Nolan v Commissioner of Police

[2020] NSWCATAD 66

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Nolan v Commissioner of Police [2020] NSWCATAD 66
Hearing dates:	8 July 2019, 23 August 2019(submissions closed 28 September 2019)
Date of orders:	26 February 2020
Decision date:	26 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	The decision of the respondent is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Freedom of Information Government Information (Public Access) Act – GIPA – sufficiency of search – scope of access request
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Freedom of Information Act 1989 Government Information (Public Access) Act 2009
Cases Cited:	Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 Mannix v Department of Education and Communities [2014] NSWCATAD 35 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Robert Nolan (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Sparke Helmore (Respondent)
File Number(s):	2019/00105026
Publication restriction:	Nil

REASONS FOR decision

1. This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

2. In January 2017 the applicant (Mr Nolan), was arrested and charged with offences which were dealt with summarily in the Local Court. Mr Nolan seeks to obtain police information relating to his interactions with police officers on the day of his arrest both prior to and subsequent to the arrest. In particular he seeks information relating to police communications on that day and matters relating to police movements and the logs of vehicles and personnel involved in his matter.

3. There were two specific interactions with police involving Mr Nolan on 13 January 2017. The first interaction occurred at the beach car park at Freshwater NSW and the second interaction occurred a short time later at his home. Mr Nolan seeks information that explains the communications and movements of and between the vehicles and their (police officer) operators in respect of these interactions.

4. Mr Nolan initially made a GIPA request on 4 March 2019. That matter was in response to an earlier GIPA Act application that was subject to administrative review in the Tribunal. The earlier proceedings ref: 2018/00088813 resulted in a decision by the Tribunal after hearing that the remaining information in dispute (various officer’s mobile phone records) was not held by the Police. There were some additional matters that were resolved between the parties prior to hearing in those proceedings.

What the GIPA Act provides in respect of Government Information

5. The GIPA Act provides for the proactive release of government information, informal release of government information, as well as the formal release of government information. The Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects.

6. These principles are conveniently summarised in the case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 which provides at [7] - [10]

7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.

8.   With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

9.   There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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".

10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

7. The GIPA Act has an objects provision at s 3, which includes a reference at s 3 (2) (a) that the legislation be applied so as to further those objects.

3 Object of Act

(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.

(2)   It is the intention of Parliament:

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

8. The GIPA Act also provides a number of provisions which allow an agency to refuse to provide access not on the basis of the content of the information, but on general administrative provisions. Some of these types of matters arise in these proceedings.

9. In general terms in these proceedings those matters relate to a finding that the information in question is not held by the agency.

The GIPA Act application process

10. On 4 March 2019 Mr Nolan sought further information relating to his interactions with Police on 13 January 2017. The specific information sought was:

1)   Incident logs including incident header, informant details, call sign details, officer details, ICEMS agency details, incident narrative, action plans, PCN pages, and with end of log for the event for the following:

(a)   Incident logs for police vehicle NB 19 on 13 January 2017 for the time period between 7:30pm and 9:00pm

(b)   Incident logs for police vehicle NB 16 on 13 January 2017 for the time period between 7:30pm and 9:00pm

(c)   Incident logs for police vehicle NB 36 on 13 January 2017 for the time period between 7:30am and 9:00pm.

2)   The identity of the police officers assigned to police vehicle NB 16 for the time period 7:30pm to 9:00pm on 13 January 2017

3)   The details of any time a person was detained in the police vehicle NB 16 for any purpose including the arrest, transfer or any other reason that someone would need to be in a police vehicle as would be recorded on VKG as “we have this kid on board” – the details requested is limited to those that show the movement of NB 16 during the period of 7:30pm and 9:00pm that align with the radio transmission of NB 16 where they say at approximately 8:45pm that “we have this kid on board” on the evening of 13 January 2017.

4)   The time and location anyone was taken to a police station by any police officer assigned to police vehicle NB 16 on 13 January 2017 between the times of 7:30pm and 9:30pm on 13 January 2017.

11. Mr Nolan filed his application for administrative review on 4 April 2019. When he filed his application the respondent had not yet decided the GIPA Act application, and the application was brought under s 80 (c ) of the GIPA Act as a ‘deemed refusal’ as the respondent had not decided the application within the time required by the GIPA Act, - s 63 (1):

63 Deemed refusal if application not decided within time

(1)   If an agency does not decide an access application within time, the agency is deemed to have decided to refuse to deal with the application and any application fee paid by the applicant is to be refunded.

12. Section 57 (1) provides for the time an agency must decide an application:

57 Required period for deciding application

(1)   An agency must decide an access application and give the applicant notice of the agency’s decision within 20 working days (the decision period) after the agency receives the application.

(2)   The decision period can be extended by up to 10 working days for either or both of the following reasons (with a maximum extension under this subsection of 15 working days for any particular access application):

(a)   consultation with another person is required under a provision of this Act,

(b)   records are required to be retrieved from a records archive.

Note. The decision period can only be extended to allow for mandatory consultation, not just consultation that the agency chooses to do.

13. Mr Nolan had sought review by the Tribunal because no decision had been made on his application within the 20 working day period and no extension had been sought. In addition under s 63 such a matter is considered a deemed refusal and the applicant’s review therefore arises under s 8 (c ) which provides:

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

(a)   …,

(b)   …,

(c)   a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

14. The matter was listed for an initial Case Conference on 9 May 2019 where the Tribunal made a direction that the respondent determine the matter on or before 30 May 2019 and Mr Nolan advise on or before 31 May 2019 whether he proposed to dispute the determination (decision of the respondent). A hearing date of 8 July 2019 was fixed should the matter proceed.

15. On 5 June 2019 the respondent sought to vary the timetable in the Tribunal’s order of 9 May 2019 allowing until 11 June for a determination and 12 June for Mr Nolan to provide his view. On 6 June 2019 the Tribunal varied the timetable extending the date of determination until 11 June 2019 and confirming any hearing date as 8 July 2019.

What the respondent decided

16. The respondent’s decision was not finalised until 17 June 2019 when they provided a Notice of Decision under the GIPA Act. The decision falls into two areas. One area concerns a suite of information that was provided to Mr Nolan with minor redactions of personal information of third parties. This relates to a public interest consideration against disclosure under cl 3 (a) to the Table to s 14 which deals with personal information. The decision states:

The redacted documents contain personal information of other persons listed in the CAD documents that are not related to you or the incident you were involved in or the charges against you. I consider there is an overriding public interest against the disclosure of this information to you.

17. The other area concerns a finding that the information was not held by the respondent. The respondent in determining the application decided that in respect of information comprising certain police activities, the information was not held. A summary of the specific items is:

• A report showing dates, times and usernames of all persons who have accessed GPS data of police vehicle NB 16 for 13 January 2017

• A report showing all GPS data searches completed for police vehicle NB 16 for 13 January 2017

• A report showing all GPS data returned by all searches of GPS of police vehicle NB 16 – 13 January 2017

• A report of all times a police officer logged in, called onsite, back on available in police vehicle NB 16 for the time period 5:30pm- 11:00pm 13 January 2027

• A copy of any report that contains any information relevant to GPS data being incorrect for a police vehicle

• A copy of any audits conducted on the GPS tracking used by NSW Police

18. The respondent having conducted searches of the NSW Police Computer Aided Dispatch System, and having contacted the Commander of the NSW Police Wireless Technology Unit and the Coordinator of the Metropolitan Wireless Network Unit and the Team leader / Liaison officer of the NSW Police Fleet Services Unit and the Northern Beaches Local Area Command, was satisfied that the information set out above was not held by NSW Police. As a result the second area of the decision makes a finding under s 58 (1) (b) of the GIPA Act refusing access to the information as the information is not held. The section provides:

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.

(Emphasis added)

19. In accordance with s 58 (2) and (3) of the GIPA Act (above), the respondent did make further decisions on the information applied for, and in some instances identified further information and provided it to Mr Nolan. Many of these processes (further searches) and decisions occurred while the matter was before the Tribunal.

20. On 3 July 2019 the respondent made a further GIPA Act decision. That decision added one further ground for withholding information from the first suite from release to Mr Nolan. The decision stated that disclosure of some of the information would (in accordance with Clause 1 (f) to the table to s 14) ‘prejudice the effective exercise by an agency of the agency’s functions’. The respondent submitted that on balance the above factor (the public interest consideration against disclosure) overrode the general public interest consideration in favour of disclosure. In the further decision the respondent resiled from their earlier finding that the pages of documents (concerning officer Thompson’s communications with Mr Nolan’s lawyer) could all be released, but decided to withhold Page 17 of 20 under the ‘prejudice the effective exercise by an agency of the agency’s functions’ ground. Other than that aspect both decisions were substantially the same.

Jurisdiction

21. The decision under review is a reviewable decision in accordance with s 80 (d) and (e) of the GIPA Act.

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

(a)   …,

(b)   …,

(c)   …,

(d)   a decision to provide access or to refuse to provide access to information in response to an access application,

(e)   a decision that government information is not held by the agency,

22. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act. The Tribunal notes that the application for review has been received within time, being initially brought on the basis that the respondent had failed to make a decision within the time provided for under the GIPA Act..

Administrative Review

23. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision 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; (1979) 46 FLR 409.

The hearing

24. The matter was heard over a number of sittings of the Tribunal. The reason for this was that during the hearing the respondent sought and obtained instructions to obtain further material responsive to the application for access. These matters were facilitated by the Tribunal in order to obtain a resolution of the dispute. It became evident during the hearing that the information provided to Mr Nolan highlighted other information that he believed was within the scope of his request. In addition in respect of related Local Court proceedings Mr Nolan had issued subpoenas and at times contrasted the information and responses he received to the GIPA process with the nature (scope) of the response he received to the subpoenas (where relevant). However the specific subpoenas were not before the Tribunal.

25. As the applicant was not legally represented the practice and procedure of the Tribunal was explained and the broad provisions of the GIPA Act were outlined in the hearing.(s 38 (5) Civil and Administrative Tribunal Act 2013 ‘the NCAT Act’). In particular the parties were content to try and resolve the matter by a consideration of whether any further searches could be conducted as Mr Nolan particularised certain information in greater detail. Mr Nolan advised that he did not press the personal information redactions on the various call sign logs that he had received (being three initially), but maintained that there were more documents within scope that had not been either identified or provided.

26. The parties confirmed that Senior Sergeant Reid (who had made a signed statement for these proceedings) was not required to give further evidence in the proceedings and his statement of 3 July 2019 was received without objection.

27. The hearing involved a technical discussion of the documents released to the applicant and references that those documents made to other related documents. Senior Sergeant Reid’s written evidence indicated that for some of the items that Mr Nolan was seeking (such as an access report identifying who had accessed relevant GPS data), no such reports exist. The evidence indicates that the GPS data is raw data on a screen and a list cannot be produced identifying who has accessed it. In this regard the Tribunal infers that the information cannot be remotely audited by running a report or other computerised program so there is no information held on this item.

28. The respondent’s evidence concerning information relating to searches of the GPS data (i.e. who searched the data) was similar to the GPS access evidence. Senior Sergeant Reid’s evidence was that he was advised that ‘…there was no format to generate a report to show who searched the GPS data.’. Similar requests by Mr Nolan returned the same result. There was either no ‘format to generate a report’ or ‘no records held’. This was the case in respect of the request for a copy of any audits conducted on the GPS tracking used by NSW Police. The respondent’s evidence was that no records were held.

24. At the conclusion of the first part of the hearing the scope of the documents in dispute had been narrowed and the respondent undertook to search for further documents (by consent). The following orders were made at that stage of the matter:

1.   By consent, regarding Item 1 in the scope of the request: the respondent is to search for and confirm whether any further incident report exist concerning the applicant, and if so determine to release it in the same form as that for incident reports already released to the applicant. Such report to be determined and released on or before 23 July 2019.

2.   By consent the respondent is to obtain instructions on the 'Header' blocks of the incident logs of all released reports, as to whether the personal information grounds are pressed, and if not to release that information on or before 23 July 2019.

3.   By consent, the respondent will search for information responsive to Item 3 in the schedule (concerning records of any detained individual as referred to in that item), and if records are identified from VKG, NB 16 logs or other records, provide that information (being personal information) on a confidential basis to the Tribunal on or before 23 July 2019.

4.   By consent, the respondent will search for information responsive to Item 4 (first tranche) relating to time and location of any relevant individual transported in NB 16 in the times so specified in the application request. Any such record / information (being personal information) is to be provided on a confidential basis to the Tribunal on or before 23 July 2019.

5.   The respondent will take instructions on searching for, obtaining and releasing a copy of any 'internal VKG subpoena response / data request' form and advise the Tribunal of their position re: same on the next occasion.

6.   The proceeding is listed for directions on 26 July 2019 at 9:45am.

7    Notes:

The Tribunal notes and the parties agree that items 1, 2, 3, and 4 in so far as they are not covered by these directions, are no longer pressed by the applicant in these current GIPA Act proceedings.

30. Following a directions listing on 26 July 2019 the Tribunal made orders for confidential copies of the call sign log for vehicle ‘NB-16’ to be filed and a confidential affidavit to set out the meaning of the data within the Call Sign Log. Mr Nolan was also given an opportunity to file and serve any further material relevant to explaining his position on why there should be more information provided by the respondent. The matter was adjourned part heard to 23 August 2019.

31. On 24 July 2019 the respondent complied with the orders of 8 July 2019. In respect of orders 1 and 2 further information / documents were provided both to the Tribunal and Mr Nolan.

32. In respect of order 3 the respondent responded that they do not hold any records responsive to the request. The respondent submitted that they were not in a position to search the COPS database using the search parameters of date, time designation (NB-16) and the reference to: ‘kid on board’. However an officer of the respondent had contacted the involved officers assigned to NB–16 during the period who advised that they had no recollection of any arrest of that nature. The officer’s notebooks for the period of the request have been provided to the Tribunal on a confidential basis so that the Tribunal may satisfy itself that the material is out of scope. Order 4 resulted in a nil response due to the lack of information identified concerning NB-16 as per the response to order 3.

33. In respect of order 5 the respondent advised that there is no form or record in the TRIM records system responsive to the applicant’s subpoena.

34. Following the further hearing where some of the produced documents (and confidential documents in chambers) were considered on 23 August 2019, the following orders were made:

1.   The respondent will obtain instructions on the iAsk Police subpoena processing form / information relating to the applicant's Subpoena to Police in legal proceedings and consider release if such a form exists on or before 29 August 2019.

2.   The respondent will seek instructions and provide confidentially to the Tribunal a complete copy of the original documents previously provided on 20 August 2019 (and any relevant related additional documents arising from that process) on or before 29 August 2019.

3.   The respondent will obtain and provide a copy of the call sign log for vehicle NB 19 removing the redactions at time signatures: 20:37:53 and 20:52:11 on or before 29 August 2019.

4. The respondent will obtain instructions on the matter raised by the Tribunal during confidential session with a view to possibly releasing more material from the redacted information provided confidentially to date having regard to s- 55 of the GIPA Act 2009. Any position on this aspect to be confirmed at or before the next listing on 30 August 2019.

5.   The proceeding is listed for directions on 30 August 2019 at 9:30am

6.   Notes:

The Parties agree and the Tribunal notes that the formal hearing of the matter has now concluded and at the next directions listing, the matter will either be withdrawn by the applicant, or the Tribunal will reserve.

35. On 10 September 2019 the respondent advised the Tribunal and Mr Nolan that:

• No iASK record had been obtained following a search concerning the applicant’s subpoena,

• A further version of the confidential document was produced to the Tribunal on a confidential basis on 3 September 2019,

• A further version of the CAD call sign log for NB-19 with the redactions at time signature 20.37.53 and 20.52.11 removed was provided,

• The redacted CAD incident numbers for CAD logs for NB – 16, NB-19 and NB-36 are out of scope (in that they do not relate to the applicant), however the respondent is prepared to provide the applicant with some information from those logs to show the movements of NB-16 during the period sought in the application.

36. At the conclusion of the hearing orders were made for the filing and serving of all the further material agreed to be released by the respondent. Mr Nolan was requested to raise any queries about that data with the respondent and make any further submission after which time he was to either withdraw the matter or advise the Tribunal that he sought the matter to be further determined by the Tribunal. Mr Nolan’s 17 September 2019 submissions in reply constitute a further GIPA request arising for the limitations of the current application. Those submissions are addressed below. No withdrawal was filed with the Tribunal, and a as result the Tribunal has proceeded to finalise the matter.

Respondent’s submissions

37. The respondent’s initial submissions focused on the sufficiency of search grounds which were raised by Mr Nolan in the preliminary hearing processes. The respondent set out the general caselaw and tests concerning searches, as referenced in the case of Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 at [11] – [14] that:

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] QICmr 7; 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.

38. The respondent submitted that the searches have been reasonable in the circumstances. The respondent submitted that Senior Sergeant Reid’s evidence had stipulated the extent of the advice and inquiries made in order to carry out searches in response to the information. There were other submissions made prior to hearing which dealt with the withholding of information (such as the personal information of third parties). These matters were no longer pressed after the first hearing.

Applicant’s submissions

39. In initial written submissions Mr Nolan submitted that there were problems with the police response. They had provided a Call Sign Log in circumstances where he had requested an Incident Log.

40. Mr Nolan also raised a matter concerning the nature of the respondent’s response to the details concerning who was detained and held in the vehicle ‘NB-16’. Mr Nolan submitted that in his earlier proceedings before the Tribunal (2018/00088813), police had submitted that ‘NB-16’ was attending to a domestic dispute for the entire period 7:30pm up to 9:00pm and had produced GPS data in those proceedings to show that the vehicle was at the location / address of that incident. However Mr Nolan submitted that the Call Sign Log provided in the current matter, and VKG audio provided in response to a prior subpoena shows that the submissions in 2018/00088813 were inaccurate. Mr Nolan submitted that this is a breach of s 120 of the GIPA Act (concerning offences / prosecutions under the GIPA Act).

41. Mr Nolan also raised issues relating to s 112 of the GIPA Act in respect of the initial responses to his request for information. That section deals with the Tribunal bringing a matter of concern arising from the operation of the GIPA Act (failure to exercise a function under the Act in good faith) to the attention of the Minister responsible for the agency. Section 120 (as referred to in the paragraph above) deals with prosecutions arising from concealing or destroying government information.

42. Mr Nolan also raised the issue of being allowed to access the GPS data with the assistance of an expert following the provisions set out in s 72 of the GIPA Act. Section 72 provides:

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.

43. Mr Nolan sought an opportunity to inspect the record (the GPS data) in accordance with s 72 (1) (c ) allowing access to the record 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).

44. In final submissions Mr Nolan raised four points of remaining contention with the respondent’s GIPA response. Mr Nolan took issue with the following matters that the respondent submitted.

• That no record existed concerning the police response to Mr Nolan’s subpoena in Local Court proceedings.

• That no record exists of any person transported in the back of Police Vehicle identified as NB-16 and taken to Manly Police Station between 8:30pm and 9:30pm on 13 January 2017. This is despite VKG records stating that police said that ‘they have a kid on board’.

• No CAD record exists for police vehicle NB-16 to show any reason why somebody would be placed in the back of the vehicle to support the radio transmission concerning a person being in the back of the police vehicle.

• No record or report exists to show any faults related to GPS data for police tracking of police vehicle NB-16 or any reports of data searches.

45. Mr Nolan submitted that these five deficiencies in police holdings / recordkeeping should cause the Tribunal to seek further information from the respondent. Specifically Mr Nolan sought information concerning:

• policies and procedures relating to: obtaining VKG material,

• user guides for transporting persons in police vehicles and changing custody arrangements where persons were handed over to a custody manager,

• policies concerning placing persons in and use of caged vehicles,

• guides, policies or manuals concerning how a NSW police officer / employee would operate and troubleshoot the GPS mapping system for tracking NSW police vehicles,

• The name of the GPS tracking system including the name of the manufacturer, model number and version used by NSW Police.

46. As mentioned above at [36] Mr Nolan’s final submission could be described as containing a further GIPA request.

Consideration

47. Turning to the matters raised by Mr Nolan and set out at [45] above, in my view these matters cannot be part of these proceedings. These proceedings concern matters that fall within the scope of Mr Nolan’s GIPA Act request of 4 March 2019. Irrespective of the comprehensiveness of the initial response, the above items (going to policies and procedures) clearly arise as a consequence of what information has been provided to Mr Nolan. Where information is not held or is otherwise not recorded Mr Nolan seeks to delve into those circumstances by obtaining information which sets out NSW Police obligations and responsibilities into various procedures which are commensurate with all or some of the procedures applicable during Mr Nolan’s dealings with police on 13 January 2017. What Mr Nolan sought in his application was information either directly or indirectly related to his dealings. The reference to the ‘kid on board’ is an indirect matter, whereas the CAD’s relating to him are direct matters.

48. The further request concerns general matters arising and is well beyond the scope of the initial GIPA request. If Mr Nolan seeks that information then he must seek it by some other means, as it does not form part of the administrative review of his current matter as it is out of scope, and I so find.

49. Mr Nolan also raises matters in his submissions concerning s 112 and s 120 of the GIPA Act. Those sections provide:

112 Report on improper conduct

If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of:

(a)   the Minister who appears to NCAT to have responsibility for the agency, or

(b)   if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner.

120 Offence of concealing or destroying government information

A person who destroys, conceals or alters any record of government information for the purpose of preventing the disclosure of the information as authorised or required by or under this Act is guilty of an offence.

Maximum penalty: 100 penalty units.

50. Without going into the details as to how the Tribunal might currently approach a s 112 matter, (allowing procedural fairness and the chance to respond to any preliminary finding) in my view there is no evidence before me to make a finding that a person has failed to exercise their functions under the GIPA Act in good faith.

51. The situation of an agency finding more information after pursuing further searches at the Tribunal’s request, and reviewing their decision and consenting to the release of more information during the course of proceedings does not amount to a matter that would enliven s 112.

52. For those reasons I decline to deal with that aspect further.

53. In respect of the s 120 application for similar grounds it would not be appropriate to deal with it. Procedural fairness to the parties and the merits of such an application on the available evidence are all matters which would prevent such an examination at this stage.

54. However more importantly the GIPA Act provides that such matters are not dealt with by the Tribunal. Section 128 provides:

128 Nature of proceedings for offences

(1)   Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.

(2)   Proceedings for an offence under this Act or the regulations may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.

55. However, there is no evidence before me that any of the provisions of s 120 have been enlivened in these proceedings. The position that a VKG recording produced elsewhere contains information which cannot be identified through the GIPA process seeking similar or ‘companion’ records such as binary data logs does not amount to any form of malfeasance. Likewise the absence of records does not indicate conduct to which the GIPA Act (upon administrative review) addresses.

56. As stated in Camilleri at [15]:

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'.

57. I note the comments of President O’Connor in Patsalis. (Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213). I agree with those observations as they apply to searches under the former Freedom of Information Act 1989 and as cited in Camilleri also apply to the GIPA Act. I therefore decline to deal with the s 112 and 120 requests further.

58. In respect of the information provided by the respondent on a confidential basis, I have conducted a review of that material. The basis that it was provided was to determine whether the material was out of scope. Some of that material I considered during a brief adjournment in proceedings and I advised the parties that (subject to a clarification by the respondent) it was out of scope and would be withheld.

57. The further material provided by the respondent on 3 September 2019 includes material prepared in response to the Tribunals orders, as well as un-redacted material in existence at the time of the access request.

58. The material was provided to establish the lack of any relationship between the other incidents concerning NB – 16 and the applicant. I am satisfied that the incidents referred to in the confidential material show that NB-16 attended jobs in other areas of the Northern Beaches Command, (other than the locations involving Mr Nolan’s matters that evening), in addition to references to other geographical incidents and records that they were not attending those incidents (out of area).

59. The Notebooks (as discussed but not viewed in the hearing) provide a chronological record of jobs of the officers from the first job at 19:55 hrs, through to 23:45hours that day. Nowhere in the stated period within that time is there a reference to material within scope.

60. In respect of the request to have the data analysed by the parties under s 72 of the GIPA Act (as referenced at [42] above), I note that the respondent has declined that approach under s 72 (1) (c ) as the estimate was $4,000 - $5,000 and the majority of the data has been made available to the Tribunal (albeit in paper form), with no further information forthcoming. On review I see no reason why the respondent’s decision on this aspect should be overturned.

61. On the basis of these findings and those that I have made above, there is no need to consider the matter further.

Conclusion

64. The correct and preferable decision is that in respect of the applciation, the decision of the respondent will be affirmed.

65. I therefore make the following order:

Orders

1. The decision of the respondent is affirmed.

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

Registrar

Decision last updated: 26 February 2020