to the applicant.

(2)   The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

(4)   An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5)   An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

(6)   An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Note—

An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

108. The manner in which applications for access are decided is set out in Division 4 of the GIPA Act.

109. Section 58 of the GIPA Act states as follows:

58 How applications are decided

(1)   An agency decides an access application for government information by—

(a)   deciding to provide access to the information, or

(b)   deciding that the information is not held by the agency, or

(c)   deciding that the information is already available to the applicant (see section 59), or

(d)   deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e)   deciding to refuse to deal with the application (see section 60), or

(f)   deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note—

These decisions are reviewable under Part 5.

(2)   More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3)   If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

110. In respect of s 58 (1) (c) of the GIPA Act, s 59 states as follows:

59 Decision that information already available to applicant

(1)   An agency can decide that information is already available to an applicant only if the information is—

(a)   made publicly available by the agency or some other agency in accordance with a legislative instrument other than this Act, whether or not availability of the information is by inspection only and whether or not availability is subject to a charge, or

(b)   available to the applicant from, or for inspection at, the agency free of charge in accordance with this Act or the agency’s policies and practices, or

(c)   contained in a document that is usually available for purchase, or

(d)   available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant’s possession, or

(e)   publicly available on a website, or

(f)   available to the applicant by way of a standing rule or order of the Legislative Council or Legislative Assembly.

(2)   An agency is not required to provide access to information that the agency has decided is already available to the applicant, but notice of the decision must indicate why the agency believes the information is already available to the applicant and, if necessary, how the information can be accessed by the applicant.

111. In respect of s 58 (1) (e) of the GIPA Act, s 60 states as follows:

60 Decision to refuse to deal with application

(1)   An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason)—

(a)   dealing with the application would require an unreasonable and substantial diversion of the agency’s resources,

(b)   the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

(b1)   the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989,

(c)   the applicant has failed to pay an advance deposit that is payable in connection with the application,

Note—

See section 70.

(d)   the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order,

(e)   the agency reasonably believes the applicant, or a person acting in concert with the applicant, is—

(i)   a party to current proceedings before a court, and

(ii)   able to apply to that court for the information.

(2)   In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided.

(3)   In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.

(3A)   In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency’s resources, the agency may, without limitation, take into account the following considerations—

(a)   the estimated volume of information involved in the request,

(b)   the agency’s size and resources,

(c)   the decision period under section 57.

(3B)   Any consideration under subsection (3A) must, on balance, outweigh—

(a)   the general public interest in favour of the disclosure of government information, and

(b)   the demonstrable importance of the information to the applicant, including whether the information—

(i)   is personal information that relates to the applicant, or

(ii)   could assist the applicant in exercising any rights under any Act or law.

(4)   Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency’s resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.

(5)   Notice of an agency’s decision to refuse to deal with an access application must state the agency’s reasons for the refusal.

(6)   An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.

112. Section 72 of the GIPA Act provides for the forms in which access is to be granted. Section 72 states:

72 Forms of access

(1)   Access to government information in response to an access application may be provided in any of the following ways—

(a)   by providing a reasonable opportunity to inspect a record containing the information,

(b)   by providing a copy of a record containing the information,

(c)   by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d)   by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2)   The agency must provide access in the way requested by the applicant unless—

(a)   to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

(b)   to do so would be detrimental to the proper preservation of the record, or

(c)   to do so would involve an infringement of copyright, or

(d)   there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Note—

Decisions about how to provide access are reviewable under Part 5.

113. The decision of the respondent to refuse access is a reviewable decision under s 80 (d) (e) and (f) of the GIPA Act. The Tribunal has jurisdiction to conduct the review by reason of ss 7, 8, and 9 of the Administrative Decisions Review Act 1997 (NSW) (‘the ADR Act’).

114. The Tribunal’s function on review is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law (s 63 (1) ADR Act). In deciding what is the correct and preferable decision, the Tribunal stands in the shoes of the decision maker and remakes the decision, as if it were the administrator (s 63 (2) of the ADR Act).

115. In conducting a review, the Tribunal is not constrained to have regard only to the material that was before the agency but may have regard to any material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179). The time at which the Tribunal is to determine the correct and preferable decision is at the time the Tribunal makes its decision (YG and GG v Minister for Community Services [2002] NSWCA 247 at [55]; Shi v Migration Agents Registration Authority [2008] HCA 31; Betzis v Commissioner of Police [2020] NSWCATAD 71 at [24]).

116. In opposing release of information under the GIPA Act, a respondent may raise, and the Tribunal may consider, grounds other than those relied upon by the original decision maker (Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier’s Department [2002] NSWADT 277; Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [33]).

117. In respect of the burden of establishing that a decision is justified, s 105 of the GIPA Act states:

105 Onus on agency to justify decisions

(1)   In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2)   If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

(3)   If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

(4)   If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.

118. In respect of a decision that information is not held by an agency, Section 53 of the GIPA Act states as follows:

53 Searches for information held by agency

(1)   The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2)   An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3)   The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4)   An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5)   An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

119. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (‘Wojciechowska’) the Appeal Panel of the Tribunal set out the applicable principles to adequacy of searches at paragraphs [42]-[44] as follows:

42. The role of the Tribunal in reviewing an “information not held” decision (ss 58(1)(b), 80(e)) is “to decide what the correct and preferable decision is having regard to the material then before it”: s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The “burden of establishing that the decision is justified lies on the agency”: s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.

43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.

221. However, as set out in the evidence of Chief Inspector McCarthy, it is necessary for police as part of their lawful duties to access the COPS system on a regular basis.

222. The mere fact that there has been an entry in the COPS system, or access to the COPS system by an officer, or changes in information does not, of itself, indicate that police have acted outside the scope of their lawful duties in accessing the COPS system; entering information in the COPS system; or altering information in the COPS system.

223. The Tribunal gives moderate weight to the public interest consideration in favour of disclosure under s 12 (2) (a) of the GIPA Act.

Section 12 (2) (b) of the GIPA Act

227. The Tribunal accepts that the “reverse audit” information sought could reasonably be expected to inform the public about the operation of agencies, and in particular, their policies and practices dealing with members of the public (s 12 (2) (b) of the GIPA Act. That consideration overlaps with the consideration in s 12 (2) (a) of the GIPA Act in the circumstances of this matter, as the way police access the COPS system; what information is entered; and what (if any) changes to information is made could reasonably be expected to inform the public about the operation of the agency in the context of enhancing the accountability of the agency.

228. As with the consideration in s 12 (2) (a) of the GIPA Act, the Tribunal gives moderate weight to the public interest consideration in s 12 (2) (b) of the GIPA Act.

Section 12 (2) (c) of the GIPA Act

229. There is nothing in the “reverse audit” log records or evidence before the Tribunal that raise any reasonable prospect that the disclosure of the information the disclosure of the information could reasonably be expected to ensure the effective oversight of the expenditure of public funds (s 12 (2) (c) of the GIPA Act. The Tribunal gives no weight to this consideration.

Section 12 (2) (d) of the GIPA Act

230. The “reverse audit” COPS log records contain some personal information of the applicant by reason of the fact COPS Events involve the applicant. However, the substance of the records sought but not produced by the applicant involve the occasions and way police officers have accessed the COPS system. The Tribunal gives minimal weight to this consideration.

Section 12 (2) (e) of the GIPA Act

231. This consideration is where such disclosure could reasonably be expected to reveal or substantiate that an agency or member of an agency has engaged in misconduct or negligent, unlawful, or improper conduct.

232. A mere assertion that the information sought could reasonably be expected to reveal misconduct or negligent, unlawful, or improper conduct is insufficient for the Tribunal to give weight to this consideration. In Commissioner for Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [136]-[137] the Appeal Panel held:

It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that ‘disclosure ... could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.’ As expressed, this consideration carries an imputation in relation to the agency’s conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal’s reasons to indicate that it had any material that ‘could reasonably be expected to reveal’ the types of improper conduct to which the above formulation refers.

233. There is nothing in the material before the Tribunal to indicate a reasonable basis for making a finding that the “reverse audit” information sought could reasonably be expected to reveal or substantiate that the agency, or member of an agency has engaged in misconduct or negligent, unlawful, or improper conduct.

234. Accordingly, the Tribunal gives no weight to the consideration in s 12 (2) (e) of the GIPA Act.

Personal Factors of the Applicant in Favour of Disclosure

235. Under s 55 of the GIPA Act, motives of the applicant can be considered. Motive must be established on reliable evidence, and not by mere assertion (Donnellan v Ku-ring-gai Council [2013] NSWADT 115 at [60]).

236. The Tribunal has taken the following relevant personal factors of the applicant into account in favour of disclosure:

1. The applicant states she is the victim of sexual assault; the assault had not been adequately investigated; and appropriate action has not been taken by police to arrest and prosecute the perpetrator of the assault.

2. The applicant states police have modified information in COPS Events reports; failed to enter information in the COPS system; entered inaccurate information; and failed to provide accurate information to the applicant in this and previous GIPA Act applications.

3. The applicant states that police falsely regard her as a ‘troublemaker’ (i.e. not creditable) and do not properly investigate or respond to her complaints.

4. A motive of the applicant in seeking the information is to ensure that police act in accordance with the law and are held accountable if they fail to do so.

237. The Tribunal does not regard any other personal factors of the applicant as being a relevant consideration.

238. The Tribunal gives minimal weight to the relevant personal factors of the applicant in favour of providing the applicant with access to the information.

239. The respondent pointed to no personal factors of the applicant as factors against providing access (s 53 (3) of the GIPA Act). Accordingly, the Tribunal does not take any personal factors of the applicant into account as a consideration against disclosure.

Public Interest Considerations Against Disclosure

240. The Tribunal has previously set out in detail the evidence of Chief Inspector McCarthy and the submissions of the respondent as to why public interest considerations against disclosure outweigh public interest considerations against disclosure. It is unnecessary to repeat such evidence and submissions.

241. The Tribunal is satisfied based on the evidence of Chief Inspector McCarthy and the documentary evidence of the respondent that release of the ‘reverse audit report’ information withheld in Items 4, 6, 7 and 14 could reasonably be expected to:

1. Cause detriment to the ability of the respondent to effectively discharge its functions by enabling persons to become aware of whether they have been, or are, under investigation (Table 1 (f) and 2 (b)).

2. Enable a person to ascertain ways in which to modify their behaviour in order to disrupt future law enforcement efforts (Table 1 (f) and 2 (b)).

3. Allow a person to deduce they had come under police scrutiny or investigation in the period between release of COPS Audit Reports, if the respondent released COPS Audit Reports in circumstances where there was no ongoing investigation, but later refused a GIPA application for the same type of information (Table 1 (f) and 2 (b)).

4. Disclose to a person who has, or is, committing unlawful activities that their conduct has not come to the attention of the respondent, and accordingly assist their efforts to evade police attention (Table 1 (f) and 2 (b)).

5. Put at risk the security, integrity and confidentiality of the auditing processes and standards of the respondent, in circumstances where COPS ‘reverse audits’ are used by the respondent internally as a method of detecting and investigating potential police corruption (Table 1 (f) and 2 (b)).

6. Reveal information which could then be used by a GIPA applicant to request COPS Event Reports, the narratives of which could reveal information that allows the applicant to deduce the identity of the police informant who provided the information (Table 2 (a)).

7. Identify police officers, who could be targeted by reason of their involvement in an investigation or access to the COPS system (Table 2 (a)).

8. Put at risk the security, integrity and confidentiality of the respondent’s auditing processes and standards, in circumstances where “reverse audits” of the COPS system is used by the respondent internally as a tool to prevent (and identify) potential corrupt conduct (Table 1 (h)).

242. The Tribunal gives substantial weight to the public interest considerations against disclosure. Such an approach is consistent with the weight given by the Tribunal to such public interest considerations against disclosure in Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 at [76]-[77] and Rivero v Commissioner for Police, NSW Police Force [2019] NSWCATAD 115 at [55]-[60].

Conclusion-Balancing Public Interest Considerations

243. The Tribunal is satisfied that public interest considerations against disclosure of the ‘reverse audit’ COPS Audit Reports in Items 4, 6, 7 and 14 outweigh the public interest considerations in favour of disclosure.

244. The decision of the respondent to withhold information from the applicant on grounds that public interest considerations against disclosure outweigh public interest considerations in favour of disclosure is the correct and preferrable decision.

ORDERS

1. The decision under review is affirmed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 June 2021