Nolan v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 120

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Nolan v Commissioner of Police, NSW Police Force [2019] NSWCATAD 120
Hearing dates:	20 August 2018, 26 September 2018, 31 October 2018
Date of orders:	17 June 2019
Decision date:	17 June 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	The reviewable decision of 11 July 2018, to the extent that it relates to the determination that the Respondent does not hold call records of NSW Police Force officers’ personal mobile telephones, and therefore the request for that information is refused pursuant to s58(1)(b) of the GIPA Act, is affirmed.
Catchwords:	ADMINISTRATIVE LAW - GIPA Act – Government Information – whether information held by the agency – whether in possession or control – capacity as an officer or member of staff of an agency – obligation to undertake reasonable searches
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009
Cases Cited:	Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Gordon v University of Sydney [2011] NSWADT 278 Re Holt and Education Queensland (1998) 4 QAR 310 Re Hoser and Victoria Police (1990) 4 VAR 259
Category:	Principal judgment
Parties:	Robert Stephen Nolan (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	R Nolan (Applicant in person) Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/0088813
Publication restriction:	Nil

Reasons for decision

1. On 14 February 2018 Robert Stephen Nolan (‘the Applicant’), made an application to NSW Police for information relating to an incident occurring on 13 January 2017.

2. On 20 March 2018 the Applicant sought review by the Tribunal of the deemed refusal to the request for information dated 14 February 2018, pursuant to s9(1) of the Government Information (Public Access) Act 2009 (‘GIPA Act’). During the Tribunal’s case management process, the issues between the parties were narrowed to the production of the following information:

1. Call records from police officers’ personal mobile telephones between 8pm and 8.30pm on 13 January 2017; and

2. GPS plotting data for police paddy wagons between 8pm and 8.30pm on 13 January 2017.

3. On 11 July 2018 the Commissioner of Police, NSW Police Force (the Respondent) made a late decision on the Applicant’s request for information (‘the reviewable decision’), which determined that:

1. The Respondent does not “hold” call records of NSW Police Force officers personal mobile telephones, and therefore the request for information is refused pursuant to s58(1)(b) of the GIPA Act;

2. GPS plotting data for two police paddy wagons (NB 15 and NB 17) would be provided pursuant to s58(1)(a) of the GIPA Act. The GPS plotting data for other police paddy wagons in that time period was not “held” and was therefore refused under s58(1)(b) of the GIPA Act.

4. Following the decision of 11 July 2018, the Respondent complied with the Tribunal’s orders to produce the GPS plotting data for police paddy wagon NB16 for the time period between 7.30pm and 9pm on 13 January 2017, evidence explaining the extraction of the data, and a map showing the GPS plotting data. The information produced by the Respondent demonstrated that police paddy wagon NB16 was stationary at a fixed location on Pittwater Road between 8.17pm and 8.58pm, with no data for the period 7.30pm to 8.16pm and 8.59pm to 9pm.

5. At a directions hearing on 31 October 2018 the Applicant confirmed that the Respondent’s evidence filed in these proceedings satisfied his request for information pertaining to the police paddy wagons, and the only issue remaining outstanding for the Tribunal’s determination was:

1. whether the Respondent “held” the call records of NSW Police Force officers Constable Samuel Thompson and Constable Andrew Hinchen for calls made to and from their personal mobile phones during the specified period, 8pm to 8.30pm on 13 January 2017; and therefore

2. Whether those call records should be provided to the Applicant pursuant to his GIPA Act request.

Jurisdiction

6. The Tribunal’s jurisdiction to conduct this review derives from s100 of the GIPA Act read with s28 of the Civil and Administrative Tribunal Act 2013 and s9 of the Administrative Decisions Review Act 1997 (‘ADR Act’).

7. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s105(1).

8. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s63(3).

The GIPA Act

9. Section 3(1) of the GIPA Act provides:

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.

10. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.

11. The GIPA Act gives a member of the public an enforceable right to access information “held” by a government agency. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.

12. Under Schedule 4 clause 12(1) of the GIPA Act, information is held by an agency in the following circumstances:

1. the information is contained in a record held by the agency, or

2. the information is contained in a record held by a private sector entity to which the agency has an immediate right of access, or

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

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

13. "Record" is defined in Schedule 1 clause 10(1) as meaning "any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means".

14. Section 53(1) of the GIPA Act specifies that 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.

Consideration

15. The Applicant explained that the information he sought related to an incident on 13 January 2017 between 8pm and 9pm in which police officers from the Northern Beaches Local Area Command attended his residence. The police officers used their personal mobile phones to make and receive telephone calls and to make a video recording. The Applicant wants to include the information he seeks, regarding which officers received or made calls using their personal mobile phones during that period, and to whom they made or received those calls, in his submissions to the NSW Police Force and NSW Law Enforcement and Conduct Commission investigating his formal complaints regarding the incident.

16. It is not in dispute in the proceedings that one or more of the Respondent’s officers used their personal mobile telephones in the course of the performance of their duties on 13 January 2017 while responding to an incident involving the Applicant. The question is whether the call records of those personal mobile telephones are held by the Respondent for the purpose of the GIPA Act.

17. The Respondent submits that it does not ‘hold’ the police officers’ personal mobile phone records, in the sense of physical possession. It contends that based on a plain reading, subclause 12(1)(a) of the GIPA Act is not applicable to the present circumstances, and nor are subclauses 12(1)(b) and (c) of the GIPA Act. Subclause 12(1)(d) of the GIPA Act requires the Tribunal to be satisfied of the following:

1. the information is contained in a record; and

2. the record is in the possession, or under the control, of an officer or member of staff of the agency; and

3. that possession or control is in his or her capacity as an officer or member of staff of the agency.

18. The Respondent submits a police officer’s mobile phone records are a record for the purposes of Schedule 4 clause 10 of the GIPA Act and may record certain details of a call that was made or received (for example, the time of a call made, the number called and duration of the call), the Respondent’s officer is in the possession or has control of their personal mobile phone record, but the Respondent’s officer’s possession or control of those records is in their personal capacity (it being a record of their personal mobile telephone), not in his or her capacity as an officer or member of staff of the agency.

19. The Respondent submitted that the scope of Schedule 4 clause 12(1)(d) of the GIPA Act had not been conclusively determined by the Tribunal, referring to Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 at [17] and the appeal in Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19. Whilst the Respondent provided authorities involving consideration of similar legislative provisions, such as Gordon v University of Sydney [2011] NSWADT 278, Re Hoser and Vicforia Police (1990) 4 VAR 259 and Re Holt and Education Queensland (1998) 4 QAR 310, these are of limited assistance as the applied legislative provisions and factual circumstances of each of those cases are clearly distinguishable from those relevant to these proceedings.

20. The NSW Police Force Handbook, version published 5 January 2017 (‘the Handbook’) which was in force at the relevant time, states at page 45:

“Commanders and Managers are responsible for all costs incurred through the use of mobile communication devices attached to their Command. Officers are not permitted to use NSWPF mobile communications devices for non-NSWPF business related activities (e.g. secondary employment), nor are they permitted to charge costs for use of private devices to a NSWPF Cost Centre. If an officer uses their own communication device, they do so at their own expense… Mobile communication devices should only be used where there is no other alternative and all usage should be as brief as possible.”

21. The Applicant submitted that the Handbook “allows Officers to use personal mobile telephones to perform police work”. The Respondent submitted that “whilst police officers may use their personal mobile phones in the course of their duties, the phone bills for these mobiles phones are held by the police officers entirely in their personal capacity… phone bills for personal mobile phones are never provided by an officer to the NSWPF and police officers never handle these bills in their capacity as an officer of the NSWPF”. On my reading of the relevant section of the Handbook, whilst I accept that the Handbook anticipates that there are occasions during which an officer may use their personal mobile phone in the course of their duties, for work related or non-work related purposes, the Handbook does not specifically allow or support the use of personal mobile phones by officers to perform their duties. This is reinforced by the statements that “If an officer uses their own communication device, they do so at their own expense” and “Mobile communication devices should only be used where there is no other alternative”. I therefore accept the Respondent’s submission.

22. The Applicant submitted that:

If the respondents interpretation of the police officers personal mobile phone records were preferred, it would mean that public officials could avoid public access requests by simply using personal equipment and using non work applications like cloud based email services to carry out their public service roles outside the grasp of GIPA.

23. I accept that this is a possibility, but it is not within the jurisdiction of this Tribunal to extend the application of legislation beyond the parameters of statutory interpretation for the purpose of addressing such policy or compliance issues. Whilst the GIPA Act’s objects express the intention of Parliament at s3(2) that “the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage… access to government information”, I don’t consider determination of the issue of whether an Agency holds information for the purpose of the GIPA Act to be a discretionary matter or decision. It is a factual finding based on a statutory provision, the interpretation and application of which is not discretionary.

24. I also agree with the Respondent’s submission that the test under clause 12(1)(d) of Schedule 4 is whether the record is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of an agency - not whether the record contains information which relates to the person’s official duties. Neither the Respondent, nor officers of the Respondent in their capacity as officers of the Respondent’s agency, had the records sought in their possession or control at the time of the request pursuant to s53(1) of the GIPA Act. The records sought are therefore not held by the Respondent pursuant to Schedule 4 Clause 12(1)(d) of the GIPA Act.

25. The Applicant submitted that “Constable Thompson and Constable Hinchen have an obligation to undertake reasonable searches including accessing records online or making a phone call to their mobile phone service provider to obtain the records.” I disagree. The GIPA Act at section 53(3) anticipates that records may be held by an agency electronically or in their archives at the time of a request, and requires reasonable searches to be undertaken of the agency’s records to retrieve those records. It does not provide for those searches to be extended outside the agency’s physical or electronic possession or control. There is no obligation under the GIPA Act for a police officer, or any officer or member of staff of an agency, to conduct inquiries and searches with external organisations and business such as their personal mobile phone service provider, for the purpose of complying with an agency’s obligations under the GIPA Act. The obligations under section 53(3) do not stretch that far.

26. Accordingly, the Respondent’s determination that it does not “hold” call records of NSW Police Force officers’ personal mobile telephones, and therefore the request for that information is refused pursuant to s58(1)(b) of the GIPA Act, is affirmed.

Orders

27. The reviewable decision of 11 July 2018, to the extent that it relates to the determination that the Respondent does not hold call records of NSW Police Force officers’ personal mobile telephones, and therefore the request for that information is refused pursuant to s58(1)(b) of the GIPA Act, is affirmed.

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

Registrar

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: 17 June 2019