Robinson v Commissioner of Police, NSW Police Force

[2014] NSWCATAD 67

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Robinson v Commissioner of Police, NSW Police Force [2014] NSWCATAD 67
Hearing dates:	On the papers
Decision date:	19 May 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Isenberg - Senior Member
Decision:	The decision under review is affirmed
Legislation Cited:	Government Information (Public Access) Act 2009
Cases Cited:	Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Cianfrano v Director General, Premier's Department [2006] NSWADT 137 Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 Commissioner of Police v Camilleri [2012] NSWADTAP 19 Flack v Commissioner of Police [2011] NSWADT 286 Leech v Sydney Water Corporation [2010] NSWADT 298 Hurst v Wagga Wagga City Council [2011] NSWADT 307
Category:	Principal judgment
Parties:	Arthur Robinson (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	A Robinson (in person Applicant) Commissioner of Police, NSW Police Force (Respondent)
File Number(s):	133308

reasons for decision

1. Arthur Robinson, the applicant, requested the respondent to provide access to information, pursuant to the Government Information (Public Access) Act 2009 ('GIPA Act'), as follows:

'Cood you sen me all wot the police have of me and cood you sen me all wot you have me befor'

1. Access was provided to information in relation to 4 Events in full, and 2 further Events which had personal information of other persons redacted ('the Redacted Events').

1. The applicant sought internal review, referring to:

26 June 2013 stat in 1985 wot are the police doing a wics hut on me. In 1996 the police stop me wer I weas walking home in 2000 the police came to see me

1. The Respondent provided a notice to the Applicant that he had not supplied sufficient information to determine the application and consequently, took no further action. The applicant seeks review by the Tribunal.

1. At the first planning meeting conducted by the Tribunal the respondent sought further information from the Applicant as to the scope of the application. The Applicant told the Tribunal that he sought documents that related to:

(a)   "witch hunt" that started some time in 1985

(b)   an incident in 1996 when he was "harassed by Sgt Smith while walking along Georges River Road Jannali"

(c)   correspondence between the Applicant and the former Commissioner Peter Ryan requesting that the Commissioner remove records arising from the "witch hunt" on or about 5 April 2000

(d)   an incident after 5 April 2000 when Police from Sutherland attended his home without notice and told him that they would not remove or delete a record from the police records as the police record reported what had occurred and that report would not harm him

1. As a result of the clarification a further document was located that fell within the scope of the application - a document which related to the culling of Information Report I 3838201 from the COPS system. This was provided to the applicant. A further document relating to the applicant's complaint to the Ombudsman was also provided to the applicant.

1. Information Report I 5126986 ('the Information Report') was also located. Access to the Information Report was refused on the basis that there is a conclusive presumption of overriding public interest against disclosure: Clause 7 schedule 1 of the GlPA Act.

ISSUES BEFORE THE TRIBUNAL ISSUES BEFORE THE TRIBUNAL

• Has all the information relevant to the application been located?
• Is there an overriding public interest against disclosure of information sought by the applicant in terms of s.13 of the GIPA Act?

EVIDENCE

1. The applicant, in his submissions to the Tribunal sought info about the Information Report. He also pressed for information about the 2000 visit by Police.

1. The respondent provided a statement by Senior Sgt Fam of the respondent's Information Access and Subpoena Unit. A statement was also provided by Sgt Kaine of the Respondent's Counter Terrorism and Special Tactics Command.

1. The Respondent also provided, on a confidential basis, the unredacted version of the Redacted Events.

CONSIDERATION

Has all the information relevant to the application been located?

1. SENSGT Fam wrote in his statement that with the benefit of the additional information provided by the Applicant at the Planning Meeting, staff at the Information Access and Subpoena Unit undertook a search of information held by the respondent. The search involved utilising resources that were reasonably available to it. As a result the search located documents that fell within the amended scope of the Application such as archival documents that recorded correspondence to and from the Police relating to the culling of Information Report I 3838201 from the COPS system. Another document was also located - the Information Report.

1. The task before the Tribunal, 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. There is some overlap in these 2 questions, because, it is fair to say, if the respondent has already searched extensively for material answering a GIPA application, then logically the likelihood of there being additional documents reduces with each ensuing search.

1. In summary, the respondent submitted that it has conducted reasonable searches for the information falling within the scope of the applicant's request.

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

1. Section 53 requires the agency to use "the most efficient means reasonably available to the agency" when searching for records. It is not required to undertake a search that would "require an unreasonable and substantial diversion of the agency's resources."

1. In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [65], the Tribunal held that it must be satisfied that an agency's determination is a fully responsive one; 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 summary, I do not consider there to be reasonable grounds to believe that there are outstanding documents. Further, although there was little evidence provided by the Respondent about the extent of the search, I am satisfied there was no evidence of further searches the respondent could reasonably undertake to attempt to locate any additional documents falling within the scope of the application.

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

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.

The Information Report

1. Sgt Kaine's evidence was that he had reviewed the Information Report. It had been created by the of and that evidence established that the Information Report was created by the Police's Counter Terrorism and Special Tactics Intelligence Unit, which is the predecessor of the current Counter Terrorism and Special Tactics Command. The document had been classified as protected and is not to be disclosed to anyone outside the Command, including other Police officers.

1. Clause 7 of Schedule 1 of the GIPA Act provides as follows:

7 Documents affecting law enforcement and public safety

It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents:

....

(b) a document created by the Counter Terrorism and Special Tactics Command of the NSW Police Force, the former Counter Terrorist Co-ordination Command of the NSW Police Force, the former Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence

...

1. Having regard to the evidence of Sgt Kaine I find that there is a conclusive presumption against providing access to this information exists with respect to the Information Report. This is a matter about which I have no discretion to require the disclosure.

The Redacted Events

1. Section 13 of the 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.

1. Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure.

1. The applicant did not indicate why he sought the information.

1. The respondent submitted, and I agree, that the following public interest considerations in favour of disclosure of the information are relevant to the information sought by the applicant:

• the statutory presumption in favour of the disclosure of government information;
• the general right of the public to have access to government information held by agencies; and
• the information is personal information of the person to whom it is to be disclosed

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

1. The respondent submitted that the following public interest consideration against disclosure is relevant:

• Disclosure of the information could reasonably be expected to reveal an individual's personal information: cl.3(a) of the Table

1. The term "personal information" means:

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. I have reviewed the Redacted Events and find each includes the personal information of other people that were named in each Event. I am satisfied that the provision of each Event without redaction would reveal to the Applicant the following personal information about other persons:

• In Event 38832023 - the date of birth and the address of the person referred to and observations regarding that person
• In Event 3860136 - the licence number and date of birth of the driver of the other vehicle named in the Event that relates to a motor vehicle collision.

1. The redacted information is personal information of the type generally only known by the person and disclosure of that information would reveal an individual's personal information for the purposes of the GIPA Act.

Balancing the public interest considerations

1. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the Act, paying due regard to the principles in s. 16 of the GIPA Act. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack v Commissioner of Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s. 5 GIPA Act.

1. The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council: at [70].

1. I consider that the general consideration in favour in s.12 should be accorded significant weight, consistent with the object of the GIPA Act. On the other hand, disclosure which could reveal personal information (cl.3(a) of the Table) should also be given significant weight.

1. The Tribunal may have regard to the personal factors set out in s.55(1) of the GIPA Act for the purposes of considering, the public interest considerations against disclosure in cl.3(a) of the Table.

(a)   the applicant's identity and relationship with any other person,

(b)   the applicant's motives for making the access application,

(c)   any other factors particular to the applicant.

1. The applicant provided no submission as to any of these considerations. The applicant sought to obtain access to information which appeared to relate to his interactions with Police, and it did not appear that the applicant was actually seeking the personal information in the redacted Events.

1. As I have found that the redacted Events contain personal information of third parties, I am satisfied that in this matter the public interest considerations against disclosure in the redacted Events outweighs the public interest in favour of the disclosure of the personal information that has been redacted.

1. I therefore find that the respondent has discharged its onus and I find that, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure.

DECISION

1. The decision under review 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: 19 May 2014