Gal v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 294

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gal v Commissioner of Police, NSW Police Force [2023] NSWCATAD 294

Hearing dates:

On the papers

Date of orders:

07 November 2023

Decision date:

07 November 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member

Decision:

1. A hearing of the applicant’s administrative review application is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The decision of the respondent, made on 16 March 2022, is affirmed.

Catchwords:

ADMINISTRATIVE LAW – access to government information – information not held

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

State Records Act 1998 (NSW)

Cases Cited:

Commissioner of Police v Danis [2017] NSWCATAP 7

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Caterina Gal (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/00090868

Publication restriction:

Nil

Reasons for decision

Introduction

1. On 30 March 2022, the applicant, Catrina Gal, lodged the following applications with the Tribunal:

1. An Administrative Review Application form, seeking administrative review of the internal review decision of a delegate of the respondent, the Commissioner of Police, NSW Police Force, made on 16 March 2022, that it did not hold the information for which the applicant had sought access in her access application received by the respondent on 4 February 2022: Government Information (Public Access) Act 2009 (NSW) (GIPA Act) ss 41 and 58(1)(b). In her access application, dated 28 January 2022, the applicant sought access to a full copy of her 19 June 1997 police interview complete with facial images;

2. An Application for Stay or Interim Order seeking a ‘Stay Rejection of Application No REV -2022-0152400’ (interim order application). The application reference number cited by the applicant in this application is the same reference number the respondent had cited as its refence number on the 16 March 2022 decision, the subject of the applicant’s administrative review application; and

3. An Application for a Summons to be issued to the respondent to produce ‘Case File 97001352 – Facial Images 97001353’ and the medical records of her grandfather who died in June 1997 (summons application).

2. The applicant’s application came before me at a case conference on 2 May 2022. Both the applicant and the solicitor for the respondent appeared, by telephone, at the case conference.

3. During the case conference I:

1. noted that the applicant’s interim order application was misconceived in that it was seeking a stay of the decision of the respondent that was the subject of review of her administrative review application; and

2. made orders for the filing and serving of evidence and submissions by the applicant and the respondent in regard to the applicant’s administrative review application. Included in the order was a direction that the applicant and the respondent indicate in their respective written submissions whether they considered that the matter was appropriate to be determined, in the absence of a hearing, on the papers under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

3. refused the applicant’s application for a summons to be issued because the summons sought production of:

1. the documents (information) the subject of the decision of the respondent that was the subject of her administrative review application; and

2. documents which were unrelated to the applicant’s access application the subject of the decision of the respondent for which she sought administrative review.

4. Following an extension of time within which the applicant and the respondent were to comply with the orders I made:

1. on 9 May 2022, the respondent provided the Tribunal and the applicant with a bundle of documents which included a copy of the applicant’s access application, the respondent’s original decision, the applicant’s internal review application and the respondent’s internal review decision;

2. on 16 May 2022, the applicant provided the Tribunal and the respondent with a copy of her submissions and evidence. In her submissions, the applicant noted the abovementioned applications she had lodged with the Tribunal on 30 March 2022. On the following five hand written pages the applicant noted that she had made her first access application to the respondent in May 2018 and that further access applications were made in November 2020 and June 2021. The applicant went on to explain the circumstances giving rise to her earlier access applications. A copy of each access application and the decisions made by the respondent in regard to the May 2018 access application were attached to the applicant’s submissions. Also attached to the applicant’s submissions were reports to and of the NSW Coroner and the Victorian Coroner, relating to the 1987 accidental death of her sister and the correspondence the applicant received concerning the probate of her grandfather’s estate;

3. on 4 August 2022, the respondent provided the Tribunal with its written submissions and evidence, which included

1. a statement, dated 8 July 2022, by Ian Steptoe (Mr Steptoe), Senior Advisory Officer of the respondent’s InfoLink Unit; and

2. a statement, dated 6 July 2022, by Detective Senior Constable Stephen Wilson (Dt.SC Wilson).

5. In its written submission, the respondent submitted that the applicant’s administrative review application was suitable for determination on the papers.

6. In her written submissions the applicant did not indicate whether the matter was suitable for determination on the papers. Nevertheless, I am satisfied that the issues for determination in the applicant’s administrative review application can be adequately determined in the absence of the parties by considering the evidence and submissions provided by the parties and I make an order accordingly: NCAT Act s 50(2).

The applicant’s access application and the decision the subject of review

7. As I noted in the notes to the orders I made on 2 May 2022, in this administrative review proceeding, the only access application relevant to the decision the subject of review is the access application of the applicant, dated 28 January 2022 and received by the respondent on 4 February 2022, in which the applicant sought access to the following information:

Enclosed is a copy of interview between detective Sergeant RJ Betts and Caterina Gal on Thursday 19 June 1997. The interview included Detective Sergeant RJ Betts taking myself and Garry W Hansel to CIP Headquarters in Surry Hills to provide facial images of perps – home invasion. Please provide me with a full copy of interview complete with facial images. Only the interview between Caterina Gal, the detectives who provided record of interviews facial images.

8. The respondent determined this access application of the applicant on 17 February 2022. In its notice of decision, the respondent said that it had decided that the information for which the applicant sought access was not held by the respondent: GIPA Act s 58(1)(b). The applicant, as she was entitled to do, sought internal review of the respondent’s decision: GIPA Act s 82. In her internal review application, the applicant said: ‘I would like a copy of the entire interview, investigation and outcome. Including the original facial Imaging of 2 Robbers.’

9. On 16 March 2022, Ian Steptoe, as delegate of the respondent, notified the applicant of his internal review decision. In that decision, Ian Steptoe said he had decided:

1. Under s 58(1)(b) of the GIPA Act that the information for which the applicant sought access was not held by the respondent; and

2. Under s 58(1)(a) of the GIPA Act to provide the applicant with access to a COPS Event Report dated 20 March 1997 and the COPS ‘Enquire Case Summary’. The Event Report is a report, made by Sergeant Betts, of an incident reported by the applicant that day. The report notes that the incident occurred the previous day when two men attended the home of the applicant and stole a quantity of cash from the applicant. The COPS ‘Enquire Case Summary’ has an end date of 24 April 1998.

10. As I have already noted, the applicant’s earlier access applications to the respondent in 2018, 2020 and 2021 are of no relevance to this administrative review application of the applicant. While the applicant’s narrative surrounding these earlier access applications do include a reference to the alleged 1997 ‘home invasion’, the earlier access applications do not seek access to the information sought in the applicant’s 28 January 2022 access application which was received by the respondent on 4 February 2022. Furthermore, the 16 March 2022 decision of the respondent, as required under the GIPA Act, only responds to the access application that was received on 4 February 2022, which is the access application dated 28 January 2022.

11. Hence, the earlier 2018, 2020 and 2021 access applications and the decisions of the respondent in response to those earlier applications are of no relevance to the 16 March 2022 internal review decision of the respondent the subject of this administrative review application. As a consequence, the majority of the material provided by the applicant is also not relevant to this administrative review application. At the same time, I appreciate that this material is of importance to the applicant. It is just not material relevant to the decision of the respondent that the Tribunal has jurisdiction to review.

Jurisdiction and role of the Tribunal

12. The Tribunal’s jurisdiction to hear and determine the applicant’s administrative review application seeking review of the respondent’s 16 March 2022 internal review decision arises under ss 80(e) and 100 of the GIPA Act; s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

13. The Tribunal’s task in its administrative review jurisdiction is to decide what the correct and preferable decision is, having regard to the material before it and the applicable written and unwritten law: ADR Act s 63(1).

14. As noted by the Appeal Panel in Commissioner of Police v Danis [2017] NSWCATAP 7 at [31], in reviewing a reviewable decision made by an administrator (the government agency), the Tribunal re-makes the decision, as if it were the administrator (in this case, the respondent): ADR Act s 63(2).

Matters in issue

15. In these proceedings the onus is on the respondent to satisfy the Tribunal that its internal review decision is justified: GIPA Act s 105(1).

16. Hence, it is for the respondent to satisfy the Tribunal that it does not hold the information sought by the applicant in her 28 January 2022 access application. That information, as noted above, is ‘a full copy of interview complete with facial images’. I re-iterate, it is not disputed that the interview occurred on 19 June 1997 and the facial images were prepared, at the time of interview, from descriptions the applicant had provided.

17. For the reasons that follow, I am satisfied that the respondent has established that it does not hold the abovementioned information.

The GIPA Act

18. The object of the GIPA Act is to ‘open government information to the public’: GIPA Act, s 3(1). That object is achieved by giving members of the public an enforceable right to access government information: GIPA Act, s 3(1)(b) and (c).

19. The term ‘government information’ is defined in s 4(1) of the GIPA Act as follows:

government information means information contained in a record held by an agency.

20. The meaning of the term ‘government information held by agency’ is set out in cl 12 of Sch 4 of the GIPA Act as follows:

12 Government information held by agency

(1) A reference in this Act to government information held by an agency is a reference to—

(a) information contained in a record held by the agency, or

(b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or

(c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or

(d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister).

(2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet).

(3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency.

(4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency’s business or functions is not government information held by the agency.

21. The word ‘record’ is defined in cl 10 of Sch 4 of the GIPA Act as follows:

10 Meaning of “record”

(1) In this Act—

record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means.

(2) A reference in this Act to a record includes a reference to a copy of the record.

(3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.

22. Section 53 of the GIPA Act prescribes what searches an agency is to make for the information sought by an access applicant. That section provides as follows:

53 Searches for information held by agency

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

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

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

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

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

23. Section 58 sets out the decisions an agency can make in determining an access application. That section relevantly provides 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.

Applicant’s evidence and submissions

24. As I have already noted, the applicant’s evidence and submissions primarily concern issues unrelated to her 28 January 2022 access application. However, included in her evidence was a copy of the 1997 interview to which she referred in her access application of 28 January 2022.

25. The applicant had also included with her administrative review application, a copy of the respondent’s decision of 16 March 2022 and the COPS Event Report and COPS Enquire Case Summary for which she had been granted access.

Respondent’s evidence and submissions

Evidence of Ian Steptoe

26. In his statement, Ian Steptoe (Mr Steptoe), explained that he is a Senior Advisory Officer at the Infolink Police Command of the NSW Police Force and in this role, he has a number of responsibilities, including the management of the respondent’s responses to GIPA access applications that are received. As part of that role, he utilises the record keeping systems of the respondent.

27. Mr Steptoe explained that when dealing with the applicant’s internal review application, he undertook a search of the respondent’s COPS database for the information sought in the applicant’s 28 January 2022 access application. He said that the database is used for recording operational police information, and in his search on the database for the information sought by the applicant, he located the COPS Event Report concerning the applicant’s March 1997 report to police of an alleged theft of money from her home. He said that while the COPS Event Report did not refer to facial images, it did include a case file number.

28. He said that a very limited Case Summary Report is kept on the COPS database. In this case, the COPS Case Summary indicated that the matter was suspended in 1998.

29. Mr Steptoe went on to explain that case file items from 1997 are not held in the respondent’s electronic record system. Instead, they were retained in their hard copy form. Therefore, he lodged a request for the case file on the respondent’s ‘blue portal’, which is the system used to centralise requests for access to such records. The response he received from this request was that the respondent did not hold a copy of the case file of the 1997 report by the applicant.

30. Mr Steptoe said that searches were also undertaken by the Police Area Command which undertook the investigation into the 1997 report by the applicant. That Police Area Command advised that it was unable to locate any documents relating to the applicant’s 1997 alleged theft report and investigation thereof.

31. Mr Steptoe noted that the respondent is required to comply with the State Records Act 1998 (NSW) under which the respondent has a ‘Functional Retention Disposal Authority: DA 221’ that requires a retention of ten years for all records relating to an investigation of an alleged theft. Given this Authority, Mr Steptoe was of the opinion that, as no facial images or other records were located in the searches that were made, any facial images and other records that had been made concerning the 1997 report of the applicant were likely to have been destroyed sometime during 2007. That is, any hard copy records (including facial images) relating to the applicant’s 1997 report of an alleged theft are no longer held by the respondent.

Evidence of Detective Senior Constable Stephen Wilson

32. In his statement, Detective Senior Constable Stephen Wilson (Detective Wilson) said that he has been a serving member of the NSW Police Force since 2004 and is currently attached to the Police Area of Command which undertook the 1997 report by the applicant. He said he was contacted by the Infolink Unit of the respondent and was requested to provide a full copy of the 19 June 1997 interview between the applicant and Detective Sergeant RJ Betts and the facial images of the alleged perpetrators.

32. Detective Wilson said that, in his experience, an interview between a victim of an alleged crime and detectives would be recorded in a case file. He went on to say, that because of the age of the case file and note, he could not search for these on the COPS database. So, he also made a request for the record of interview and facial images through the respondent’s ‘blue portal’ platform. He said he received a response from the ‘blue portal’ team which confirmed that a search had been carried out and, because of the age of the case file, no records were located.

Submissions

34. Applying the two-limb approach set-out in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska), at [36] - [44], the respondent submitted the following:

1. it accepts that it would be reasonable to believe that the respondent held the information for which the applicant sought access in her 28 January 2022 access application; and

2. even though it is so accepted, reasonable searches have been made for the information sought and none was located or found.

35. In this regard, the respondent submitted:

1. the information for which the applicant sought access is information contained in historical records going back to 1997;

2. searches were conducted for the records containing the information sought on the respondent’s COPS database and through the ‘blue portal’ – these searches did not locate any records containing the information sought;

3. given the age of the records containing the information sought and the fact that the records related to a 1997 alleged theft, the investigation of which was closed in 1998,and the disposal authority approved under the State Records Act 1998 (NSW) the information is likely to have been destroyed some time in 2007.

36. Based on the above, the respondent submitted that the Tribunal could be comfortably satisfied that it had discharged its onus that it does not hold the requested facial images or any other information relating to the applicant’s 1997 interview with Detective Sergeant Betts.

Consideration

37. In Wojciechowska at [42]- [44] the Appeal Panel noted the following regarding the role of the Tribunal and the application of ss 53 and 58(1)(b) of the GIPA Act:

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

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

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;

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

38. As noted above, s 53(1) of the GIPA Act provides that an agency is only obliged to provide access to the government information requested in the access application and that which is held by the agency at the time the access application is received. In this case, the applicant’s access application, dated 28 January 2022, was received by the respondent on 4 February 2022. However, the information for which access was sought was information dating back to 1997 (almost 15 years ago).

39. I accept the evidence of the applicant that the facial images for which she sought access in her 28 January 2022 access application did exist. The record of interview she provided expressly makes reference to this. Whether Detective Sergeant Betts had a more complete record of interview with the applicant is not clear, but it appears to be accepted that any such record would have been in the Case File of the applicant’s 1997 report of an alleged theft. That file, as explained by Mr Steptoe and Detective Wilson would have been a hard copy record contained in the Case File specifically relating to the applicant’s 1997 report.

40. I accept the evidence of Mr Steptoe and Detective Wilson concerning the searches that were made of the COPS database and through the ‘blue portal’ system. I am also satisfied that these searches satisfied the obligations of the respondent under s 53(2) and (3) of the GIPA Act, in that they were reasonable searches for the information sought by the applicant and were conducted using the most efficient means reasonably available to the respondent.

41. I also accept the evidence of Mr Steptoe and Detective Wilson that, during their respective searches, no facial images or any record of interview with the applicant concerning the applicant’s March 1997 report of a theft at her home were located and that they were likely to have been destroyed under the respondent’s ten year approved retention authority for information of this kind.

Conclusion

42. For the reasons set out above, I am satisfied that the respondent has established that it does not hold the requested 1997 facial images or any further information concerning the applicant’s 19 June 1997 interview with Detective Sergeant Betts concerning her report of an alleged theft from her home.

43. Accordingly, I am satisfied that the decision of the respondent that it does not hold this information is the correct and preferable decision and should be affirmed.

Orders

44. I make the following orders:

1. A hearing of the applicant’s administrative review application is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The decision of the respondent, made on 16 March 2022, is affirmed.

**********

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

Registrar

Decision last updated: 07 November 2023