FCZ v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 16

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FCZ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 16

Hearing dates:

17 August 2023 and on the papers

Date of orders:

15 January 2024

Decision date:

15 January 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Ziegler, Senior Member

Decision:

1. The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The decision of the respondent to refuse access to the Third Party Email, the First Internal Email, the Second Internal Email, the Letter and the DCJ Reports is affirmed.

3. The decision of the respondent to refuse access to the third deletion on page 5 of COPS event report E73578134 and to the deletion on page 9 of COPS event record E69987152 of the words from “Additional Information” to the words “on the part of the author”, is set aside and in substitution thereof a decision is made that the applicant be granted access to all of those redactions, with the exception of the following words in COPS event report E73578134: 

(a) the words after “against” and before “3 years”; and

(b) the words after “regarding” and before “without evidence”.

4. The decision of the respondent to refuse access to the information that has been redacted in the copies of the CAD Messages and the balance of the COPS Reports is otherwise affirmed.

5. The implied decision of the respondent that she does not hold any further information in response to item 4 of the access application is set aside, and that part of the decision is remitted to the agency for reconsideration.

6. The implied decision of the respondent that she does not hold any further information in response to the balance of the access application is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review - government information – whether, on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure – decision that no further information is held by the agency – reasonableness of searches for the information sought.

EVIDENCE – Surveillance Devices Act 2007 – unauthorised recording – discretion to admit.

PRACTICE AND PROCEDURE - discretion to extend time – relevant considerations.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Police Regulation 2015 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Surveillance Devices Act 2007 (NSW)

Cases Cited:

Battin v University of New England [2013] NSWADT

CCB v Department of Education and Communities [2015] NSWCATAD 145

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

Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286

Forest v Suzanne [2022] NSWCATAP 292

Gabriel v Commissioner of Police [2020] NSWCATAD 51

Hurst v Wagga Wagga City Council [2011] NSWCATAD 307

Leech v Sydney Water Corporation [2010] NSWADT 298

Mesiha v Murrell [2017] NSWCATAP 1

Miskelly v Transport for NSW [2017] NSWCATAD 207

Neary v State Rail Authority [1999] NSWADT 107

NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55

Police Act 1990 (NSW)

Searle Australia Pty Ltd v PIAC [1992] FCA 241

South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Category:

Principal judgment

Parties:

FCZ (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
C Langford (Respondent)
Solicitors:
Applicant (Self-represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00070071

Publication restriction:

Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondent on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceeding conducted in private pursuant to s 49(2). That material is not to be released to either the applicant or to the public.

REASONS FOR DECISION

1. This is an application for administrative review of a decision of the Commissioner of Police concerning an application for access to information made by the applicant under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).

2. This dispute concerns records held by the respondent in connection with the applicant’s 13 year old child.

3. Orders have been made prohibiting the disclosure of the names of the applicant, the applicant’s child and the applicant’s ex-husband, and therefore in this decision I will refer to the applicant’s child as “the child”, and to her ex-husband as “the father”.

Background

4. The applicant is the mother of the child. The child lives with the father in a town in regional New South Wales. To protect the privacy of the family I will refer to that location as Town A.

5. There is a lengthy history of conflict between the applicant and the father. Since orders were made by the Family Court of Australia in 2015, the father has had full custody and parental responsibility of the child. The applicant has since attempted to regain custody and parental responsibility of the child on a number of occasions and there have been further proceedings in the Family Court. Both the NSW Police Force and the Department of Communities and Justice (the DCJ) have had multiple interactions with various members of the child’s family in relation to the welfare of the child. The DCJ has received over 70 “Helpline Reports” for the child. Many of the interactions between the applicant and the NSW Police Force have involved requests by the applicant that the police carry out welfare checks of the child.

6. In early 2023 the NSW Police Force received a letter from the child in relation to police welfare checks.

7. On 17 January 2023 the applicant made an application under the GIPA Act (the access application) for the following information:

1. The email that was sent by [the father] on or around 17 January 2023 to the … police in relation to [the child’s] welfare checks;

2. An alleged letter written by [the child] … around January 2023 to the … police in relation to her welfare checks;

3. All COPS event records in relation to the welfare checks of [the child] from 13 November 2015 to date;

4. All documentation, records, and correspondence in relation to the welfare checks of [the child], eg internal memos, records of conversations, internal correspondence to the staff of the [Town A] police posted by Sgt Brasen on or around 17 January 2023, police correspondence to the third parties (eg [the father]), etc.

8. On 7 February 2023 the respondent determined the access application by releasing certain documents in part and wholly refusing access to other documents (the 7 February Decision).

9. The documents to which access was refused in part are:

1. 21 pages of CAD messages (CAD messages); and

2. COPS event reports no E81504650, E90525928, E 511390492, E469122792, E76985169, E77903946, E77812844.

10. The documents to which access was wholly refused are:

1. an email from a third party (Third Party Email); and

2. an internal email (First Internal Email).

11. On the same date the applicant made an application to the Tribunal for administrative review of the 7 February Decision.

12. On 3 April 2023 the Tribunal noted that by consent, the third item sought in the access application was amended to “access to all COPS event records in relation to the welfare checks of [the child] from 1 January 2019 to 17 January 2023”, that the 7 February Decision was to be returned to the respondent for reconsideration, and that the respondent was to conduct all necessary searches to find:

1. The letter of [the child] alleged to have been written to police the subject of item 2 of the access application; and

2. The DCJ Reports alleged to have been sent to police as recorded in COPS event record 90525928.

13. The respondent redetermined the access application on 12 May 2023 and the reconsidered decision was provided to the applicant on the same date (the 12 May Decision). In the 12 May Decision the respondent identified the following documents in response to the amended access application:

1. COPS event report E 73578134, COPS event report E 72375143 and COPS event report E 69987152;

2. The DCJ reports recorded in COPS event report 90525928 (the DCJ Reports); and

3. The letter the subject of item 2 of the access application (the Letter).

14. In the 12 May Decision the respondent wholly refused access to the Letter, the DCJ Reports and COPS event reports E 73578134, E 72375143 and E 69987152. However, she no longer presses the decision to wholly refuse access to COPS event reports E73578134, E72375143 and E69987152. Partially redacted copies of those documents have now been provided to the applicant. The issue remaining for the Tribunal in relation to those documents is whether the decision to refuse access to the balance of those documents was the correct and preferable decision.

15. During the hearing the respondent’s representative informed the Tribunal that an additional document had been identified which was not referred to in either decision but for which access had also been refused. That document is a four-page internal email chain (Second Internal Email). It was acknowledged by the respondent that the decision to refuse access to that document should also be reviewed by the Tribunal.

16. The applicant seeks review of the 7 February Decision as amended by the 12 May Decision (together, the Decision). She seeks review of the decision to refuse access to information and of the (implied) decision that no further information is held in respect of the access information.

17. The respondent says the correct and preferable decision is:

1. To refuse access to the information that has been redacted in the copies of the following documents provided to the applicant:

1. the CAD messages; and

2. COPS event reports no E81504650, E90525928, E 511390492, E469122792, E76985169, E77903946, E77812844, E73578134, E72375143 and E 69987152 (the COPS Reports);

2. To refuse access to the information contained in the Third Party Email; the First Internal Email, the Second Internal Email, the Letter and the DCJ Reports; and

3. That no further information is held in respect of the access application.

18. The respondent submits that the Decision should be varied accordingly under s 63(3)(b) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

The withheld information

19. The information which has been redacted from the CAD messages and COPS Reports comprises information provided to police by the applicant and by third parties, and names, locations, phone numbers, birthdates and other information and opinions about individuals. The information redacted from the COPS Reports also includes deliberations of, and opinions, advice and recommendations given by, members of the NSW Police Force.

20. The DCJ Reports were provided to the NSW Police Force by the father. They comprise a Letter of Outcome to the father dated 13 July 2022, attaching a safety assessment report dated 20 June 2022 and a risk assessment report dated 29 June 2022, all relating to the child. The safety assessment and the risk assessment documented in those reports were conducted in response to a “risk of significant harm” report received by the DCJ about the child.

21. The DCJ Reports include information gathered during conversations between departmental officers, the child, the father, the principal of the child’s school and local police.

22. [NOT FOR PUBLICATION]

23. The Letter is a letter from the child to the NSW Police Force, addressed to Sergeant Brasen.

24. [NOT FOR PUBLICATION]

25. The Third Party email is an email exchange between Sergeant Brasen and a member of the public and the internal emails are email exchanges between members of the NSW Police Force.

26. [NOT FOR PUBLICATION]

Issues

27. The issues which I must decide in reviewing the Decision are:

1. Whether the adjourned hearing should be held on the papers without the need for an in-person hearing;

2. Whether the decision to refuse access to the information that has been redacted in the CAD Messages and the COPS Reports is the correct and preferable decision;

3. Whether the decision to wholly refuse access to the Third Party Email; the First Internal Email, the Second Internal Email, the Letter and the DCJ Reports is the correct and preferable decision; and

4. Whether the implied decision that no further information is held in respect of the access application is the correct and preferable decision.

28. For the reasons that follow I have decided:

1. To dispense with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013;

2. To set aside the decision of the respondent to refuse access to certain of the information in COPS event reports E73578134 and E69987152 and otherwise to affirm the decision to refuse access to the withheld information;

3. To set aside the implied decision of the respondent that she does not hold any further information in response to item 4 of the access application, and to remit that part of the decision to the respondent for reconsideration; and

4. To affirm the implied decision of the respondent that she does not hold any further information in response to the balance of the access application.

Evidence

What evidence did the parties rely on?

29. The respondent relied on the following open evidence:

1. an open tender bundle filed on 12 September 2023 containing a copy of the 7 February Decision, a copy of the 12 May Decision and copies of the information released pursuant to those decisions;

2. an affidavit of Ms Danielle Janssen (an employee of DCJ) dated 29 June 2023;

3. a statement of Sergeant Shane Brasen dated 27 June 2023 with paragraph 30 partially redacted (noting that at the hearing the respondent provided to the applicant an amended copy of Sergeant Brasen’s statement in which two previously redacted sentences in paragraph 30 were released);

4. a second statement of Sergeant Brasen dated 12 September 2023; and

5. an affidavit of Ian Steptoe (a senior advisory officer at InfoLink) dated 15 August 2023.

30. The respondent also relied on the following closed evidence:

1. tender bundles lodged on 3 July 2023, 16 August 2023 and 21 August 2023 respectively containing copies of the information to which access was refused;

2. a closed affidavit of Danielle Janssen dated 29 June 2023; and

3. an unredacted version of Sergeant Brasen’s first statement.

31. At the hearing on 17 August 2023 I made confidentiality orders in relation to the closed evidence.

32. The applicant relied on affidavits sworn by her on 7 August 2023 and 10 October 2023.

33. The respondent filed written submissions on 3 July 2023, 16 August 2023, and 12 September 2023.

34. The applicant filed written submissions on 8 August 2023 and 10 October 2023.

35. The applicant cross-examined Sergeant Brasen, Ms Janssen and Mr Steptoe at the hearing on 17 August 2023.

36. The respondent elected not to cross-examine the applicant.

New evidence sought to be tendered by the applicant

37. Approximately halfway through the hearing on 17 August 2023, the applicant sought the leave of the Tribunal to rely on additional evidence which she had not previously provided to the respondent or to the Tribunal. The new evidence consisted of voice recordings of telephone calls made by the applicant to NSW Police.

38. The request was opposed by the respondent. After hearing the parties’ respective submissions on the issue and adjourning the hearing for a short period during which I listened to the voice recordings, I refused the applicant’s request to rely on the additional evidence and indicated that I would provide my reasons at a later date. Those reasons are as follows.

39. The voice recordings consist of four telephone conversations between the applicant and staff at police stations located in the locality of Town A. The recordings occurred on 1 October 2020, 13 July 2022 and 14 July 2022. The broad subject matter of the conversations is a request by the applicant for police to carry out welfare checks in relation to the child.

40. It was common ground that before recording the conversations, the applicant did not obtain the consent of the other participants.

41. The respondent relied on s 7 of the Surveillance Devices Act 2007(NSW) (the SD Act) which makes it an offence to use a listening device to record a private conversation unless certain exceptions apply.

42. The respondent argued that the evidence was illegally obtained in contravention of the SD Act, and that this outweighed the desirability of admitting the recordings into evidence.

43. Section 7 of the SD Act relevantly provides:

7   Prohibition on installation, use and maintenance of listening devices

(1)  A person must not knowingly install, use or cause to be used or maintain a listening device—

… or

(b)  to record a private conversation to which the person is a party.

Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(3)  Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if—

…, or

(b)  a principal party to the conversation consents to the listening device being so used and the recording of the conversation—

(i)  is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii)  is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

44. “Listening device” is defined in s 4 of the SD Act to mean

any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.

45. The first issue to be determined was whether the evidence sought to be relied upon was unlawfully obtained in contravention of s 7.

46. It was not in dispute that the applicant used a listening device to record the conversations and that s 7 applies to the recordings. However, the applicant maintained that the recordings were not unlawfully obtained because they were reasonably necessary for the protection of her lawful interests.

47. In Forest v Suzanne [2022] NSWCATAP 292 (Forest) the Appeal Panel considered the relevant authorities which deal with the expression “lawful interests” at [49] – [50]. Applying the principles derived from those authorities, I was not satisfied that the recording of the telephone conversations was reasonably necessary for the protection of the applicant’s lawful interests.

48. The applicant asserted that the recordings were reasonably necessary to protect her lawful interests because they were necessary to prove the existence of the COPS event records sought in the access application in relation to those telephone conversations. However, this argument was inherently flawed. Any COPS event records relating to those conversations could not, by definition, have existed at the time the applicant made the recordings. Any COPS event record (or indeed any record) of the conversations could only have been made after the conversations had occurred.

49. The applicant also asserted that the recordings were reasonably necessary to protect her lawful interests because the respondent’s database contains false information about the applicant which was provided to the police by the father, and that this affects the way the police respond to her communications with them. These assertions were vague and not substantiated by the evidence which was available to me. The applicant’s affidavit of 7 August 2023 and its attachments contain evidence of interactions the applicant has had with police and assertions of hostile behaviour by police. It is clear that there have been disagreements between the applicant and the police about how the police have responded to her requests for welfare checks. However, the evidence does not establish that the way in which police respond to the applicant’s welfare check requests is determined or influenced by false information about the applicant provided by the father. In the circumstances, it was not apparent how the recording of calls made by the applicant to police was reasonably necessary to protect her lawful interests.

45. For these reasons I was not satisfied that the exception to s 7 of the SD applied to these circumstances.

46. It was then necessary to consider whether, despite the fact that the recordings were unlawfully obtained, the applicant should nonetheless be permitted to rely on them.

47. Evidence that has been obtained in breach of the SD Act is not inherently inadmissible. In Forest the Appeal Panel said:

39. The SD Act does not, by its terms, make inadmissible evidence obtained in contravention of these provisions. However, the question remains whether evidence illegally obtained should be admitted in proceedings in the Tribunal.

40. In a court, where the rules of evidence apply, s 138 Evidence Act 1995 (NSW) (Evidence Act) provides

138   Exclusion of improperly or illegally obtained evidence

(1)  Evidence that was obtained—

(a)  improperly or in contravention of an Australian law, or

(b)  in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…

(3)  Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a)  the probative value of the evidence, and

(b)  the importance of the evidence in the proceeding, and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d)  the gravity of the impropriety or contravention, and

(e)  whether the impropriety or contravention was deliberate or reckless, and

(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

41. In the present type of proceedings, the Tribunal “is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”: s 38(2) NCAT Act. There is a discretion which the Tribunal has as to the manner in which its enquiry is conducted. In deciding how to proceed, in our view the starting point is that the Tribunal should not generally accept evidence illegally obtained. Inter alia, to do so may be seen to encourage or condone unlawful conduct.

42. In deciding whether to receive such evidence the Tribunal should consider whether the desirability of its admission outweighs the undesirability of doing so and whether there is unfairness that may arise by its receipt or rejection in the particular circumstances of the case. In this regard the guiding principle in s.36(1) applies. The factors set out in s 138(3) of the Evidence Act may provide guidance as to relevant considerations including as to the nature of the evidence and the purpose for which it is sought to be relied upon.

53. Applying these principles, I was not satisfied that the desirability of the admission of the recordings outweighed the undesirability of admitting them. The materials did not in my view have significant probative value. They were intended to be relied upon to establish the existence of the COPS event reports sought in the access application, and the inadequacy of the respondent’s searches. The applicant submitted that the evidence of the phone calls establishes the existence of COPS event reports relating to those phone calls. However, the fact that the calls were made does little if anything to establish the existence of COPS event reports relating to the calls. The content of the recordings themselves contains nothing which sheds light on the matter, and the applicant supplied no additional evidence which might establish that the calls were, or should have been, recorded in the COPS event system. The applicant’s submission effectively presupposes, without any evidentiary basis, that the police officers to whom the applicant spoke, subsequently entered information regarding the telephone calls into the COPS events system.

54. In addition, permitting the recordings into evidence at this late stage of the proceedings would have been inconsistent with the guiding principle of the Tribunal set out in s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

55. Section 36(1) of the NCAT Act requires the Tribunal to give effect to the guiding principlewhich is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. The Tribunal is required to exercise the powers given to it in order to give effect to this principle: S36(2). The parties are under a duty to cooperate with the Tribunal to give effect to this principle “and, for that purpose, to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal”: S36(3). In doing so the “practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings”: s36(5).

56. In this connection the Tribunal had made directions requiring the applicant to file and serve written submissions and evidence on or before 7 August 2023. The applicant filed written submissions together with an affidavit of the applicant on 8 August 2023. The recordings were not included with those materials. The applicant did not seek leave to rely on the recordings until mid-way through the hearing on 17 August 2023. When pressed about the delay, the applicant was unable to provide a satisfactory explanation. The delay meant that the respondent did not have an opportunity to take the evidence into account when preparing for, or presenting its case at, the hearing, or to consider prior to the hearing whether it would be necessary to adduce additional evidence. Allowing the evidence would therefore have potentially resulted in an unfairness to the respondent, as well as the likelihood of time and resources of the Tribunal being wasted.

57. Taking into account the limited probative value of the evidence as well as the potential unfairness to the respondent and additional burden on the Tribunal if the evidence was allowed, I decided that the factors in favour of admitting the unlawfully obtained evidence were outweighed by the factors against.

58. I would add that even if the recordings had not been made in contravention of the SD Act, I would in any event have refused to allow the applicant to rely on them because they were not provided in accordance with the timetable set by the Tribunal for the exchange of evidence.

59. The Tribunal has a discretion to extend time on application by the party or of its own motion and may do so even though a relevant period of time has expired: s41 NCAT Act. The discretion must be exercised in accordance with the obligations imposed upon the Tribunal pursuant to any relevant legislation and having regard to the facts of the particular case.

60. The Appeal Panel helpfully set out the principles applicable to such matters in Mesiha v Murrell [2017] NSWCATAP 1 where, after reviewing the relevant authorities, the Tribunal said at [45] that the following principles are to be applied in determining an application for extension of time:

1.   the just resolution of proceedings remains the paramount consideration;

2.   what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters;

3.   speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings;

4.   a party should be afforded a reasonable opportunity to present its case;

5.   there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal;

6.   the nature of the case and its importance to the party seeking an extension of time needs to be considered;

7.   reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal;

8.   an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants;

9.   there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevent a party from presenting relevant evidence in support of its case.

61. In circumstances were there was no adequate explanation for the delay, the evidence in question had limited probative value, and there was a real potential for unfairness and additional cost to the respondent, as well as a waste of Tribunal resources if the evidence was allowed, I would have refused to extend time for the applicant to file and serve the recordings regardless of whether the recordings were obtained in breach of the SD Act.

Dispensing with a hearing

62. On 17 August 2023 the hearing was adjourned part-heard. The Tribunal recorded that the parties consented to the Tribunal dispensing with a hearing in relation to the balance of the proceedings and directed that if either party formed the view that a further hearing was required, they were to notify the Tribunal and the other party on or before 27 September 2023. No such notification was received by either party. I am satisfied that both parties consent to the Tribunal dispensing with a hearing of the balance of the proceedings. I am satisfied that the balance of the proceedings can be adequately determined in the absence of the parties by considering their respective written materials, and that the parties would be put to unnecessary expense if a hearing was held. Accordingly, I am making an order dispensing with a hearing of the balance of the proceedings pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW).

GIPA legislative framework

Jurisdiction

63. Pursuant to s 55 of the ADR Act, the Tribunal only has jurisdiction to review “an administratively reviewable decision”. An administratively reviewable decision is defined in s 7 of the ADR Act to be “a decision of an administrator over which the Tribunal has administrative review jurisdiction”. Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision”. Section 100 of the GIPA Act provides that applications may be made to the Tribunal for administrative review of “reviewable decisions” made by “an agency”.

64. A decision to refuse to provide access to information in response to an access application is a reviewable decision: GIPA Act s 80(d).

65. There is no dispute that the respondent is an agency for the purposes of the GIPA Act.

66. Accordingly, the Tribunal has jurisdiction to hear and determine this application.

Administrative review

67. In determining an application for review of an administratively reviewable decision, the Tribunal is to decide what is the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: ADR Act s 63(1). For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: ADR Act s 63(2).

68. The Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: ADR Act s 63(3).

The GIPA legislative scheme

69. The GIPA Act provides for the proactive release of government information as well as for the release of information in response to both formal and informal requests.

70. The objects of the GIPA Act as set out in s 3(1) are to maintain and advance a system of responsible and representative democratic government by authorising and encouraging public release of government information by agencies, giving the public an enforceable right to access government information, and providing that such access is restricted only when there is an overriding public interest against disclosure.

Issue one – the decision to REFUSE ACCESS TO information

Applicable law

GIPA Act

71. 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: s 5.

72. Section 12 of the GIPA Act states that there is a general public interest in favour of the disclosure of government information. The Note to s 12(2) (the Note) provides:

The following are examples of public interest considerations in favour of disclosure of information—

(a)  Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)  Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)  Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)  The information is personal information of the person to whom it is to be disclosed.

(e)  Disclosure of the information 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.

73. Nothing in the GIPA Act limits any other public interest considerations in favour of disclosure which may be taken into account: s 12(2).

74. However, there is an overriding public interest against disclosure of government information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure: s 13.

75. In addition, it is conclusively presumed that there is an overriding public interest against disclosure of the government information described in Schedule 1 to the GIPA Act: s 14(1).

76. The respondent has identified cl 10 of Schedule 1 as being applicable in this instance. Clause 10 relates to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Children’s Protection Act).

77. The public interest considerations listed in the Table to section 14 (the Table) are the only other considerations that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information: s 14(2).

78. The burden of establishing that the decision is justified lies on the respondent: s 105.

79. In this instance the respondent has identified clauses 1(d), 1(e), 1(f), 1(g), 2(a), 3(a), 3(b), 3(g) and 6 of the Table as relevant considerations.

80. The Table relevantly provides:

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)—

…

(d)  prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

(e)  reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency,

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

(g)  found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

…

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,

…

3   Individual rights, judicial processes and natural justice

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—

(a)  reveal an individual’s personal information,

(b)  contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,

…

(g)  in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed.

…

6   Secrecy provisions

(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.

(2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.

81. Whether disclosure of information ‘could reasonably be expected’ to have the relevant effect is an objective one; that is to be approached from the view point of a reasonable decision maker and based on real and substantial grounds and not something that is purely speculative, fanciful, imaginary or contrived: Neary v State Rail Authority [1999] NSWADT 107, at [35]; Searle Australia Pty Ltd v PIAC [1992] FCA 241, at [43]; Leech v Sydney Water Corporation [2010] NSWADT 298 at [25].

82. The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at [74]; Hurst v Wagga Wagga City Council [2011] NSWCATAD 307 at [94].

83. In applying the public interest test it is necessary for the Tribunal (as it was for the respondent) to adopt a staged approach to the issue as to whether there is an overriding public interest against the disclosure of government information: see Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 (Camilleri), at [23] to [30]. This involves identifying the public interest considerations in favour of disclosure, identifying the public interest considerations against disclosure, and then determining where the balance lies between these competing public interests.

84. In considering whether there is an overriding public interest against disclosure, the Tribunal is to be guided by s 15 which provides:

15   Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles—

(a)  Agencies must exercise their functions so as to promote the object of this Act.

(b)  Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)  The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)  The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)  In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

85. Section 55(1) provides that 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:

1. the applicant’s identity and relationship with any other person,

2. the applicant’s motives for making the access application,

3. any other factors particular to the applicant.

86. The personal factors can be taken into account as factors in favour of providing access to the applicant: s 55(2). They can also 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: s 55(3).

Public interest considerations in favour of disclosure – s 12(1)

87. Having considered the applicant’s submissions, I understand the applicant to be submitting in summary that in addition to the general public interest in favour of disclosure in s 12(1) of the GIPA Act, the following additional public interest considerations in favour of disclosure are applicable:

1. The withheld information is personal information of the applicant: item (d) of the Note. In this regard the applicant says that it is to be assumed that the withheld information contains false allegations about her, and that she has a right to know about and defend those allegations and correct information on the public record.

2. Disclosure of the withheld information 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, in particular in relation to the welfare of the child, its responses to the conduct of the father, and the way in which it has handled the applicant’s complaints and requests for welfare checks: item (e) of the Note.

3. Disclosure of the withheld information could reasonably be expected to enhance government accountability and inform the public about the operations of agencies and in particular, their policies and practices for dealing with members of the public: items (a) and (b) of the Note.

88. The applicant also says that there are personal factors of the applicant which should be taken into account. In this regard the applicant refers to the fact that she is the mother of the child who is the subject of the withheld information. She says she has a right to know the substance of her child’s complaints to police “which appears to be so serious that the … police refuse to perform mandatory welfare checks on the child”.

89. She also says that it is unfair and unjust to refuse access to documents where the applicant was the “initiator” of those documents.

Reveal or substantiate misconduct

90. With regard to the assertion that disclosure of the information 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, the applicant makes a number of allegations regarding the NSW Police and about the DCJ. She makes serious allegations about the father’s conduct and alleges that the police and DCJ have failed to adequately deal with, and protect the child from, alleged abuse, and that the police have failed to properly respond to requests for welfare checks. She asserts that there has been a “cover up” by the NSW Police Force of alleged criminal acts perpetrated by the father. She also alleges that the records of the NSW Police and DCJ include false and inaccurate information about the applicant which impacts on the way in which those agencies deal with her concerns.

91. I accept the submission of the respondent that it is not the role of the Tribunal in these proceedings to make findings about the concerns the applicant has raised about the father, the NSW Police Force or the DCJ. The Tribunal does not have sufficient information to make such findings, has not heard from all the persons allegedly involved, and is not conducting a collateral inquiry into the conduct of the father, the NSW Police Force or the DCJ.

92. Nonetheless, it would be a consideration in favour of disclosure if the withheld information could reasonably be expected to reveal or substantiate that the NSW Police Force or the DCJ, has engaged in misconduct or negligent, improper or unlawful conduct in the manner alleged by the applicant.

93. The applicant’s allegations that the agencies are engaging in a “cover up” and have failed to protect the child from abuse are speculative. In any case, the question is whether the withheld information (not other information or experiences of the applicant) could reasonably be expected to reveal or substantiate the alleged behaviour. I am not satisfied that anything in the withheld information could reasonably be expected to reveal such wrongdoing.

94. The applicant also identifies what she says are factual errors in the COPS event reports. She says these have detrimental effects on police protection of the child. In this regard the applicant refers to various COPS event reports (not the subject of the access application) which she previously obtained under subpoena, and which she says record false statements about the applicant made by the father. However, whether or not the father made inaccurate statements about the applicant to police, the recording of those statements by police in COPS event reports does not tend to establish police impropriety.

95. The applicant also refers to what she says are factually incorrect notes in COPS event report E 6997152 about herself and her behaviour towards police, about the age of another child of the father, and about the thoroughness of previous investigations into allegations of abuse against the child. However, even if notes made in a COPS event report were found to be factually incorrect (and whether or not this is the case cannot be established on the available evidence), this is not of itself improper conduct. The applicant would need to establish that there was some deliberate dishonesty, deception or negligence involved. Further, the relevant question is whether the withheld information could reasonably be expected to reveal or substantiate the alleged impropriety. I find that it does not.

96. For these reasons I find that the public interest consideration in clause (e) of the Note - that disclosure of the information 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 – is not applicable in this case.

97. Nonetheless, I am satisfied that the applicant has genuine concerns about the conduct of the father, the NSW Police and DCJ, and these matters form part of the personal factors relevant to the application: s 55(2).

Personal information about the applicant

98. I accept that the withheld information contains personal information about the applicant in that it is information or an opinion about her and this is a public interest consideration in favour of disclosure.

Enhance accountability

99. I further accept that disclosure of the various emails, the Letter, the DCJ Reports and certain of the redactions in the CAD messages and COPS Reports could reasonably be expected to enhance accountability of the NSW Police Force and the DCJ and to inform the public about the operations of the NSW Police Force and the DCJ and their policies and practices in dealing with members of the public. Those documents contain, to varying degrees, information about agency practices and procedures, including for example the way in which police handle information from informants, interact with members of the public, respond to requests for welfare checks and deal with conflict between family members.

Personal factors

100. It is appropriate for the Tribunal to take into account the personal circumstances of the applicant when deciding whether there exists an overriding public interest against disclosure. Here, the applicant is the mother of the child who is the subject of the CAD messages and the COPS Reports, the author of the Letter and the subject of the DCJ Report and of the various email communications. The applicant was also the instigator of many of the interactions with the NSW Police Force which are the subject of the withheld information. I accept that the applicant has a personal interest in knowing information about the child and about the results of reports and requests she has made about the child.

Public interest considerations against disclosure

101. As noted earlier in these reasons, the respondent relies on the public interest considerations in cls 1(d), 1(e), 1(f), 1(g), 2(a), 3(a), 3(b), 3(g) and 6 of the Table.

102. In Camilleri at [26], the Appeal Panel held that examination of whether there is a public interest consideration against disclosure needs to be done at a broader operational level of the relevant agency, rather that introducing particulars of the ‘instant situation’ that is before the Tribunal, which should nevertheless be taken into account in the next stage of the enquiry in determining where the balance lays between the competing public interest considerations.

Clause 1(e): reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency

103. To rely on clause 1(e) it must be shown first that the information could reasonably be expected to reveal a “deliberation, consultation, opinion, advice or recommendation” and secondly that disclosure of such information could reasonably be expected to prejudice an “associated deliberative process”: South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services [2019] NSWCATAD 83 at [45] – [46].

104. In Miskelly v Transport for NSW [2017] NSWCATAD 207 the Tribunal commented at [72] that:

The ‘deliberative process’ of an agency has been described as its ‘thinking processes…including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its ‘internal thinking’: Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133.

105. The respondent asserts that the COPS Reports and the various internal emails record the internal deliberations of police officers in such a way that disclosure could reasonably be expected to prejudice a deliberative process of the NSW Police Force.

106. For the following reasons I agree.

107. With regard to the COPS Reports, Sergeant Brasen’s evidence establishes that the COPS database is used by the NSW Police Force to maintain records of policing activities, including responses to reported incidents and other significant interactions with members of the public.

108. One type of record maintained within the COPS database is a COPS “event” record with a unique event created for each incident. A COPS event report will typically include a summary of any police interactions with individuals, a record of any inquiries and investigations undertaken, and any actions taken in response to an incident. An event may also include an account of internal deliberations undertaken in response to an incident, including records of consultations undertaken, observations made, assessments of information received and recommendations as to future actions. These are intended to serve as a comprehensive record of police actions undertaken in response to incidents and are also a useful resource for officers responding to later incidents involving the same individuals. Such records assist the NSW Police Force in carrying out its function in an efficient and effective manner by facilitating informed decision-making by police officers.

109. I accept Sergeant Brasen’s evidence that police officers generally do not expect that opinions and assessments they record in a COPS event report will be provided to the persons about whom they relate, and expect that such records will be kept confidential and used for policing and related purposes only.

110. These records may be sensitive, in particular if they reveal police methodologies or assessments of sensitive situations and/or individuals.

111. In light of this factual matrix I am satisfied that the disclosure of internal deliberations, opinions and advice of police officers contained in the COPS Reports could reasonably be expected to prejudice the deliberative processes of the NSW Police Force in at least the following respects:

1. Such information could be used to subvert police methodologies or to influence police responses to future reports or incidents (ie the applicant and the public would be privy to how police analysed and responded to particular reports and be able to tailor their future conduct or communications with police accordingly); and

2. When preparing event records police officers would be deterred from providing candid and fulsome records for the benefit of their colleagues. This could in turn undermine the functions of the NSW Police force.

112. Similar concerns arise with respect to the First Internal Email and the Second Internal Email, both of which contain internal deliberations and opinions of police with regard to police matters.

113. The applicant submits that disclosure of information affecting “disputants” (ie the applicant and the father) does not undermine the ability of the NSW Police Force to provide services. I do not agree. The concerns set out above apply equally (indeed possibly more strongly) where the information concerns persons in conflict in circumstances where the police are expected to have ongoing interactions with those persons and members of their family.

114. For these reasons I am satisfied that the public interest consideration against disclosure in clause 1(e) is established in relation to certain of the redacted information in the COPS Reports, as well as the First Internal Email and the Second Internal Email.

Clause 1(d) prejudice the supply to the agency of confidential information that facilitates the effective exercise of the agency’s functions;

115. It is a public interest consideration against disclosure where disclosure of information could reasonably be expected to prejudice the supply of confidential information necessary for the effective exercise of an agency's functions.

116. The respondent submitted that disclosure of the DCJ Reports, the Letter, the Third Party Email and the internal emails, as well as certain of the redacted information in the CAD Messages and COPS Reports, could reasonably be expected to prejudice the supply to it of confidential information that facilitates the effective exercise of its functions.

117. The respondent submits, in essence, that the withheld information in those documents is information provided by a member or members of the public in circumstances attracting a duty of confidence.

Confidentiality

118. For information to come within clause 1(d), it must have been obtained in confidence. In Camilleri the Appeal Panel stated at [33] that the question as to whether information is “confidential information” is to “be examined, primarily at least, by reference to the agency’s evidence as to the conditions under which it conducts the service within which the information was received”. The inquiry “should focus on the point of receipt, and the administrative standards and community understandings which surround it”.

119. Sergeant Brasen’s evidence, which I accept, is that there is a general expectation on the part of members of the public that their interactions with police and information they provide to police will be kept confidential. He says that such confidentiality concerns are heightened in circumstances such as in this case, where members of the public have provided police with sensitive information relating to the welfare of a child or a family dispute.

120. Regulation 76 of the Police Regulation 2015 (NSW) (the Police Regulation) relevantly provides:

(1)  A member of the NSW Police Force or a student of policing must treat all information which comes to his or her knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone.

(2)  In particular, a member of the NSW Police Force or a student of policing must observe the strictest secrecy in regard to NSW Police Force business, and is forbidden to communicate without proper authority in any way to any person outside the NSW Police Force any information in regard to police or other official business connected with his or her duties, or which may come to his or her knowledge in the performance of them.

(3)  Nothing in this clause operates so as to impede the due performance of operational police duties or to prevent the giving of information if it is reasonable to do so for the purpose of dealing with an emergency when life or property is at risk.

121. Paragraph 8 of the NSW Police Force Code of Conduct (the Code of Conduct) provides that employees of NSW Police Force must “only access, use and/or disclose confidential information if required by their duties and allowed by NSW Police Force policy”.

122. The Letter, the Third Party Email, the DCJ Reports and much of the information contained in the internal emails, the COPS Reports and CAD Messages were provided to the NSW Police Force by members of the public in an official capacity for the purpose of police business.

123. I am satisfied that the Letter and the DCJ Reports and certain of the withheld information in the COPS Reports, the CAD Messages and the emails are confidential information for the purposes of clause 1(d) having regard to the circumstances in which they were received, and the legislative and administrative framework that governs their storage and use. 

Prejudice the future supply of information that facilitates the effective exercise of the agency’s functions

124. In determining whether disclosure would reasonably be expected to prejudice the supply of information, the test is whether information of the kind in question facilitates the exercise of the respondent's functions and whether the disclosure of such information could reasonably be expected to prejudice the supply of such information: Flack v Commissioner of Police, New South Wales Police Force [2011] NSWADT 286 at [52].

125. In this regard it is relevant that the mission of the NSW Police is to “work with the community to reduce violence, crime and fear”: Police Act 1990 (NSW) (Police Act), s 6(1). Its functions include, relevantly, to provide “police services” which include “services by way of prevention and detection of crime” and the “protection of persons from injury”.

126. It is not a question as to whether the particular confider of the information in issue would in future refuse to supply that information. It is a question as to whether information of this nature (a) facilitates the effective exercise of the respondent's functions and (b) the disclosure of such information could reasonably be expected to prejudice the supply of such information.

124. In my view it goes without saying that the nature of the information in dispute and the circumstances in which it was obtained by the respondent is information that facilitates the effective exercise of the respondent's functions. I accept Sergeant Brasen’s evidence that in order to exercise its law enforcement functions, the NSW Police Force relies heavily on members of the public making reports and engaging with officers to provide information about potential offences and risks to persons and property.

125. I am satisfied on the basis of Sergeant Brasen’s evidence that disclosure of information of this kind could reasonably be expected to prejudice the supply of such information to the respondent. If the NSW Police Force could not give meaningful assurances as to the confidentiality of information supplied by members of the public, the public would be reluctant to report matters to the police, to participate in investigations and otherwise to engage with police. Such concerns are heightened where the information disclosed has been supplied in connection with a child’s welfare or in the context of an ongoing dispute between family members.

126. I am therefore satisfied that the Letter, the DCJ Reports, the Third Party Email and certain of the withheld information in the internal emails, the COPS Reports and the CAD Messages, includes information of the kind which facilitates the exercise of the respondent's functions, and that disclosure of information of this kind could reasonably be expected to prejudice the supply of such confidential information to the NSW Police Force.

127. For all of these reasons I am satisfied that the disclosure of that information could reasonably be expected to prejudice the supply to the respondent of confidential information that facilitates the effective exercise of its functions.

128. Accordingly, the public interest consideration against disclosure in clause 1(d) is established in relation to such information.

Clause 1(f) prejudice the effective exercise by an agency of the agency’s functions

132. It is also a public interest consideration against disclosure where disclosure could reasonably be expected to prejudice the effective exercise of an agency's functions (clause 1(f)).

133. Unlike clause 1(d), clause 1(f) of the Table does not require that the information in issue was supplied in confidence. There is, however, a requirement that disclosure of the information could reasonably be expected to prejudice the exercise of the agency’s functions. The prejudice to agency functions may result from factors additional to the future flow of information, including for example that the agency is providing services to multiple persons who are in conflict with one another. Disclosure of information about one disputant to another could undermine the agency’s ability to provide such services, which require the delicate managing of relationships and tensions.

134. The Secretary of the DCJ is responsible for administering vital aspects of the Children’s Protection Act, including investigations and assessments under Chapter 3, Part 3 and potential actions under Chapter 4.

135. Here, the NSW Police Force and the DCJ have, in the course of exercising their statutory functions, had interactions with multiple members of the same family in relation to the welfare of a child of that family. The evidence of Sergeant Brasen and Ms Janssen satisfies me that it is vital to the successful exercise of these functions that the police and the DCJ are able to continue to engage with all members of the family, including the applicant, the child and the father, and to do so in a manner which doesn’t aggravate the existing interpersonal conflict. To disclose certain of the information sought by the applicant would potentially undermine the ability of the NSW Police Force and the DCJ to respond appropriately to, and to manage, the concerns raised by the various parties. It would also be likely to prejudice the ability of the NSW Police force and the DCJ to exercise their statutory functions in relation to those parties (in particular the child) going forward, not least because any trust the child has in those agencies will be undermined.

136. For this reason, as well as for the reasons set out above in relation to 1(d) and 1(e), I am satisfied that release of the Letter, the DCJ Reports and certain of the redacted information in the COPS Reports, the CAD Messages, the Third Party Email, the First Internal Email and the Second Internal Email, could reasonably be expected to prejudice the exercise of the respondent’s functions and, in relation to the DCJ Reports, the DCJ’s functions.

137. Thus the public interest consideration against disclosure of that information in clause 1(f) is established.

Clause 1(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

138. For item 1(g) to apply, disclosure must “found an action” for breach of confidence in the sense of a cause of action for breach of a contractual duty or an equitable claim for breach of confidence or of a fiduciary duty of confidence and fidelity or otherwise result in the disclosure of information provided to an agency in confidence.

139. There is insufficient information before me to satisfy me that disclosure of any of the withheld information could reasonably be expected to found an action for breach of confidence. However, for the same reasons as expressed above in relation to 1(d) and 1(f), I am satisfied that release of the withheld information could reasonably be expected to result in the disclosure of information provided to the respondent and to the DCJ in confidence.

Clause 2(a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant

140. Clause 2(a) applies where disclosure would “reveal” the identity of an informant or prejudice the future supply of information from an informant.

141. In Miskelly v Secretary Department of Education [2019] NSWCATAD 48 the Tribunal recognised that a guarantee of anonymity is essential to people’s willingness to provide information to the police. It said at [127] :

If informants were not confident that their identities would be protected it could reasonably be expected that they would be reluctant in future to supply confidential information… Others would be likely to be deterred from reporting if identity details were disclosed.

142. In NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55 (Fahey), the Appeal Panel of the Administrative Decisions Tribunal held at [47] that an "informant" is not restricted to 'police informers' or people who might be involved in the conduct of interest and are ready to ‘inform’ on their comrades, but bears a wider connotation being a person who gives information.

143. Even where the access applicant knows the identity of the informants this does not mean that their identity has been “revealed” if it has not so far been publicly disclosed: Gabriel v Commissioner of Police [2020] NSWCATAD 51 at [38]. It is relevant in this regard that disclosure in response to an access application under the GIPA Act cannot be made subject to any conditions on the use or disclosure of information: s 15(e).

144. The information which has been withheld from the applicant in the CAD messages, the COPS Reports, the Letter, the First Internal Email, the Second Internal Email and the Third Party Email includes identifying details of persons other than the applicant who have provided information to police. Moreover, for reasons already expressed, the disclosure of information provided by those persons could reasonably be expected to prejudice the future supply of information from those informants.

145. Similarly, the DCJ Reports include information gathered during conversations between DCJ officers and members of the public. If confidentiality is not maintained in respect of such information, there is a risk that its future supply will be prejudiced and the ability of DCJ to carry out its care and protection functions will be compromised.

146. The applicant submits that the child is not an “informant” for the purposes of this public interest consideration because in the Letter she is merely “complaining” or “requesting” rather than “informing”. However, as noted above, the concept of “informant” is broad and refers simply to a person who provides information: Fahey. Thus the child is considered an informant in the context of the Letter.

147. For these reasons I am satisfied that this ground of public interest against disclosure is established in relation to the CAD messages, the COPS Reports, the Letter, the First Internal Email, the Second Internal Email, the Third Party Email and the DCJ Reports.

Clause 3(a) reveal an individual’s personal information; clause 3(g) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed; Clause 3(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW)

148. ‘Personal information’ is defined in cl 4 of Sch 4 to the GIPA Act as follows:

4   Personal information

(1)  In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2)  Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3)  Personal information does not include any of the following—

(a)  information about an individual who has been dead for more than 30 years,

(b)  information about an individual (comprising the individual’s name and non-personal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c)  information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

'Reveal' is defined in cl of Sch 4 to mean:

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

149. Section 20 of the Privacy and Personal Information Protection Act 1998 (NSW) (the Privacy Act) provides that the information protection principles prescribed in ss 8 to 19 of that Act apply to government agencies and s 21(1) of that Act provides that a public sector agency must not do anything, or engage in a practice, that contravenes an information protection principle.

150. The information protection principles in ss 8 to 19 of the Privacy Act make provision for how a public sector agency is to collect, store, use and disclose personal information. Personal information is defined in s 4 of the Privacy Act and is in similar terms to that contained cl 4 of Sch 4 of the GIPA Act. The respondent has made no submissions as to the application of clause 3(b) of the Table or why it says that disclosure of the withheld information would contravene an information protection principle under the Privacy Act and I have therefore not considered this ground any further.

151. Here the information redacted from the CAD messages and the COPS Reports includes personal information of individuals.

152. The Letter, the DCJ Report and the various emails also include personal information.

153. The applicant submits that those documents can be provided to her with personal information redacted. However, whilst redactions may frequently overcome concerns with divulging of personal information, this is not always the case. De-identifying a document will not change the fact that it reveals personal information in circumstances where the person’s identity can reasonably be ascertained from the de-identified information. For example in CCB v Department of Education and Communities [2015] NSWCATAD 145 the Tribunal found at [98] that de-identifying a document would not change the character of information as ‘personal information’ in circumstances where the access applicant knew the identity of the person involved.

154. Here, de-identifying the Letter, the Third Party Email, the DCJ Reports and the internal emails would not change the character of the information in those documents as personal information because the applicant knows the identity of the individuals concerned and disclosure of those documents could reasonably be expected to reveal those individual’s personal information.

155. Moreover, I am satisfied that as the documents contain highly personal, sensitive information about the child, disclosure of that information would not be in the best interests of the child.

156. Thus the public interest considerations in clause 3(a) are established in respect of certain of the information redacted from the CAD messages and the COPS Reports as well as in respect of the Letter, the DCJ Reports and the various emails.

157. The public interest consideration in clause 3(g) is also established in respect of the DCJ Reports, the Letter and the Third Party Email, as well as the COPS Reports to the extent they contain sensitive personal information about the child.

Clause 6 Secrecy

158. The respondent’s submissions suggest that clause 6 of the Table also applies to the withheld information.

159. Clause 6(1) of the Table to s 14 of the GIPA Act provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to constitute a contravention of a provision of any other Act.

160. Although not clearly articulated in her submissions, I understand the respondent to be saying that clause 6 applies to the DCJ Reports. The respondent suggests that disclosure of the DCJ Reports could reasonably be expected to constitute a contravention of s 105 of the Child Protection Act.

161. For reasons which will become apparent it is not necessary for me to decide whether this ground of public interest against disclosure applies to the DCJ Reports.

Where does the balance lie?

162. Below are my conclusions in relation to the various withheld documents and redacted information. In reaching these conclusions I have taken as a starting point the general presumption in favour of disclosure of government information (GIPA Act, s 5). I note the principles that apply to my determination (GIPA Act, s 15) and that conditions cannot be placed on the applicant in regard to the further disclosure of any information to which I decide she be granted access (GIPA Act, s 73).

Redacted information in the CAD Messages and COPS Reports

163. I have given significant weight to the public interest considerations against disclosure in cll 3(a) and 3(g) of the Table. The personal information in the CAD Messages and COPS Reports was gathered by police officers in the exercise of their investigative functions and, because of the circumstances in which it was gathered, it is highly personal and sensitive to each individual (particularly with regards to the child).

164. I have also given significant weight to the public interest considerations against disclosure in cll 1 (d), 1(f), 1 (g) and 2(a) of the Table. The redacted information contains information provided to the NSW Police Force in confidence by third parties. It is appropriate to afford significant weight to this consideration having regard to the circumstances in which the information was provided to police, community expectations that such information will remain confidential, and the broader impact upon police operations both generally and with respect to this particular family, if information of this nature is disclosed.

165. I have also given significant weight to the public interest consideration against disclosure in cl 1(e) of the Table. The potential impact on future police operations resulting from the disclosure of confidential police deliberations has the potential to undermine the functions of the police force which in turn risks public safety. This is particularly the case in this instance where the deliberations involve multiple members of a family in dispute, there is ongoing conflict between the persons the subject of those deliberations, and it is highly likely the police will be required to continue to interact with the family and manage that conflict in the future.

166. I have given some weight to the public interest consideration that disclosure of the information provided in confidence could enhance police accountability or inform the public about the operations of the NSW Police Force. I do not think the information significantly enhances public knowledge about police operations.

167. I have taken account of the applicant’s personal interest in knowing information about the child and about the outcome of requests she has made for welfare checks.

168. I have given some weight to the public interest consideration that the applicant be provided with personal information about her. Other than with regard to the exceptions discussed below, it is not feasible to separate the personal information of the applicant from the sensitive personal information of other individuals and this has affected the weight I have given to this consideration.

169. Weighing up these factors I find that, subject to the two exceptions discussed below, the public interest considerations against disclosure of the redacted information in the COPS Reports and CAD Messages outweigh the public interest considerations in favour of disclosure.

COPS event report E73578134 and COPS event report E69987152

170. The exceptions to the above are COPS event report E73578134 and COPS event report E69987152.

171. In COPS event report E73578134, the third deletion on page 5 of the report contains personal information and opinions about the applicant which is of a sensitive nature. Similar considerations apply to the deletion on page 9 of COPS event report E69987152 from the words “Additional Information” until the words “on the part of the author”.

172. I have given significant weight to the public interest in favour of disclosure to the applicant of this personal information. There is a strong public interest in providing members of the public with information and opinions held by government agencies, including the police, about them.

173. I have also given significant weight to the public interest consideration in clause (b) of the Note. The redacted words provide valuable information about how the NSW Police Force interacts with members of the public.

174. These considerations are to be balanced against the public interest considerations against disclosure. The respondent has not specifically addressed these redactions in her submissions. However, having considered her submissions globally, I understand the respondent to be saying that the public interest considerations in clauses 1(e) and 3(a) apply to these redactions. There is nothing before me which suggests that any other public interest considerations against disclosure apply to the information.

175. The redacted information includes internal deliberations, as well as opinions, advice and recommendations of members of the NSW Police Force. Disclosure of certain of that information could reasonably be expected to prejudice the deliberative processes of the NSW Police Force. However, for the reasons that follow, I am satisfied that the applicant is already aware of the substance of the redacted deliberations and opinions, and therefore any potential prejudice likely to result from the disclosure of that information has already materialised.

176. [NOT FOR PUBLICATION]

177. [NOT FOR PUBLICATION]

178. With regard to COPS event report E69987152, the relevant redacted information contains an opinion about the applicant’s mental health. It is apparent from the applicant’s evidence that she has previously gained access to this information via subpoena. Thus any concerns about disclosing the substance of this aspect of police deliberations to the applicant have already materialised.

170. To the extent that the redacted information in these COPS event reports contains information about intoxication, the respondent has not explained how the disclosure of this information could meaningfully prejudice the deliberative processes of the NSW Police Force.

171. For all of these reasons I have given minimal weight to the public interest consideration against disclosure in clause 1(e) of the Table.

172. With regard to the public interest considerations in clauses 3(a) and 3(g), unlike in other redacted sections of the COPS Reports, here the personal information of the applicant is not inextricably bound up with the personal information of the other persons whose identities are apparent. It is possible to separate the personal information of other individuals from the personal information about the applicant by redacting the information which could reasonably be expected to reveal personal information about other individuals.

173. Having weighed up the various public interest considerations, I find that the decision of the respondent to refuse the applicant access to the third deletion on page 5 of COPS event report E73578134 and to the deletion on page 9 of COPS event report E69987152 of the words from “Additional Information” to the words “on the part of the author” is not the correct and preferable decision. The correct and preferable decision is that the applicant be granted access to all of those redactions, with the exception of the following words in COPS event report E73578134 which could reasonably be expected to reveal personal information of third parties: 

1. the words after “against” and before “3 years”; and

2. the words after “regarding” and before “without evidence”.

The Letter and the Third Party Email

183. I have given some weight to the public interest in providing the applicant with her personal information. Both the Letter and the Third Party Email contain information or an opinion about the applicant whose identity is apparent or can reasonably be ascertained from the information or opinions. However, that information is interconnected with personal information about other persons in such a way that it would not be feasible to disclose that information to the applicant without also disclosing personal information about those third parties. This has affected the weighting I have given to this consideration.

184. I have also taken into account the applicant’s personal circumstances, including the fact that she is the mother of the child who authored the Letter and is the subject of the Third Party Email, has an interest in knowing information about the child and has concerns about the conduct of the father and about the NSW Police Force. The applicant’s personal circumstances also include her legitimate interest in being made aware of personal information about her which has been provided to the NSW Police Force by members of the public.

185. I have given minimal weight to the public interest that disclosure of the information contained in the Letter and the Third Party Email could reasonably be expected to inform the public about the operations of agencies and in particular, their policies and practices for dealing with members of the public. To the extent that these documents inform the public about the operations of the NSW Police Force, the information is de minimis. Moreover, it is of an incidental nature only and is largely from the point of view of members of the public. I am not satisfied that such information significantly enhances the public’s knowledge about the operations of the NSW Police Force.

186. I have given significant weight to the public interest considerations against disclosure in clauses 1(d), 1(f), 1(g) and 2(a) of the Table. Sergeant Brasen’s evidence satisfies me that it is of utmost importance that all members of the public have the assurance of being able to speak freely to police secure in the knowledge that the information they provide will be kept confidential. This is particularly the case in a situation such as the present where the NSW Police Force has, in the course of exercising its statutory functions, had many interactions with multiple members of the same family in relation to the welfare of a child of that family. It is critical to the successful exercise of those functions that the NSW Police Force continues to engage with all members of the family. To disclose the information contained in the Letter and the Third Party Email seriously risks undermining the ability of the NSW Police Force to work productively with the family, and to manage the concerns of the various parties. It also risks prejudicing the ability of the NSW Police Force to continue to exercise its statutory functions in respect of the family going forward, not least because any trust the family members may have in the NSW Police Force will likely have been eroded.

187. I have also given significant weight to clauses 3(a) and 3(g). The Letter and the Third Party Email contain personal information regarding a child and is of a highly sensitive nature.

188. The applicant submits that with respect to the Letter, minimal weight should be given to these considerations because Sergeant Brasen has already in effect disclosed the contents of the Letter to the applicant in a telephone call between the applicant and Sergeant Brasen on or about 17 January 2023. I have considered the account of that telephone call contained in the applicant’s affidavit of 7 August 2023. Sergeant Brasen conceded under cross-examination that the applicant’s account of the conversation was largely correct and I accept that the account of the conversation contained in the applicant’s affidavit is substantially accurate. However, I do not agree that Sergeant Brasen revealed the entirety of the Letter to the applicant. At most, he provided a high-level overview of the nature of the Letter. He did not provide to the applicant any specific details regarding the information contained in the Letter. Accordingly, I am not satisfied that less weight should be afforded to the public interest considerations against disclosure as a result of that conversation.

189. The respondent says I should also take account of the applicant’s personal factors as factors against providing access in connection with clauses 2(a), 3(a) and 3(g) of the Table. In this regard the respondent relies primarily on paragraphs 21-31 of Ms Janssen’s confidential affidavit dated 29 June 2023. The difficulty with this submission is that as the applicant has not been made privy to Ms Janssen’s confidential evidence, the allegations raised by Ms Janssen about the applicant are effectively unchallenged. The applicant has not had an opportunity to respond to or test Ms Janssen’s assertions. Accordingly, I have given limited weight to Ms Janssen’s evidence in this regard and have not taken it into account when determining where the balance lies.

190. Having weighed up the various public interest considerations I find that on balance, the public interests against disclosure outweigh the considerations in favour of disclosure. Accordingly, I find that the decision of the respondent to refuse the applicant access to the Letter and the Third Party Email is the correct and preferable decision.

DCJ Reports

191. I have given some weight to the public interest in providing the applicant with her personal information contained in the DCJ Reports. Like in the Letter and Third Party Email, that information is inseparable from personal information about other persons and this has affected the weighting given to this consideration.

192. I have taken account of the applicant’s personal factors including her interest in receiving information about her child’s welfare and her concerns regarding the conduct and processes of the DCJ.

193. I have given minimal weight to the public interest that disclosure of the DCJ Reports may reasonably be expected to enhance DCJ’s accountability and to inform the public about DCJ’s operations. Whilst the DCJ Reports reveal information about DCJ’s systems and operations and their practices in dealing with the public, there is nothing in the reports which convinces me that disclosure would significantly contribute to the public’s understanding of the DCJ’s operations.

194. The considerations in favour of disclosure are to be weighed against the public interest considerations against disclosure. The DCJ Reports contain personal information about a child of a highly sensitive nature. For the reasons explained above, it would not be in the child’s best interests for that information to be disclosed. I have given significant weight to clauses 3(a) and 3(g).

195. I have also given significant weight to clauses 1(d), 1(f), 1(g) and 2(a) for the same reasons as stated above in relation to the Letter. The DCJ Reports were provided to the NSW Police Force by the father in confidence. It is vital that members of the public are able to engage with the NSW Police Force without fear that information provided confidentially may be disclosed. This is particularly the case in a situation such as the present where police have for many years been dealing with a complex family dispute which requires delicate managing of relationships and interpersonal tensions.

196. For the same reasons as are articulated above in relation to the Letter and Third Party Email, I have not taken into account the applicant’s personal factors as factors against providing access in connection with clauses 2(a), 3(a) and 3(g) of the Table.

197. Having weighed up the various public interest considerations I find that on balance, the public interests against disclosure outweigh the considerations in favour of disclosure. Accordingly, I find that the decision of the respondent to refuse the applicant access to the DCJ Reports is the correct and preferable decision and it is not necessary to consider clause 6 of the Table, nor whether there is a conclusive presumption against disclosure.

Internal Emails

198. Both the First Internal Email and the Second Internal Email contain personal information about the applicant some of which is of a sensitive nature and I have given some weight to the public interest in providing the applicant with her personal information. Like the documents previously discussed, it would not be feasible to disclose that information to the applicant without also disclosing personal information about third parties.

199. I have given minimal weight to the public interest that disclosure of the internal emails might reasonably be expected to enhance the accountability of the NSW Police Force and to inform the public about its operations. In my view disclosure of the emails would not contribute significantly to the public’s understanding of police operations.

200. [NOT FOR PUBLICATION]

201. I have given some weight to the public interest in providing the applicant with information about her child. Although the emails contain information about the child, that information is peripheral to the substance of the emails. [NOT FOR PUBLICATION] I have also taken account of the applicant’s concerns about the conduct of the NSW Police Force which is a personal factor of the applicant.

202. The emails refer to information obtained in confidence from members of the public. They also contain sensitive personal information, including personal information of a child. For the same reasons as are outlined above in relation to the Third Party Email and the Letter I have given significant weight to the public interest considerations against disclosure in clauses 1(d), 1(f), 1(g) and 2(a), as well as clauses 3(a) and 3(g) of the Table.

203. Given the sensitive nature of the information contained in the internal emails, the fact that there is likely to be ongoing interaction between the NSW Police Force and the applicant’s family, and the potential detrimental impact on future police operations resulting from the disclosure of internal deliberations between police officers, I have also given significant weight to the public interest consideration against disclosure in clause 1(e) of the Table.

204. Weighing up these factors, I find that on balance, the public interests against disclosure outweigh the considerations in favour of disclosure. Accordingly, I find that the decision of the respondent to refuse the applicant access to the First Internal Email and the Second Internal Email is the correct and preferable decision.

ISSUE TWO – ADEQUACY OF SEARCHES

205. The applicant’s grievance is in relation to the adequacy of the respondent’s searches for documents in categories 3 and 4 of the access application (as varied by consent on 3 April 2023). She does not dispute the adequacy of searches for categories 1 and 2 which each relate to singular documents.

206. Category 3 is “All COPS event records in relation to the welfare checks of [the child] from 1 January 2019 to 17 January 2023”.

207. Category 4 is “All documentation, records and correspondence in relation to the welfare checks of [the child], eg. Internal memos, records of conversations, internal correspondence to the staff of [Town A] police posted by Sgt Brasen on or around 17 January 2023, police correspondence to the third parties (eg [the father]), etc.”

Applicable law

208. Section 53 of the GIPA Act sets out the obligations of an agency in respect of the searches it must undertake in response to an access application. It provides:

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.

The evidence

209. In relation to the issue of searches the applicant relevantly says in her affidavit of 7 August 2023:

1. She has in her possession certain documents falling under the scope of the application which were not identified or provided by the respondent in response to the access application. These documents, which are annexed to the affidavit of 7 August 2023 are:

1. A letter from the applicant to Maroubra Police Station dated 14 January 2019;

2. A letter dated 14 January 2019 from the applicant to Miranda Police Station;

3. A letter from Detective Superintendent Cramsie (Eastern Beaches Police Area Command) to the applicant dated 4 April 2019;

4. A text message from Maroubra Police to the father dated 12 January 2020 (which was accidentally sent to the applicant); and

5. An email exchange between the applicant and Sergeant Brasen from April 2021.

2. COPS event records for 1 October 2020 and 13 July 2022 also exist. They are not in the applicant’s possession. However, with regard to the former event record, the applicant says she has inferred such a document exists because on 1 October 2020 the applicant requested a welfare check upon discovering that the child had been “secretly moved” by the father from her home in Sydney to a regional location in breach of a family court order. On that date she spoke to a senior constable at the local police station in which the senior constable reported to the applicant that he had attended the child’s address and spoken to the child. On this basis the applicant infers that a COPS event record dated 1 October 2020 exists.

210. The respondent relied on an affidavit of Ian Steptoe who is a senior advisory officer at InfoLink, within the NSW Police Force. InfoLink is responsible for processing and determining applications for access to information made to the respondent under the GIPA Act.

211. Mr Steptoe was cross-examined at length by the applicant.

212. The applicant’s access application was allocated to Mr Steptoe after the file was remitted by the Tribunal on 3 April 2023. Mr Steptoe determined the application on behalf of the respondent and issued the 12 May Decision.

213. Mr Steptoe’s testimony provides details of the searches which were undertaken in response to the access application, as well as information regarding the respondent’s record management system. Relevantly Mr Steptoe says:

1. With regard to the COPS event records, an “Event” is an incident that has been recorded by police in the NSWPF Computerised Operational Policing System (COPS) database. Each “Event” has a unique reference number.

2. There is no ability to conduct a free text search on COPS. However, a particular event can be located in several ways, the easiest being to search for it using the reference number if known. Alternatively a “person search” using the personal details of those involved in the incident such as name, address, date of birth and driver’s licence number. This will enable the location of any Events in which the person has been “tagged” as a victim, witness or person of interest.

3. The original decision maker who made the 7 February Decision undertook a “person search” on the COPS database using personal identifying information and identified COPS Events within the relevant time frame.

4. Mr Steptoe also performed a “person search” of the COPS database. The search terms used were the personal identifying details of the applicant and the other persons named in the access application, and the amended date range. Events identified as a result of these searches were then reviewed to identify all those involving welfare checks of the child. The COPS Reports identified in addition to those identified in the 7 February Decision were listed in the schedule to the 12 May Decision.

5. After being made aware of the applicant’s concerns raised in these proceedings, Mr Steptoe conducted another search of the COPS database. No further event records within the scope of the amended application were identified.

6. With regard to the applicant’s assertion that COPS Reports from around 1 October 2020 and 13 July 2022 should have been identified, Mr Steptoe’s searches did not identify any responsive events for those dates other than a record from 29 September 2020 which did not relate to welfare checks for the child.

7. Correspondence received by the NSW Police Force that relates to a welfare check on a child “would be” forwarded to the relevant Command or Unit PAC for response or other action if it was not directly addressed to the Command or Unit.

8. Correspondence is held in the NSW Police Force electronic records management system (RMS). Once saved it is given a unique reference number which can be used as a search term if known. Otherwise it can be searched using a keyword such as a name. Correspondence that relates to a particular incident might also be saved as a “Case File” item on a system called “ViewIMS”.

9. SMS messages sent or received on a NSW Police Force mobile device that relates to a child welfare check that need to be retained “would be saved on RMS and/or ViewIMS”.

10. Mr Steptoe is aware that after the applicant raised concerns about the adequacy of the searches undertaken, the respondent’s legal advisers contacted the Town A police station to request further searches to identify whether there was any further “correspondence, or internal correspondence” which had been received by them, in relation to the welfare checks of the child, on or around 17 January 2023, that had not been previously provided.

1. Mr Steptoe “understands” that a police officer conducted an email and RMS search to identify any further correspondence from on, or around 17 January 2023.

2. After conducting those searches the police officer identified further internal email correspondence which had not previously been provided with the Decision.

3. Mr Steptoe has searched ViewIMS (without applying any time limit) for any correspondence that is linked to the responsive COPS Reports but located no correspondence relating to welfare checks.

4. RMS allows for “title word” and “any word” searches. Mr Steptoe conducted title word and any word searches using the applicant’s name, the child’s name and the father’s name (the key words). These searches identified documents with a keyword in the title and electronic folders with a key word in the title. Mr Steptoe opened the electronic folders with a key word in the title to check the individual documents contained within them. He also checked the individual documents located through these searches in order to locate any “home” folders he hadn’t already located. No correspondence relating to welfare checks was located through this process. No time limit was applied to these searches.

5. In light of the above Mr Steptoe is satisfied that there are no other documents responsive to category 4 in relation to welfare checks relating to police at the relevant police station.

214. No evidence has been provided by the person who carried out searches or determined the 7 February Decision.

Submissions

Respondent’s submissions

215. The respondent submits in summary:

1. In relation to category 3, Mr Steptoe’s search method was a reasonable strategy to adopt.

2. With regard to the two allegedly missing reports (from 1 October 2020 and 13 July 2022), Mr Steptoe conducted further searches of the COPS database but did not locate any COPS event records for either of those dates.

3. The correct and preferable decision is that there is no further information in relation to category 3.

4. In relation to category 4, the documents attached to the applicant’s affidavit of 7 August 2023 fall outside the scope of the access application. The letters to Miranda Police and Maroubra Police relate to welfare checks conducted at an earlier point in time (January 2019), the letter from Detective Superintendent Cramsie does not refer to any welfare check or request for same at any point in time. The SMS message is about sighting the child in January 2020 and the email exchange from April 2021 is from a different time period (April 2021).

5. Notwithstanding the above, additional searches were carried out for the purpose of these proceedings but no further documents responsive to the access application were identified.

6. Overall:

1. The searches performed are reasonable;

2. Notwithstanding the matters raised by the applicant, there is no reason to expect that additional information responsive to the access application exists and is held by the Commissioner; and

3. The correct and preferable decision is that there is no further information responsive to item 4.

7. The Tribunal can have some confidence in these conclusions given that the local records at Town A police station and centrally-stored records accessible via COPS/View IMS and RMS have been searched on more than one occasion.

Applicant’s submissions

216. The applicant submits, in summary:

1. The respondent’s searches were inadequate because they failed to identify the documents identified in her 7 August affidavit which are known to exist and should have been identified in response to item 4 of the access application.

2. It is inferred that a COPS event record dated 1 October 2020 exists because on that date the applicant requested a welfare check. The respondent’s searches were inadequate because they should have identified a COPS event record from that date.

3. The respondent’s failure to identify known documents suggests the respondent is acting in bad faith.

4. The documents sought under item 4 were not limited to documents relating to welfare checks conducted by police at the Town A police station, nor were they limited to welfare checks conducted on or around 17 January 2023. The access application was thus misconstrued.

Consideration

217. The principles in relation to reasonable searches under the GIPA Act were canvassed in detail in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska). Relevantly, the Appeal Panel said:

[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 [sic] 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.

[44]   In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

(1) identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

(2)   determine whether the agency has proved any relevant factual issues on the balance of probabilities;

(3)   consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; 

(4)   applying those findings, decide what the correct or preferable decision is;

(5) affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

218. I apply those principles to the circumstances of this matter.

219. Firstly, the applicant’s allegation that the respondent has acted with bad faith in responding to her access request is without basis. The fact that certain documents were not provided to the applicant in response to the access application is not in itself evidence of bad faith. The respondent’s explanation for this includes that she did not consider those documents to be within the scope of the access application, or that the searches conducted did not locate those documents. Even if the respondent is incorrect in relation to the scope of the access application, or if the searches conducted were inadequate (and I will deal with these questions below), without more, there is nothing in the evidence which would satisfy me that she acted without good faith.

220. With regard to item 3, the applicant’s concern is that a COPS event report should have been located for 1 October 2020 and for 12 July 2022.

221. I accept the applicant’s evidence regarding conversations between herself and a senior constable at the Town A police station on 1 October 2020. However, the fact that this conversation took place does not in itself establish that a COPS Event record relating to the events discussed in that exchange was subsequently created. There is no evidence to establish that this occurred.

222. The applicant has provided no evidence to substantiate her assertion that a COPS event record responsive to the application dated 12 July 2022 should have been identified.

223. In any case, I accept Mr Steptoe’s evidence regarding the searches of the COPS database and the results of those searches.  I found his evidence to be clear and consistent, and the lengthy cross-examination conducted by the applicant did not reveal any anomalies or inaccuracies in Mr Steptoe’s evidence. In this regard I accept the search strategy Mr Steptoe adopted was a reasonable one, and indeed was likely the only available search strategy in circumstances where the COPS database lacks the functionality of a free text search. In the absence of that functionality Mr Steptoe was restricted to using the names and other personal details of the persons involved and therefore the searches he conducted using those search terms were reasonable.

224. I also accept Mr Steptoe’s evidence that no COPS records responsive to the access application were identified other than those referred to in the Decision, and in particular that no records for 1 October 2020 or 12 July 2022 were identified.

225. No evidence has emerged since Mr Steptoe’s searches were conducted which might tend to provide that the requested records are in fact held by the respondent.

226. For all of these reasons I am satisfied that that the searches that the respondent undertook to locate the documents in response to item 3 of the access application were reasonable for the purposes of meeting its obligations under section 53 of the GIPA Act, and that the searches yielded no documents other than those identified in the Decision. In my view it is unlikely that further searches would be successful in locating information which falls within the scope of item 3.

227. The situation with regard to item 4 is somewhat different as it appears the respondent has misconstrued the scope of the access application and that this has affected the adequacy of her searches. The access application asks for:

All documentation, records and correspondence in relation to the welfare checks of [the child], eg, internal memos, records of conversations, internal correspondence to the staff of [Town A] police posted by Sgt Brasen on or around 17 January 2023, police correspondence to the third parties (eg [the father]), etc.

228. I agree with the respondent that the SMS message and the letter from Superintendent Cramsie fall outside the scope of the access application as they do not relate to welfare checks of the child. The same cannot be said of the other documents referred to by the applicant. The letters to Miranda Police and Maroubra Police, as well as the email exchange of April 2021 between the applicant and Sergeant Brasen all relate to welfare checks of the child.

229. In this regard I do not agree with the respondent that item 4 of the access application is restricted to documents relating to welfare checks carried out on or around 17 January 2023. Item 4 clearly seeks “All documentation” in relation to “the welfare checks of the child”. Item 4 does not specify a particular time frame. However, reading item 4 in the context of the access application as a whole, I understand the reference to “the welfare checks” in item 4 is a reference to the welfare checks referred to in item 3 – that is, the welfare checks conducted between 1 January 2019 and 17 January 2023.

230. Although there is a reference in item 4 to internal correspondence “posted by Sgt Brasen on or around 17 January 2023” it is clear from a reading of item 4 as a whole, that this reference does not limit the entire category of documents in item 4 to a particular date or location. The reference to the 17 January 2023 correspondence is merely one item in a list of several examples of the type of document sought by the applicant.

231. The respondent says that in any case, once the applicant’s concerns were made known, further searches were carried out for the purpose of the proceedings.

232. Mr Steptoe’s evidence establishes that no time limit was applied to the further searches of ViewIMS and RMS. However, this is not the case for the further searches carried out by the staff at Town A police station. It is apparent from Mr Steptoe’s evidence that the further searches carried out by Town A police related only to correspondence from on or around 17 January 2023. Had the searches not been constrained by that date, it is reasonable to expect that the email exchange from April 2021 would have been located.

233. Moreover, the applicant’s evidence (namely the letters to Maroubra and Miranda police dated 14 January 2019) suggests that there are additional documents held by the respondent which fall within the scope of item 4. The respondent’s evidence does not adequately explain why those documents were not identified by the searches it conducted.

234. It follows that I am not persuaded that the agency has demonstrated that it carried out a reasonable search for the documents identified in item 4 of the access application. As the agency bears the burden of onus of demonstrating that it did undertake such a search, and has not done so, I am not satisfied it has conducted reasonable searches.

235. Accordingly I will set aside the implied decision of the respondent that she does not hold any further information in response to item 4 of the access application, and remit that part of the decision to the agency for reconsideration.

Orders

236. For these reasons I am making the following orders;

1. The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The decision of the respondent to refuse access to the Third Party Email, the First Internal Email, the Second Internal Email, the Letter and the DCJ Reports is affirmed.

3. The decision of the respondent to refuse access to the third deletion on page 5 of COPS event report E73578134 and to the deletion on page 9 of COPS event report E69987152 of the words from “Additional Information” to the words “on the part of the author” is set aside and in substitution thereof a decision is made that the applicant be granted access to all of those redactions, with the exception of the following words in COPS event report E73578134: 

1. the words after “against” and before “3 years”; and

2. the words after “regarding” and before “without evidence”.

4. The decision of the respondent to refuse access to the information that has been redacted in the copies of the CAD Messages and the balance of the COPS Reports is otherwise affirmed.

5. The implied decision of the respondent that she does not hold any further information in response to item 4 of the access application is set aside, and that part of the decision is remitted to the agency for reconsideration.

6. The implied decision of the respondent that she does not hold any further information in response to the balance of the access application is affirmed.

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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: 15 January 2024