Hula v Commissioner of Police (NSW)

[2013] NSWADT 153

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Hula v Commissioner of Police, NSW Police Force [2013] NSWADT 153
Hearing dates:	On the papers
Decision date:	08 July 2013
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial member
Decision:	The decision under review is affirmed.
Catchwords:	government information - personal information - missing documents - police notebooks - adequacy of search
Legislation Cited:	Government Information (Public Access) Act 2009 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
Cases Cited:	Commissioner of Police v Camilleri [2012] NSWADTAP 19 Flack v Commissioner of Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13 NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55
Category:	Principal judgment
Parties:	Roman Hula (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	R Hula (Applicant in person) Sparke Helmore (Respondent)
File Number(s):	133005

reasons for decision

Background

1. On 22 October 2012 the Applicant, Roman Hula, made an application under the Government Information (Public Access) Act 2009 (GIPA Act) for access to government information which he believed was held by the Respondent:

(a)   CAD: 462901-24082012 000 Call recording, and Photographs of my facial injuries taken by Mascot PS PROCON WRIGHT & Police Note Book entries of CON EVERSON respectively related to COPS No: E50973189 an 24/08/2012 event, i.e. Braking in Entry (Not Trespass), Physical Assault, and Property Theft (More like AGR. Robbery) at applicant's address.

(b)   CAD: withheld-25082012 000 Call recording, and Police Notebook entries (not summary reports) of Mascot PS PROCON KUEK & CON NIGHTINGALE also related to COPS No: E50973189 a following morning 25/08/2012 event, i.e. Braking In Entry (No trespass), Physical Assault, and Property Theft (More like AGR. Robbery) at applicant's address.

(c)   CAD: 451316-22082012 000 Call recording, and Police Notebook entries (not summary report) of Mascot PS CON DENNISON & CON MURTEZANI related to COPS No: E48770647 an 22/08/2012 event, i.e. Continuous Harassment & Assault at applicant's address.

(d)   CAD: 315964-28072012 000 Call recording, and Police Notebook entries (not summary report) of Mascot PS CON NIGHTINGALE related to COPS No: E48244224 an 28/07/2012 event, i.e. Continuous Harassment & Assault at applicant's address.

(e)   Police Notebook entries, COPS Event #, & Summary reports (not 000 Call CD audio) of SENCON MONAGHAN & CON LOGUE related to 12/07/2012 000 call for assistance from [phone] @ 22:54 at applicant's address.

(f)   Police Notebook entries, COPS Event #, & Summary reports (not 000 Call CD audio) of Mascot PS PROCON HARPER & CON BOJE related to 08/07/2012 000 Call for assistance from [phone] @ 18:18 at applicant's address.

1. The Respondent determined that, after conducting searches, it held some information that fell within the scope of the access application and provided the applicant with some of the relevant documents. It concluded that two documents (COPS Event Number E50973189 and police notebook entry F526173 of Constable Wright) should only be released in part, on the basis that there was an overriding public interest against disclosure because the information withheld contained personal information relating to individuals other than the Applicant (Table 3(a) s.14 GIPA Act), or that it would prejudice the detection or investigation of a contravention of the law: Table 2(b) s.14 GIPA Act. Photographs requested by the Applicant were also not supplied at that time.

1. When the Applicant sought review by the Tribunal he added a further request for additional information which had not been sought in the access application, namely the notebook entries of Constable White related to COPS Event E50973189. The Respondent made a supplementary determination wherein it reconsidered its previous findings and released (in full) relevant pages from Constable Wright's notebook and photocopies of the photographs requested in the access application.

1. The Respondent also determined that it did not hold any of the following records of notebook entries sought in the access application:

(a)   Constable Monaghan and Logue (with reference to CAD 232259)

(b)   Probationary Constable Harper and Constable Boje (with reference to CAD 211175)

(c)   Constable White and Constable Everson (with reference to COPS No: E50973189)

(d)   Constable Nightingale (with reference to COPS No: E50973189 and E48244224), and

(e)   Constable Murtezani (with reference to COPS No: E48770647).

1. The Respondent provided to the Tribunal, on a confidential basis, a copy of the notebooks of those officers.

Issues before the Tribunal

• Is there an overriding public interest against disclosure of the outstanding information sought by the applicant in terms of s.13 of the GIPA Act?

• Are there reasonable grounds to believe that there are additional documents? If so, did the respondent undertake reasonable searches to find the documents?

Relevant Legislation

1. Subsection 12(1) GIPA Act provides that there is a 'general public interest in favour of the disclosure of government information.' Subsection 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government Information. The subsection also sets out a number of examples of public interest considerations in favour of disclosure of government information.

1. Section 13 GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure

1. The general public interest considerations against disclosure are set out in a Table in s.14 of the GIPA Act.

1. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It 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.

1. Section 54 GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable, to consult with specified persons before providing access to information. That requirement only applies to information, which is of a kind that requires consultation under s 54(2): see s 54(1). The information requiring consultation includes personal information about a person: see s 54(2)(a).

CONSIDERATION

Is there an overriding public interest against disclosure of the outstanding information sought by the applicant in terms of s.13 of the GIPA Act?

1. The remaining information to which the Respondent has refused access is the name and details of a resident interviewed in the COPS event summary E50973189. It was unclear if the applicant pressed his request for access to that information but, for completeness, I have addressed that information.

1. In deciding whether to release information, the Tribunal must apply the public interest test and decide whether or not an overriding public interest against disclosure applies to the information. As noted above, s 13 GIPA Act requires the Tribunal to undertake the following steps:

• identify the relevant public interest considerations in favour of disclosure

• identify the relevant public interest considerations against disclosure.

• determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.

Public interest considerations in favour of disclosure

1. It was apparent from the applicant's submissions that he has a deep mistrust of the Respondent and that he is very dissatisfied with the manner in which his application has been considered. Beyond that, it was difficult to ascertain what public interest considerations that favour disclosure he might assert. Nonetheless, I observe that s.12 GIPA Act reiterates the general presumption in favour of disclosure of government information and that in an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1) GIPA Act.

Public interest considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14 GIPA Act.

1. The respondent submitted that the following public interest consideration against disclosure is relevant: cl.3(a) of the Table - reveal an individual's personal information.

1. Section 14, Table 3(a) of the GIPA Act provides:

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,

1. "Personal information" is defined in GIPA Act, Schedule 4, clause 4:

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.

1. "Reveal" is also defined in Schedule 4 clause 1 of the GIPA Act as follows:

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

1. Under cl.6(1) of Schedule 1 of the Freedom of Information Act 1989, information relating to the name, address, date of birth, sex, home telephone number and mobile telephone number of a victim and witness, which was provided to Police in the person's private capacity, is "personal information": Martin v Commissioner of Police, NSW Police [2005] NSWADT 23. That definition is equally applicable under the GIPA Act.

1. I have examined COPS event summary E50973189, which was provided to me by the Respondent on a confidential basis. It contains the name and details of a person interviewed by police officers. The Respondent submitted, and I agree, that the name and details of the person is personal information and, on the face of the document, were supplied to, and collected by, investigating police officers in the course of their duties. Disclosure of the information would have the effect of revealing the person's identity.

Conclusion

1. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in it in accordance with the Act, paying due regard to the principles in s 15. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure can be determined: see Flack v Commissioner of Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 ('Hurst') at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s.5 GIPA Act.

1. Because the respondent bears the onus of justifying its decision to refuse the applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure.

1. There was no evidence that the respondent had consulted the complainant: see s 54(2)(a) GIPA Act. However I have taken into account the public interest in affording individuals the liberty to draw to the attention of agencies to factual matters that they think may involve possible non-compliance: see NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55.

1. The respondent, from its action in investigating the complaint may place some reliance upon complaints about the conduct of persons in respect of compliance with its regulatory functions: Director General, Department of Education & Training v Mullett & Anor (GD) [2002] NSWADTAP 13. In the absence of evidence as to the extent the respondent may rely upon complaints as the source of its information, this consideration is given limited weight.

1. Overall though I find the respondent's submissions are sufficiently persuasive for it to have discharged its onus under s.105 of the GIPA Act and I find that the public interest considerations in favour of disclosure are outweighed by the public interest considerations against disclosure.

Are there reasonable grounds to believe that there are additional documents? If so, did the respondent undertake reasonable searches to find the documents?

1. The Respondent's determinations were to the effect that, under s.58(1) of the GIPA Act, it does not hold the notebook entries of Constables Monaghan and Logue, Probationary Constable Harper and Constable Boje, Constables White and Everson, Constable Nightingale, and Constable Murtezani ('the notebook entries') which the applicant seeks. A decision that information is not held by an agency is reviewable by this Tribunal: s. 80(e) GIPA Act.

1. The approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 ('Shepherd'), as to what constitutes a sufficient search has been adopted by the Tribunal in a number of cases, in particular, in Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201, DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 ('Patsalis'); Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]; O'Hara v North Sydney Council [2005] NSWADT 100 at [11]; and Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.

1. In Shepherd it was said at [19] that there were two questions for consideration:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

1. Simply put, the Tribunal must come to a view whether there are reasonable grounds to believe there are some further documents relevant to the application and, if so, whether the respondent has tried reasonably hard to find them.

1. In Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 at [11] - [16] I reviewed past decisions of the Tribunal in relation to reasonable searches and noted the President had reviewed the law on this issue in Patsalis. In Patsalis at [63], the President said that the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate. In Patsalis, the documents to which the applicant sought access had existed but were subsequently lost. Numerous searches were conducted but failed to find them and, ultimately, his Honour concluded at [59] that 'it would be a waste of time to ask the agency to do any more searches'.

1. In Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30] the President considered the key factors in assessing whether a sufficient search had been carried out. What constitutes a sufficient search will vary with the circumstances.

1. In relation to the first stage of the Shepherd test, the Applicant did not produce any evidence to suggest that the notebook entries were actually made by the relevant Police Officers or that these documents currently exist as records of the Respondent. I do not attach great weight to this though, because it is not necessarily within the applicant's knowledge whether such notebook entries were made or not. Of course, if the applicant were able to provide evidence that he had observed the notebook entries being made, the position would be quite different. It is not enough for an applicant to merely assert non-compliance by the respondent with its obligations under the GIPA Act on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69].

1. In relation to the second stage of the Shepherd test, the Respondent referred in its determinations to the searches it conducted. Enquiries were directed to Botany Bay Local Area Command and PoliceLink Command regarding notebook entries made by the police officers in relation to the COPS Events (or CAD references) listed by the applicant and the Respondent formed its view based on information provided in response to its enquiries.

1. Since that time, the Respondent obtained the notebooks of each of the officers. A redacted version of each was provided to the applicant. I was provided, on a confidential basis, with a complete version of each notebook covering the period in which the entries sought by the applicant would have appeared. On careful examination, none of the notebooks contains any reference to any activity in respect of which the applicant seeks access.

1. I am therefore satisfied that reasonable searches have been undertaken to locate information that comes within the scope of the information sought by the applicant. Specifically, I find that no information exists which satisfies the applicant's request for the notebook entries. I am therefore satisfied that the agency's determination is a fully responsive one: Cianfrano v Director General, Premier's Department [2006] NSWADT 137, at [65]. Further, I am satisfied there are no further searches the respondent can reasonably undertake to attempt to locate any additional documents falling within the scope of the application.

DECISION

1. The decision under review is affirmed.

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Decision last updated: 08 July 2013