Fisher v Commissioner of Police

[2021] NSWCATAD 44

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fisher v Commissioner of Police [2021] NSWCATAD 44

Hearing dates:

20 April 2020; Timetable for written submissions to 1 May 2020

Date of orders:

2 March 2021

Decision date:

02 March 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

G.Sarginson, Senior Member

Decision:

The decision of the respondent dated 14 February 2020 under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW---Access to government information---Access application---Refusal to deal with application---Whether information available to applicant under subpoena or other order of a court---Exercise of discretion to refuse to deal with application

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

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Surveillance Devices Act 2007 (NSW)

Cases Cited:

Betzis v Commissioner of Police [2020] NSWCATAD 71

Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7

Commissioner of Police (NSW) v Field [2016] NSWCATAP 59

Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179)

Hanna v NSW Ministry of Health [2019] NSWCATAD 21

Minister for Immigration and Citizenship v Li [2013] HCA 18

Office of Financial Services v APV [2014] NSWCATAP 8

Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier’s Department [2002] NSWADT 277

Rae v Commissioner for Police [2020] NSWCATAD 189

Shi v Migration Agents Registration Authority [2008] HCA 31

Wojciechowska v Commissioner for Police [2020] NSWCATAP 173

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

John Fisher (Applicant)
Commissioner of Police (Respondent)

Also Heard (s 104(1) Government Information (Public Access) Act 2009 (NSW):
Information Commissioner

Representation:

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)
Information Commissioner: C. Emery, Solicitor

File Number(s):

2019/00348601

Publication restriction:

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

REASONS FOR DECISION

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

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

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

BACKGROUND

4. The Tribunal has also made orders under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (NSW) dealing with the non-publication of such documents; submissions; evidence; recording; and transcript of the private hearing.

5. The applicant resides in a rural area.

6. On 15 September 2019 the applicant was involved in an incident involving two neighbours on or near a rural road in proximity to the neighbouring properties. There have been disputes between the applicant and the two neighbours over various issues over a number of years.

7. Police were called and attended. The applicant operated two mobile telephones during the incident, one telephone making a video recording and the other telephone making an audio recording. Police arrested and charged the neighbours with offences involving common assault and malicious damage to one of the phones. Police took the applicant’s mobile phones into custody as evidence in the criminal proceedings.

8. The applicant and his neighbours attended Goulburn Police Station on 15 September 2019. The applicant gave a witness statement to police. The applicant’s neighbours were formally charged with criminal offences.

9. The applicant subsequently made an application to the Local Court for an Apprehended Personal Violence Order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) against his neighbours.

10. On 1 October 2019 the applicant made an access application under the GIPA Act to the respondent. 20 numbered paragraphs identified the information sought.

11. In written submissions dated 1 April 2020, the applicant summarised the categories of information sought in the access application dated 1 October 2019 as follows:

“There are four broad subject areas for my GIPAA request:

(a)   Information arising 15 Sept. 2019;

(b)   Information held on personal property in the possession of the NSWPF;

(c)   Information accorded to satisfying subpoenas;

(d)   Information that relate and validate a place for which the Commissioner exercised authority for.”

12. On 3 October 2019, the respondent wrote to the applicant stating that due to the scope of the material sought, the respondent was considering whether to refuse to deal with the application under s 60 (1) (a) of the GIPA Act on the basis that it would require a substantial and unreasonable diversion of resources, and requesting that the applicant refine the request under s 60 (4) of the GIPA Act.

13. On 11 October 2019 the applicant emailed the respondent declining to refine the application.

The Decision of 30 October 2019

14. On 30 October 2019 the respondent made a decision under s 60 (1) (a) of the GIPA Act to refuse to deal with the whole of the access application on the basis that dealing with the application would involve an unreasonable and substantial diversion of the agency’s resources.

15. However, as discussed below, the respondent subsequently made a second decision to release some information to the applicant, and withhold other information.

Procedural History in the Tribunal

16. On 1 November 2019, the applicant filed proceedings in NCAT seeking a review of the decision of the respondent dated 30 October 2019. The review proceedings were filed within the limitation period under s 101 (1) of the GIPA Act.

17. The matter was listed for an interlocutory case conference at the Tribunal on 3 December 2019. The Tribunal noted certain further inquiries would be made by the respondent, and the applicant was seeking a copy of the COPS report in respect of the incident on 15 September 2019 urgently for the purpose of obtaining an Apprehended Personal Violence Order against his neighbours. The Tribunal also noted that the applicant agreed as to what measures would constitute a reasonable search for items 14-20 of the application.

18. The matter was listed for a second interlocutory case conference at the Tribunal on 14 January 2020. Directions were made regarding the filing and serving of evidence and submissions. The Tribunal Member also noted a number of matters.

19. On 14 January 2020 the applicant sent the respondent an email containing a “reworded application” that refined the categories of information sought, and did not press certain categories.

20. On 17 January 2020 the respondent informed the applicant by email that the respondent could make a decision on the basis of the narrowed application set out in the email of 14 January 2020.

21. On 28 January 2020 the proceeding were listed for directions in the Tribunal. Order 1 of the Tribunal stated:

Commissioner of Police is to make a new decision in accordance with the reduced scope of the access application on or before 14 February 2020.

22. On 14 February 2020 the respondent made a decision in respect of the narrowed application.

The Decision of 14 February 2020

23. Detail of the information for which access was sought is provided below. However, the decision of the respondent can be relevantly summarised as follows:

Paragraphs 1, 2 and 9

24. The respondent refused to deal with the requests under s 60 (1) (d) and (e) of the GIPA Act on the basis that the applicant was a plaintiff in Court proceedings at Goulburn Local Court (the Apprehended Personal Violence proceedings) and had issued a Subpoena to Produce Documents that included the same information sought in the GIPA Act request. A copy of the Subpoena to Produce Documents was attached to the notice of decision.

Paragraph 3

25. The respondent stated it had decided to provide access to the information requested under s 58 (1) (d) of the GIPA Act except where there is an overriding public interest against disclosure of the information.

26. The respondent produced a redacted version of the Computer Aided Dispatch (‘CAD’) log (which included details of radio broadcasts) in respect of three (3) 000 emergency calls in respect of the incident on 15 September 2019.

Paragraph 4

27. The respondent stated it had decided to refuse to provide access to the information requested pursuant to s 58 (1) (d) of the GIPA Act because there is an overriding public interest against disclosure.

Paragraph 5

28. The information was provided in full pursuant to s 58 (1) (a) of the GIPA Act.

Paragraph 6.1

29. The respondent confirmed certain information about the applicant at Goulburn Police Station contained in CCTV footage.

30. The respondent produced a screen shot produced from CCTV footage recorded in the custody area at Goulburn Police Station on 15 September 2019 which the respondent stated was responsive to the request at paragraph 6.1.

Paragraphs 6.2 and 6.3

31. The respondent stated it had refused to provide access to the information requested in paragraphs 6.2. and 6.3 pursuant to s 58 (1) (d) of the GIPA Act because there was an overriding public interest against disclosure.

Paragraph 8

32. The respondent stated that it had decided to produce the information sought in this paragraph in full pursuant to s 58 (1) (a) of the GIPA Act.

33. A copy of an “EFMIS printout” showing exhibits held by police was produced.

Paragraph 10

34. The respondent decided pursuant to s 58 (1) (b) of the GIPA Act that the information was not held by the agency.

Paragraphs 12 and 13

35. The respondent decided to provide access to this information in full pursuant to s 58 (1) (a) of the GIPA Act.

Paragraphs 14-20

36. The respondent decided pursuant to s 58 (1) (c) of the GIPA Act that the information requested was already available to the applicant because to the extent that any responsive information was held, the applicant had been provided with access to the information and the respondent had no reason to believe the information was no longer in the applicant’s possession (s 51 (1) (b) of the GIPA Act).

37. The reasons of the respondent stated that a Senior Constable of the respondent had confirmed “all information relating to” a charge had been “included in the brief of evidence served in the criminal proceedings” and there was “no other information” held by the Senior Constable relating to the public road referred to in the GIPA application and the charge.

Public Interest Considerations

38. The decision of the respondent set out the balancing of public interest considerations in respect of the decision to refuse access to information. The reasons of the respondent on this issue comprised of approximately 2 pages.

Documents and Written Submissions-Public Hearing

Applicant’s Documents and Submissions

39. The applicant filed and served an affidavit dated 14 April 2020. That affidavit did not contain in the body of the affidavit evidence of factual events, but attached a submission dated 1 April 2020. The submission of 1 April 2020 contained a mixture of factual matters and legal submissions.

40. The applicant filed and served a submission dated 21 April 2020. That document also contained a mixture of submissions and reference to factual matters. The document also contained a series of emails between the applicant and the respondent.

Respondent’s Documents and Submissions

41. The respondent filed and served affidavits of Mr Steptoe (Senior Advisory Officer of the respondent) dated 19 March 2020 and Inspector Hinton dated 19 March 2020.

42. The respondent filed and served written submissions dated 19 March 2020 and submissions in reply dated 16 April 2020.

43. Further, at the hearing, the respondent stated that it was able to provide the applicant with a list of material relating to an identified Police Event, being responsive to category 1 of the application (as narrowed by agreement of the parties on 17 January 2020).

44. The reference to “category 1” is a reference to the request for:

“1.   A list of material linked to, or making reference, to, or initial Event E71526030”.

45. The list of documents was read at the hearing and the respondent submitted a written list would be provided in the near future.

46. At the conclusion of the hearing, the Tribunal made directions regarding the filing and serving of further submissions regarding the further list of documents. Pursuant to such directions, the respondent filed and served further submission dated 24 April 2020. The submissions stated that the respondent had emailed the applicant the list of documents identified at the hearing on 21 April 2020.

47. The applicant did not file and serve any further submissions in reply to the respondent’s submissions dated 24 April 2020 but on occasions sent emails to the Tribunal about events that post-date the hearing and were not considered by the Tribunal as part of this decision.

Submissions of Information Commissioner

48. The Information Commissioner filed and served written submissions dated 10 April 2020. The Information Commissioner also participated in the public hearing.

Documents Private Hearing

49. The respondent produced an unredacted CAD log responsive to paragraph 3 of the application. The respondent also produced a still photograph from CCTV footage taken at Goulburn Police Station on 15 September 2019 responsive to paragraphs 6.2 and 6.3 of the application. The respondent also produced a copy of the audio recording.

50. At the private hearing, the respondent made submissions in respect of such documents.

Conduct of the Public Hearing

51. The applicant sought to cross examine Inspector Hinton and did so. Mr Steptoe was not available for cross examination.

52. Prior to the hearing, the applicant had given written notice to the respondent that he required both Inspector Hinton and Mr Steptoe for cross examination.

53. At the hearing, the applicant did not press objection to Mr Steptoe’s affidavit being admitted into evidence in circumstances where he was not available for questioning at the hearing. The applicant stated that he did not seek to question Mr Steptoe, but submitted that the Tribunal should give no weight to Mr Steptoe’s evidence.

54. No adjournment of the hearing was sought by either party.

55. The Tribunal made clear to the parties that any evidence admitted was subject to weight and relevance, and that it remained open to the applicant to make submissions as to what weight, if any the Tribunal should place on the evidence of Mr Steptoe and Inspector Hinton.

56. The applicant also sought leave to give oral evidence, and this was granted.

Evidence of Inspector Hinton

57. The evidence of Inspector Hinton, as set out in his affidavit dated 19 March 2020 was that in his experience, information provided to police by witnesses and informants in police investigations is provided on the understanding that it remains confidential unless used in Court or for other law enforcement purposes.

58. Inspector Hinton stated that the confidentiality of the supply of information to the police is important, because persons providing information may have, reasonably or unreasonably, fear of reprisal; or embarrassment (by having information relevant to whether an offence may have been committed); or believe they may face investigation if they provide information.

59. According to Inspector Hinton, the confidentiality of the supply of information and identity of the informant or witness is important, because if potential informants or witnesses believed there was a real risk that information was not confidential, this would impact the willingness of the community to co-operate with the police, the ability of the police to gather information, undertake investigative and community protection functions, and undermine confidence in the police generally.

60. Inspector Hinton stated that he had “limited knowledge of the matter before the Tribunal” but was aware the applicant had made a GIPA application on 1 October 2019 and that the respondent had made a decision in relation to the application after the original application was amended by consent.

61. In respect of paragraphs 3 and 4 of the decision dated 14 February 2020, Inspector Hinton stated that he had reviewed the ‘CAD’ (computer aided dispatch) incident log including ‘VKG’ (radio system used by police to respond to incidents) recordings responsive to the application. Inspector Hinton stated that there were no separate VKG log responsive to the application, as radio broadcasts are logged on the CAD system.

62. Inspector Hinton stated that he understood that CAD incident log had been partially released to the applicant, with certain details redacted. Inspector Hinton had reviewed the versions without redactions applied.

63. Inspector Hinton stated that in respect of paragraph 3 of the decision dated 14 February 2020, there are 3 CAD incident log which are responsive. According to Inspector Hinton, the logs record the identity and addresses of various persons who contacted police in relation to the incident on 15 September 2019.

64. Inspector Hinton stated that in respect of paragraph 4 of the decision dated 14 February 2020, there was a recording of radio broadcasts between police officers responding to the incident on 15 September 2019, as logged in the CAD incident log. Inspector Hinton stated that the recording included references to informants and their addresses for the purpose of police responding to and investigating the incident.

65. Inspector Hinton asserted that, based on his experience as an investigating officer, he was concerned that releasing the information sought in paragraphs 3 and 4 would undermine community trust in the police, and it would not be consistent with promoting open communication between the community and the police to release, without restriction, information about informants to an incident to a person whose interests are directly affected by their reports.

66. In cross examination, Inspector Hinton was relevantly questioned about the two phones of the applicant, and whether copies of audio or visual recording could be tendered as evidence without the phones being kept as potential exhibits. Inspector Hinton agreed that it was possible this could occur, but that the original phone would still be required to authenticate the recording. Inspector Hinton was also questioned about a type of software that could be used to download information from mobile phones. Inspector Hinton replied that he was not personally aware of the capability of such software.

Evidence of Mr Steptoe

67. In his affidavit of 19 March 2020, Mr Steptoe stated that his duties relevantly included managing the respondent’s response to GIPA applications; utilising compliance with statutory requirements.

67. Mr Steptoe stated he was aware of the applicant’s GIPA application, and that it had been amended by consent.

68. Mr Steptoe’s affidavit was divided into three sub-headings responsive to the categories of documents sought and the decision of the respondent dated 14 February 2020. The sub-headings were “information not held by agency (paragraph 10); “information already available (paragraphs 14-20) and “information subject to subpoena” (paragraphs 1, 2, and 9).

69. In respect of paragraph 10 (Information not held by agency) Mr Steptoe stated that the applicant requested:

“A copy of all information, including but not limited to photographs, and images, of a mobile telephone, sliver coloured back plate, being a Angoras telephone, stolen from (the applicant) per COPS Event E71526030, now being in the possession of or under the control of (the respondent)”.

71. Mr Steptoe stated that he understood this to be an application for any photographs or images of a specified mobile telephone held by police. He then set out the process by which police take photographs for evidentiary purposes and how that information is stored. Mr Steptoe stated he had conducted a search and that the relevant COPS Event Report had no case file items linked to it.

72. Mr Steptoe stated that he had further conducted a search of the Exhibits Forensic Information Miscellaneous Property System (‘EFIMS’) and a copy of an EFIMS report for the mobile telephone was released in the decision of 14 February 2020. Mr Steptoe stated that a further search found a single JPEG image of the mobile telephone, which “does not print with the rest of the report” and a printed copy of that image was attached to his affidavit.

73. In respect of paragraphs 14-20 (information already available) Mr Steptoe stated that it had been noted by the Tribunal in its orders of 3 December 2019 that a reasonable search for items 14-20 would consist of contacting Senior Constable Handsaker; or Goulburn Police Station; or the Hume Area Command to enquire whether that information was held.

74. Mr Steptoe stated that he had spoken to Senior Constable Handsaker on 5 February 2020 and was told that all information relating to charge number H 68745607 had been provide to the applicant “in the brief of evidence served on him” and there was “no other information held by him in relation to the charge or (address)”. Mr Steptoe stated that Senior Constable Handsaker also told him that “he held no record of the date and time the four photos referred to in item 20 were taken”.

75. In respect of the information subject to Subpoena (paragraphs 1, 2, and 9) of the amended application, Mr Steptoe stated that on 9 January 2019 a Subpoena to Produce Documents was issued by the applicant to Police in proceedings in Goulburn Local Court, and a copy of that Subpoena was attached to Mr Steptoe’s affidavit.

76. Mr Steptoe stated that an amended Subpoena to Produce Documents was served on Police on or about 23 January 2020 that sought the following items:

“1.   Vodafone Smart Mini 7 telephone with red leather cover;

…

6.   All documents, including photographs, relating to Event numbers (sic) 71526030;

7.   Bodycam and CCTV footage from all Police officers in relation to the incident occurring on 15 September 2019 near, and at, …(location)”.

77. Mr Steptoe stated that on 19 March 2019 he made inquiries with Goulburn Police Station and was informed that:

1. A copy of the audio recording on the Vodafone Smart Mini 7 telephone was provided to the applicant on 15 January 2020; and

2. All other material responsive to Items 1, 6 and 7 of the Subpoena had been produced to Goulburn Local Court.

Evidence of the Applicant

78. As discussed previously, the applicant was granted leave to give oral evidence in chief. There was a significant overlap between the applicant’s submissions and the applicant’s evidence of factual matters, notwithstanding the Tribunal explaining to the applicant the difference between evidence (factual matters) and submissions (legal argument as to why the Tribunal should make the orders sought).

79. The applicant gave evidence about the circumstances of the events on 15 September 2019 including what occurred at Goulburn Police Station. The applicant gave evidence regarding the two telephones that had been retained by police as evidence, and the information and materials that had been provided to him by Police arising from the events of 15 September 2019.

WHAT IS THE DECISION UNDER REVIEW?

80. The Tribunal is satisfied that the decision under review is the decision of 14 February 2020. That decision supersedes the decision of 30 October 2019 and arose in circumstances where the parties agreed before the Tribunal for the respondent to make a decision based upon narrowed categories of documents sought.

81. In submissions, the applicant asserted that the decision under review was original decision of 30 October 2019. However, the Tribunal does not accept that submission, because the applicant agreed before the Tribunal to narrow the categories of documents sought, and the respondent made a decision based upon the narrowed categories.

STATUTORY FRAMEWORK FOR REVIEW

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

3 Object of Act

…

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

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

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

…”

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

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

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

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

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

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

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

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

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

1 Responsible and effective government

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

…

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

…

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

…

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

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

55   Consideration of personal factors of application

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

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

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

(c)   any other factors particular to the applicant.

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

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

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

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

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

Note—

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

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

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

58   How applications are decided

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

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

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

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

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

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

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

Note—

These decisions are reviewable under Part 5.

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

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

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

59   Decision that information already available to applicant

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

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

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

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

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

(e)   publicly available on a website, or

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

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

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

60   Decision to refuse to deal with application

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

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

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

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

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

Note—

See section 70.

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

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

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

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

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

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

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

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

(b)   the agency’s size and resources,

(c)   the decision period under section 57.

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

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

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

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

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

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

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

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

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

72   Forms of access

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

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

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

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

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

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

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

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

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

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

Note—

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

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

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

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

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

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

105   Onus on agency to justify decisions

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

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

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

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

CONSIDERATION

Paragraphs 1, 2, and 9-Refusal to Deal With the Application On The Basis That The Information Is Or Has Been The Subject of a Subpoena For The Production Of Documents And Is Available To the Applicant As A Result Of Being Produced In Compliance With That Subpoena.

103. Paragraphs 1, 2 and 9 seek the following information:

1.   A list of all material linked to, or making reference to, or initial to Event E71526030

2.   Audio visual material, as captured by ‘body-cams’ from all attending NSW Police Officers attending the matter on, and near (address) 15 September 2019.

9.   A copy of all data on the Vodaphone Min 7 mobile telephone, being in the possession of or under the control of NSWPF, including but not limited to the audio recording dated 15 September 2019. The telephone was made available to NSWPF for the purpose of obtaining a copy of that audio file recorded 15 September 2019 to facilitate information per COPS Event E71526030.

104. As discussed previously, Mr Steptoe’s affidavit contains evidence of the Subpoena to Produce Documents that was issued by the applicant pursuant to proceedings in the Local Court and the measures taken by the respondent to produce documents pursuant to that Subpoena.

105. The refusal to deal with an application for access under s 60 (1) (d) and/or (e) of the GIPA Act involves the exercise of discretion. Such discretion must be exercised reasonably and within the bounds of the subject matter, scope and purpose of the legislation on which it is conferred (Minister for Immigration and Citizenship v Li [2013] HCA 18 at [23] and [26]). Accordingly, the exercise of discretion must be in accordance with the object and purpose of the GIPA Act set out in ss 3 (1) and (2) of the GIPA Act.

106. The Tribunal must also, when reviewing a decision to refuse to deal with an application for access under s 60 (1) of the GIPA Act that a decision to refuse to deal with an application for any of the reasons set out in 60, take into account that a refusal to deal with an application represents a significant curtailment of the right of access to information to members of the public (Hanna v NSW Ministry of Health [2019] NSWCATAD 21).

107. When reviewing a decision to invoke s 60 (1) of the GIPA Act, the Tribunal must weigh the systemic considerations that might justify the agency in in not continuing to process the application (Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7 at [43]; [49]-[50]; and [60]). Such considerations may include:

1. The restrictions that apply to a party use of subpoenaed material;

2. Respect for court orders,

3. Factors of a personal kind related to the particular application and the applicant’s personal circumstances;

4. The sensible and efficient deployment of agency resources.

108. In weighing the systemic considerations that justify the exercise of discretion in favour of not dealing with an application, each case depends upon its own facts (Betzis v Commissioner for Police [2020] NSWCATAD 71 at [20]).

109. In respect of s 60 (1) (d) and (e) of the GIPA Act, the process of determination can be relevantly summarised as follows:

1. Sections 60 (1) (d) and (e) are threshold tests for the exercise of the discretion for refusal to deal.

2. The first step is to determine whether there is a basis for a reasonable belief that the requirements of s 60 (1) (d) and/or (e) have been met sufficiently for the agency to discharge its onus under s 105 of the GIPA Act.

3. Where a reason under s 60 (1) (d) and/or (e) have been established, the Tribunal then has a discretion to decide to deal with an application, weighing the relevant systemic considerations on a case by case basis.

110. The evidence contained in the affidavit of Mr Steptoe satisfies the Tribunal that the applicant is a party to Court proceedings; the applicant has issued a Subpoena (which was amended) to which involves the same information as sought in paragraphs 1, 2, and 9, and that such information has been produced to the Court in compliance with that Subpoena. The Tribunal is satisfied on the evidence of Mr Steptoe that the information has been made available to the applicant.

111. The Tribunal is satisfied that there is a basis for a reasonable belief that the requirements of s 60 (1) (d) of the GIPA Act have been met. Accordingly, it is unnecessary to consider the requirements of s 60 (1) (e) of the GIPA Act in the context of whether the applicant is “able to apply” to the Court for information.

112. The Tribunal has taken into account when making that factual finding that Mr Steptoe was not available for questioning at the hearing when giving weight to the evidence. However, the issue of weight must also take into account that the position of the applicant was (according to an email of the applicant to the Tribunal on 2 April 2020 attaching his submissions of 1 April 2020) Mr Steptoe was “remote” to the information. The Tribunal infers that, irrespective of any answers to questions given by Mr Steptoe in cross examination had he been present at the hearing, the applicant would have submitted that little or no weight should be given to Mr Steptoe’s evidence in any event.

113. The Tribunal has taken into account the submission of the applicant that the Tribunal should give little or no weight to the evidence of Mr Steptoe but does not accept that submission in circumstances where there was no evidence by the applicant that he (though his Solicitor) had not caused a Subpoena to be issued or that the Subpoena had not been complied with.

114. The oral evidence of the applicant at the hearing, and the reference to factual events in the applicant’s submissions, refers to the applicant issuing the Subpoena because he was frustrated or disappointed with the respondent’s failure to produce the information sought under the initial GIPA application.

115. However, by issuing the Subpoena (and amending or narrowing the Subpoena) and the respondent producing documents in compliance with that Subpoena, the issue shifts to the respondent’s decision to refuse to deal with the application because the information is, or has been, the subject of a Subpoena to produce documents which is available to the applicant as a result of having been produced in compliance with that Subpoena.

116. In respect of the documents produced, the substance of the applicant’s evidence is not that such documents and information were available to him, but that he is not satisfied that all information has been produced and the respondent had adequately followed its procedures. In the alternative, it was submitted that the respondent’s procedures for complying with GIPA applications were flawed.

117. The applicant also complains that when he attended Goulburn Police Station in January 2020 for the purpose of downloading information from his mobile telephone that was being held by police, the download was unsuccessful.

118. However, the threshold issue is whether, as a question of fact, the information “is available” to the applicant pursuant to the Subpoena and the Tribunal is satisfied that the contents of the mobile telephone are relevantly “available” whether or not the applicant has been able to successfully download the information.

119. Further, the Tribunal is satisfied on the basis of the evidence of Mr Steptoe that a copy of the audio recording of the Vodafone Smart Mini 7 was provided to the applicant on 15 January 2020.

120. The next issue to consider is the exercise of discretion.

121. In weighing up the systemic considerations, the Tribunal gives weight to the following matters:

1. The respondent has produced the information sought to the Court.

2. The production of documents to a Court pursuant to a Subpoena involves the use of the respondent’s resources, and it would be an unnecessary duplication and diversion of resources for the agency to further produce the information pursuant to a GIPA request.

3. The information sought in the GIPA request involves both criminal proceedings (by police against the applicant’s neighbours) and civil proceedings (the applicant seeking Apprehended Domestic Personal Violence Orders). In such circumstances, the production of documents to the Court pursuant to the Subpoena issued by the applicant allows any application to be made to the Court restrict access on grounds such as statutory restrictions as to the use and disclosure of information under the Surveillance Devices Act 2007 (NSW).

4. The applicant did not identify any use he wished to make of the information, other than in connection with his civil legal proceedings. The applicant has also not clearly indicated how the information is not already available in respect of the respondent’s compliance with the Subpoena.

122. The respondent has provided evidence that it has complied with the Subpoena. A Subpoena to produce documents is an order of the Court that documents must be produced to the Court. A person who is properly served with a Subpoena to Produce Documents cannot simply not comply because it chooses to do so. The person subject to the Subpoena must make an application to the court to have the Subpoena set aside in whole or part. If the applicant asserts there has been non-compliance with the Subpoena, such as documents have not been produced that are responsive the Subpoena, the applicant may seek to take measures to enforce the Subpoena.

123. Having weighed up the systemic considerations, including the objects of the GIPA Act, the Tribunal is satisfied that the correct and preferable decision in respect of paragraphs 1, 2 and 9 of the application is that the respondent refuse to deal with the application on the basis that the paragraphs seek access to information that is, or has been, the subject of a court Subpoena and is available to the applicant as a result of having been produced in compliance with that Subpoena under s 60 (1) (d) of the ‘GIPA Act, and additionally the respondent believes on reasonable grounds the applicant is a party to current proceedings before a court and able to apply to the court for that information (if any information has not been provided pursuant to the Subpoena issued by the applicant) under s 60 (1) (e) of the GIPA Act.

124. Additionally, the Tribunal notes that the applicant’s submissions refer to a copy of the audio recording on the Vodafone Mini 7 having been provided to his Solicitor. The Tribunal is satisfied that production of information to the Solicitor falls within s 60 (1) (d) and (e) of the GIPA Act, because that information has been produced in response to the issue of a Subpoena, and the production to the Solicitor for the applicant rather than the applicant personally does not alter the correct and preferable decision in respect of Sections 60 (1) (d) and (e) of the GIPA Act.

125. However, during the course of the Tribunal proceedings, the respondent created a further document in response to paragraph 1, and provided it to the applicant.

126. The respondent provided to the applicant a document containing 11 items associated with the Event (i.e. the incident on 15 September 2019) on 21 April 2020.

127. The document states the “list of material related to Event E71526030” is as follows:

1.   COPS event reports;

2.   Charge sheets;

3.   Facts sheets;

4.   Transcript of ERISP with charged persons and (applicant);

5.   Witness statement from family members of charged person;

6.   Police body worn video from 15/9/20;

7.   (Applicant’s) two phones, one smashed and destroyed, the other intact;

8.   Criminal history of charged persons;

9.   Photographs of charged persons;

10.   Statement of Senior Constable (name identified);

11.   Statement of Sergeant (name identified).

128. The document produced was in addition to the indexes to the “Contents of Brief of Evidence” that had been served by the respondent in the criminal proceedings involving the applicant’s neighbours and which the applicant was a witness.

129. Certain names have been redacted in the document, but there was nothing in the applicant’s evidence or submissions to indicate that he sought access to an unredacted version of the document.

130. In respect of the index and the list of items, the respondent submits that the substance of the documentation has been provided pursuant to the Subpoena to produce documents, but that in respect of paragraph 1 seeking a “list of all material” the response of the respondent is sufficient under s 75 of the GIPA Act.

131. Section 75 of the GIPA Act states as follows:

75   Providing access by creating new record

(1)   An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information.

(2)   An agency’s obligation to provide access to government information in response to an access application does not require the agency to do any of the following—

(a)   make a new record of information held by the agency,

(b)   update or verify information held by the agency,

(c)   create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

132. The respondent submits that the list provided, as supported by the indexes is an appropriate and adequate response to the request for a “list” in paragraph 1 because:

1. The identification of the list requested is broad and vague.

2. The list of documents sought in category 1 is not information which already exists in the records of the respondent, and the respondent would not be capable of creating a list that could approximate, even loosely, the scope of paragraph 1 as proposed by the applicant.

3. Due to the breadth and vagueness of paragraph 1, (with the use of the phrases “linked to” and “initial to”) the creation of a list of the type requested by the applicant would require “exhaustive case by case analysis” to form an opinion whether events are sufficiently factually connected. Accordingly, the respondent.

4. The list of 11 items provided on 21 April 2020 is an appropriate and comprehensive response to paragraph 1, constituting the two indexes to the Brief of Evidence in the criminal proceedings arising from the incident on 15 September 2019.

133. The applicant submits (in his written submission of 21 April 2020) that the respondent is a “large and successful quasi-military organisation” with the ability to conduct searches and compile a list. The applicant submits that the respondent has “knowingly omitted” at least 9 matters from the list provided, including email correspondence between officers of the respondent regarding the applicant’s telephone.

134. The Tribunal has previously found that in respect of paragraph 1 the correct and preferable decision is that the respondent refuse to deal with the application by reason of s 60 (1) (d) and (e) of the GIPA Act.

135. The provision of the list of documents on 21 April 2020 by the respondent is nothing more than the respondent reducing to a single list two separate indexes to the Brief of Evidence in criminal proceedings, which have been provided to the applicant pursuant to the Subpoena issued by the applicant in the Local Court.

136. Accordingly, the respondent has provided access by producing a new record of information pursuant to s 75 (1) of the GIPA Act, and the correct and preferable decision is that this further list has been provided in accordance with s 75 (1) of the GIPA Act. The provision of the further list does not affect the correct and preferable decision in regard to the refusal to deal with the application under s 60 (1) (d) or (e) of the GIPA Act.

Paragraph 10-Decision that Material Not Held

137. Paragraph 10 of the amended application seeks the following information:

10.   A copy of all information, including but not limited to photographs, and images, of a mobile telephone, silver coloured back plate, being a Angoras telephone stolen from (applicant) 15 September 2019 per COPS Event E71526030; now being in the possession of or under the control of NSWPF”.

138. The evidence contained in Mr Steptoe’s affidavit contains details of the searches made by the respondent. Initially a copy of an exhibit record was produced to the applicant, but after further searches a “thumbnail” image depicting the phone was identified and produced.

139. The respondent submits that the searches conducted were reasonable, and the respondent has reasonably determined that it does not hold any further information relating to an Angoras mobile telephone with a silver coloured back plate responsive to paragraph 10.

140. The applicant, in his submissions, interprets paragraph 10 as a request for photographs contained on the telephone (i.e. data of the telephone) rather than photographs of the telephone itself.

141. The Tribunal is satisfied that the proper construction of paragraph 10 is “all information of, including…photographs and images…” “of” the telephone, not information “on” or “within” the telephone.

142. The Appeal Panel of the Tribunal discussed the principles applicable to s 53 of the GIPA Act in Wojciechowska v Commissioner for Police [2020] NSWCATAP 173 at [44] summarised the principles as follows:

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.

143. In light of the construction of paragraph 10 and the information contained in the affidavit of Mr Steptoe, there are not reasonable grounds for believing there may be further records relevant to the application. The submissions of the applicant do not disclose what further records may be available that are responsive to the scope of paragraph 10.

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: 02 March 2021