Matthew v NSW Police Force
[2013] NSWADT 225
•14 October 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Matthew v NSW Police Force [2013] NSWADT 225 Hearing dates: On the papers Decision date: 14 October 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed.
Catchwords: Access to government information - access application - reasonable searches Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Freedom Of Information Act 1989Cases Cited: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5
Chu v Telstra Corporation Ltd [2005] FCA 1730
Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Miriani v Commissioner of NSW Police [2005] NSWADT 187
Patsalis v Commissioner of Police. New South Wales Police Service [2003] NSWADT 213
Saggers v Environment Protection Authority [2013] NSWADT 204
Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464Category: Principal judgment Parties: Margaret Matthew (Applicant)
NSW Police Force (Respondent)Representation: Boyce Law (Applicant)
Sparke Helmore Lawyers (Respondent)
File Number(s): 123371
reasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant made an application ("the Access Application") under the Government Information (Public Access) Act 2009 ("the GIPA Act") for access to government information that she believed to be held by the Respondent.
The Access Application requested the following:
1. All documents, including any with allegations in relation to me and the name of the informant, held in any section or Department of the NSW Police.
2. Specific information as to why I, having submitted a written application, was not accepted into the role of Volunteer in Policing.
The Respondent's Notice of Decision in relation to the Access Application stated that the Part 1 of the Access Application had been interpreted as a request for any events recorded on the Respondent's Computerised Operation & Policing System ("COPS") involving the Applicant and a criminal record check. The COPS system records all reports investigated by police from 1994.
The Respondent's Notice of Decision concluded that a criminal record check in relation to Applicant identified no records that fall within the ambit of that part of the request; a search of COPS events in relation to the Applicant identified no records that fall within the ambit of that part of the request; and no records were identified that fall within the ambit of Point 2 of the Access Application. However, the search did locate a Crime Information Report dated 17 February 1978 ("the Report").
The Respondent determined to release a redacted copy of the Report. Personal information relating to individuals other than the Applicant was withheld on the basis that disclosing any of the third party personal information would be unreasonable.
The Applicant has applied to the Tribunal for external review of the Respondent's determination that it does not hold any other information relating to the Applicant that falls within the ambit of the Access Application. She believes that the Respondent may hold further information that falls within the ambit of the Access Application.
The Respondent made further inquiries in relation to the existence of any other documents that might satisfy the Applicant's request but found no documents other than the Report.
Applicable legislation
The objects of the GIPA Act are set out in section 3(1) -
In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(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.
'Government information' is given a wide meaning (section 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in section 4. The Respondent is an agency to which the GIPA Act applies.
The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (section 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (section 9).
With limited exceptions, the Act establishes a principle that there is pubic interest in favour of disclosure (section 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited.
There will only be an overriding public interest against disclosure when the public interest test in section 13 is satisfied. It provides -
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The public interest considerations against disclosure are limited to those set out in the Table to section 14.
Section 53 of the GIPA Act provides:
53 Searches for information held by agency
(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.
(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Persons aggrieved by a reviewable decision may seek a review by the Tribunal (section 100). When this provision is read with section 38 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act.
The Tribunal's function on review under section 63 of the ADT Act is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
In any review of a reviewable decision, section 105 places the burden of justifying the decision on the agency concerned. In this particular matter, the Applicant has raised the issue of the sufficiency of the search undertaken by the Respondent. It is for the Respondent to show what steps were taken in the search for information falling within the scope of the Access Application and to satisfy the Tribunal that those steps were sufficient.
The issue of what constitutes an adequate search has been considered in numerous decisions under both the GIPA Act and the repealed Freedom of Information Act 1989.
In Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, the Information Commissioner of Queensland identified a two limb approach to the question of what constitutes an adequate search (at [19]):
(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.
The decision in Shepherd has been affirmed in subsequent decisions of the Tribunal on a number of occasions. In my recent decision in Saggers v Environment Protection Authority [2013] NSWADT 204 at paragraph [39] I noted Judicial Member Isenberg's review past decisions of the Tribunal:
In Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5, Judicial Member Isenberg discussed the approach to be taken in determining whether the search undertaken by an agency is sufficient. In doing so she referred to a number of authorities that considered that issue for the purposes of the now repealed Freedom Of Information Act 1989 ("the FOI Act"). She stated:
10 In deciding whether a sufficient search has been carried out, the ultimate issue for the Tribunal is whether the agency's conclusion, that it does not hold the documents sought by the applicant, is sound.
11 What constitutes a sufficient search has been considered by the Tribunal in a number of cases. In Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], the President said that the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, should be adopted in addressing sufficiency of search issues. In Shepherd the Information Commissioner said at [19] that there were two questions for consideration were:
'(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.'
12 This approach has been followed by the Tribunal in a number of cases such as 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; O'Hara v North Sydney Council [2005] NSWADT 100 (O'Hara); and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.
13 It is not enough for the applicant to merely assert non-compliance 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].
14 With regard to the second part of the test set out in Shepherd, President O'Connor considered the key factors in assessing whether a sufficient search had been carried out in Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. These factors included, relevantly, the ability to retrieve any documents that are the subject of the request. What constitutes a sufficient search will vary with the circumstances.
15 In Patsalis at [63], President O'Connor 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: see also O'Hara. 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'.
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, in all the circumstances, the Respondent has made reasonable search efforts to locate them.
Are there reasonable grounds to believe that further documents exist?
The Applicant's Position
The Applicant relies on her own evidence of her dealings with the Respondent over a long period of time. She gave evidence of discussions that she had with Senior Constable Cheryl Hall in relation to her expression of interest in performing voluntary work with the Respondent and stated that she attended the Armidale Police Station and delivered a hand written note to Senior Constable Hall at the Station. On the handwritten note she had included her full name and previous surnames, her Education Department teaching number and her former teaching position.
Her attempts to make headway in her application were unsuccessful and she did not pursue the matter further.
As an annexure to her statement of 28 August 2013 the Applicant provided her recollection of some incidents involving herself and members of the NSW Police force. The timing of these incidents extended from early 1967-1968 to 1978. Most of the incidents she referred to involved her ex-husband.
From the information that the Applicant provided it would be reasonable to expect that the Respondent would have recorded some information about at least some of the incidents.
The Respondent's Position
The Respondent's position is that the Tribunal should be satisfied that reasonable searches have been undertaken to locate information that comes within the scope of the Access Application and that no information exists which satisfies the request.
It asserts that, with the exception of the Report, it does not hold any information relating to the Applicant that falls within the scope of the Access Application. The Respondent's evidence is that its electronic records do not extend as far back as the incidents to which the Applicant referred. Its search of archives did not locate any other information.
Consideration
The Applicant's evidence suggests that she has had numerous dealings with the Respondent in the past. Her evidence is not disputed. In my view there are reasonable grounds to believe that records would have been created at the time of at least some of those incidents.
There is at least the likelihood that there are additional documents that have not been located. However, it is probable that records of those incidents would have been in hard copy format eg in Police notebooks or may have been recordings of telephone conversations. There is no evidence to suggest how long the Respondent maintains records of that kind.
In my view there reasonable grounds to believe that at least some further documents might still exist.
Were the search efforts made by the Respondent to locate such documents reasonable in all the circumstances of this matter?
The Respondent's Position
The Respondent's evidence is that it has conducted searches of its databases and has been unable to locate any documents other than the Report. In regard to the searches undertaken the Respondent relies on the evidence of Constable Clare Taylor, Senior Sergeant Darren Brand and Senior Constable Cheryl Hall.
Senior Constable Hall's evidence concerns her dealings with the Applicant in regard to her expression of interest in work under the Respondent's Volunteer In Policing ("VIP") program. She envisaged a VIP role for the Applicant assisting her in her position as the Brief Manager for the New England Command. However, she stated that she has no knowledge of any written application from the Applicant regarding participation in the Respondent's VIP program.
Senior Constable Hall said that the Respondent's New England Crime Prevention Officer, Senior Constable Mandy Vaughan, processes VIP applications. She said that she spoke with Senior Constable Vaughan and that she has no knowledge of any VIP application by the Applicant. She said that Senior Constable Vaughan had indicated that she could not remember ever meeting with the Applicant or talking with her about becoming a volunteer.
Constable Taylor answered a telephone call from the Applicant in March 2013 in which the Applicant asked about whether the Respondent had a record of an Apprehended Violence Order taken against the Applicant's ex-husband about 23 years earlier. In response to the query Constable Taylor sought advice from colleagues who advised that the Respondent's systems did not go back that far. She conducted a search of the COPS system and advised the Applicant that she could not locate an Apprehended Violence Order against the Applicant's ex-husband.
In a subsequent statement she stated:
I understand from my training and experience as a Police Officer in the NSW Police Force that the COPS database is an operational database used by the NSW Police Force to record information relevant to all victims, offenders and incidents that require police action (even only to record something that may be reported to NSW Police). Information in the COPS database is used for investigation and intelligence purposes.
Constable Taylor provided a detailed explanation of the steps that she took in searching the COPS database in response to the Applicant's query. The following result was received in relation to the Applicant's ex-husband's name:
This person was known on the previous Criminal History System but the details have not been copied to COPS
The nature of this person's involvement in the old system is unclear. They either have a criminal history or were
Fingerprinted for administrative purposes
Constable Taylor stated:
As there were no exact matches for Mrs Matthew using either her current name or other name, and her date of birth, I Informed Mrs Matthew that there were no Apprehended Violence Orders listed against her in the COPS database. Based on the above searches, I could not locate an Apprehended Violence Order against [the Applicant's ex-husband's name] either and I informed Mrs Matthew as such.
As the above COPS screen shots show, there are in fact no entries or information of any type recorded against Mrs Matthew in the COPS database. However, since Mrs Matthew did not make a general inquiry as to what was recorded against her name and only mentioned the Apprehended Violence Order, my response to her telephone inquiry focused on advising her that there was no Apprehended Violence Order recorded against her name.
Senior Sergeant Brand is attached to the Respondent's Information Access and Subpoena Unit. That unit is responsible for receipt and response to access applications received by the Respondent under the GIPA Act. He routinely searches the Respondent's databases for information sought in access applications and he consults with internal Police Force commands, business units and external third parties in the process of determining access applications. He liaises with the Office of the Information and Privacy Commissioner and prepares internal review determinations and Notices of Decision in response to access applications under the GIPA Act.
Senior Sergeant Brand stated that the searches that were conducted in response to the Access Application included:
a. Searches of the COPS system;
b. Searches of the Respondent's document management system (TRIM);
c. Direct inquiries with the New England Local Area Command where the Applicant lodged her written application to become a VIP;
d. Direct inquiries with the Manager of the VIP program.
Notwithstanding these searches, the Information Access and Subpoena Unit was unable to locate any further records held by the Respondent relating to the Applicant. In correspondence to the Applicant he noted:
It is not outside the experience of this unit that searches for documents that were purportedly created approximately 40 years ago, meet with a nil find.
This is attributable to any number of factors, including but not limited to, varying statutory requirements in relation to the period of time records are required to be retained by Government agencies, record handling practices at the relevant time (1970's) and the way in which crime was reported at the relevant time (that is, no computer records).
There is but one remaining search I can direct in relation to your application. I will cause a search to be conducted at Archives for all and any documents relating to you, that search will include
reference to ALL names provided. That search will be directed to Archives today. As soon as there is a response, I will advise you via return email.
A search of the Respondent's Archives did not locate any further documents falling within the scope of the Access Application. Senior Sergeant Brand concluded:
In my view, the searches that have been undertaken to date in response to Mrs Matthew's access application have been reasonable and adequate in the circumstances. Furthermore, It is my view, based on my experience as the Coordinator of the [Information Access and Subpoena Unit] and in dealing with access applications under the GIPA Act, there are no further searches that could be undertaken by the [Information Access and Subpoena Unit] of any records held by the NSWPF, for information or records relating to Mrs Matthew.
The Respondent submitted that as the Applicant does not dispute the decision to delete personal information of a person other than the Applicant from the Report. Accordingly, the Tribunal should affirm this aspect of the determination.
The Respondent further submitted that reasonable searches have been undertaken to locate information that comes within the scope of the Access Application and that the Respondent does not hold any other information relating to the Applicant that falls within the scope of the Access Application. Accordingly, the Respondent submits that the Tribunal should affirm the decision under review.
The Applicant's Position
The Applicant relies on views expressed by the Tribunal's President in Miriani v Commissioner of NSW Police [2005] NSWADT 187 at paragraph [30] where he set out the factors that are relevant to assessing whether a sufficient search had been carried out. These factors included the clarity of the request, the nature of the agency's record keeping system and its ability to retrieve documents that are the subject of the request through that system (i.e. through identifiers supplied by the Applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant).
The President went on to stress that what will constitute a sufficient search will vary depending on the circumstances.
The Applicant submitted that there was sufficient clarity and simplicity in the parameters of the Access Application. Despite its breadth, the nature of the Applicant's request was simply all documents referring to the Applicant held by the Respondent. In performing such a search, it is submitted that only very basic identifiers would be required to satisfy the search, such as the Applicant's name and or alternatively her date of birth. Accordingly, the Applicant submits that the Tribunal should not find that the reasonableness of the Respondent's search efforts were negatively impacted by any lack of "clarity" in the Access Application.
In Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195 at paragraph [65] the President said that in determining whether reasonable searches had occurred for the documents in question, the Tribunal must be satisfied that an agency's determination was a "fully responsive determination".
The Applicant submits that it is reasonable to infer from the Respondent's finding of only one document in answer to the Access information that the Respondent's Decision was not a "fully responsive determination" and that accordingly the Respondent's search was not reasonable. The Applicant further submits that the breadth of her request supports the likelihood that the Respondent's search was not a "fully responsive determination".
In Patsalis v Commissioner of Police. New South Wales Police Service [2003] NSWADT 213 at paragraph [63], the President said that the standard of search that an agency is obliged to conduct is simply whether reasonable searches have been performed. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its record keeping processes, does not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate.
However, the Applicant submits that the finding of only one document in answer to her Access Application is indicative of an unreasonable search, rather than merely the weaknesses in the Respondent's searches or failures in their record keeping processes.
Moreover, given that the Report is dated 1978, an inference can be made that the Respondent's record keeping processes are robust and of the nature which would be productive of more documents pursuant to the Access Application if reasonable searches had been performed.
In Chu v Telstra Corporation Ltd [2005] FCA 1730 at paragraph [35], Finn J of the Federal Court said with regard to s 24A of the Freedom of Information Act 1974 (Cth) (which has an express provision in regard to an agency taking all reasonable steps to locate documents) that it was not meant to be a refuge for the disordered and the disorganised.
The Applicant submits that in the absence of an extensive search, there is at least the likelihood that there are additional documents that have not been located. The Applicant submits that the Tribunal should accept as more likely that the Respondent has not performed an extensive search, and that there is a likelihood that documents pertaining to the Access Application exist.
It is submitted that the search that was undertaken by the Respondent was not reasonable, sufficient or adequate. It is probable that further searches would locate further documents that fall within the scope of the Applicant's request.
The Applicant invites the Tribunal to set aside the Decision under review on the basis that there are reasonable grounds to believe that there are further documents relevant to the Access Application and that the Respondent has not tried reasonably hard to locate them.
Consideration
The Respondent bears the burden of onus of demonstrating that it undertook reasonable searches for information that falls within the scope of the Access Application. The Respondent's evidence sets out clearly the endeavours the officers undertook.
That evidence has not been challenged and I accept it.
While the Applicant has submitted that the searches were inadequate, there is no suggestion of what other searches could reasonably be undertaken.
As noted above it is my view that there are reasonable grounds to believe that there may be other information in existence that falls within the scope of the Access Application. However, it is also my view that if the information is held, it is not readily accessible.
It is only necessary for the Tribunal to find that a reasonable search has been undertaken. Although what constitutes a sufficient search will vary with the circumstances, the key factors in assessing whether a sufficient search had been carried out include, relevantly, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be reasonably inferred by the agency from any other information supplied by the applicant. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate.
The onus is on the Respondent to show that it has made search efforts that were reasonable in all the circumstances of this particular case.
In my view, it is not reasonable to expect the Respondent to undertake a search of records that are not in an electronic form and which date back over 30 years. Such an expectation would be unreasonable in all the circumstances.
I accept that the Respondent's officers diligently undertook the searches outlined in good faith. I consider that the endeavours undertaken on behalf of the Respondent to retrieve all the relevant documents, amounted, in the circumstances, to a reasonable search.
In relation to the Applicants request for information as to why she was not accepted into the role of Volunteer in Policing it seems that the likely answer is that no formal application was ever processed by the Respondent. If that were the case, no documents would be held that show reasons why the Applicant was not accepted into the role.
Therefore, the Respondent should not be required to undertake further searches and the decision that the Respondent does not hold any further information relating to the Applicant should be affirmed.
It appears that the Applicant does not dispute the Respondent's decision to delete personal information from the Report. Accordingly, that aspect of the determination is also affirmed.
Order
The decision under review is affirmed.
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Decision last updated: 14 October 2013
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