Svanda v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 50

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Svanda v Commissioner of Police, NSW Police Force [2018] NSWCATAD 50
Hearing dates:	On the papers
Date of orders:	01 March 2018
Decision date:	01 March 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	The respondent’s decision is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Government information – Application for review of implicit decision that respondent does not hold any information apart from that identified by the respondent – Whether the respondent holds further information – Where applicant conceded that respondent conducted reasonable searches for the information sought
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	McClymont v Department of Family and Community Services [2017] NSWCATAD 202 Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353
Category:	Principal judgment
Parties:	Pavel Svanda (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: S Janda (Applicant Agent) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/00337731

REASONS FOR DECISION

1. This was an application for review of an implicit decision that an agency did not hold any information responsive to an access application, other than that provided to the applicant.

2. The applicant conceded that the agency had made reasonable searches for the information sought and did not give the Tribunal any reason to consider that the agency holds any responsive information not provided to him.

3. In these circumstances, I have decided to affirm the agency’s decision.

Background

4. The applicant made an access application under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”) to the Commissioner of Police (“Commissioner”) for the following information:

“1. On 4 June 2014 I was arrested in or close to Bega (NSW). Solicitor Thompson attended the Police Station there. Please provide documents recording the name of the telephone Czech interpreter assisting the Police on that day.

2. Please provide documents showing the date/s when I was charged with each with each criminal offence for which I was sentenced on 18 September 2015 and the name/s of the police officer/s who informed me about the charges.

3. Please provide documents showing the date/s when I was informed about the charges mentioned in 2 above in the Czech language that I understand and the name/s of the person/s performing the interpreting duties when I was so advised.

4. Please provide a copy of my letter in the Czech language I sent from prison to the victim Ms Ivana Slegrova in early July 2014 which formed the grounds for charge and sentencing on 3 December 2015 for “contravene/prohibition in AVO.”

5. The Commissioner decided to provide access to the information in full.

6. The applicant applied to the Tribunal for a review of the Commissioner’s decision, stating that the Commissioner had failed to provide the information sought in two of the four questions asked, being questions 2 and 3 above.

7. Following the applicant’s application to the Tribunal, the Commissioner provided the applicant with further information.

Decision on the papers

8. A different member of the Tribunal determined, by consent, at a case conference or directions hearing, that this matter was to be determined on the papers. Like that member, I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other documents or material lodged with or provided to the Tribunal: Civil and Administrative Tribunal Act 2013 (NSW), s 50(2).

Tribunal’s jurisdiction

9. The applicant applied to the Tribunal for review of the Commissioner’s decision within the statutory time frame (GIPA Act, s 101).

10. The parties appear to be in agreement that this application is properly construed as an application for review of the implicit decision that the Commissioner does not hold any information other than that provided to the applicant. A decision that an agency does not hold information is a reviewable decision (GIPA Act, s 80(e)).

11. I have previously considered whether the Tribunal may review such an implicit decision in McClymont v Department of Family and Community Services [2017] NSWCATAD 202 at [27]-[30] and Robinson v Transport for NSW; Robinson v Roads and Maritime Services [2017] NSWCATAD 353 at [24]-[26]. The Commissioner did not submit that the Tribunal does not have jurisdiction to conduct a review of an implicit decision of an agency and I am prepared to accept, in the absence of submissions to the contrary, that it does.

12. The applicant is a “person aggrieved” by the Commissioner’s implicit decision and the Tribunal has jurisdiction to review that decision (GIPA Act, s 100; Administrative Decisions Review Act 1997 (NSW), ss 7 and 9; Civil and Administrative Tribunal Act, ss 28 and 30).

Consideration

13. The question of whether an agency has conducted reasonable searches for government information is relevant to, although not conclusive of, the Tribunal’s determination of whether the correct and preferable decision is that the agency does not hold information (McClymont v Department of Family and Community Services [2017] NSWCATAD 202 at [31]).

14. The Commissioner was required, by s 53(3) of the GIPA Act, to 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 Commissioner has provided the Tribunal with evidence of the searches which were conducted for the information. The applicant accepts that reasonable searches were undertaken.

15. I find that reasonable searches were undertaken on behalf of the Commissioner to find the information the subject of the applicant’s application.

16. The applicant did not provide any submissions or evidence supporting the proposition that the Commissioner holds information responsive to his access application, other than that the Commissioner has identified and provided to him.

17. The Tribunal is satisfied, on the basis of the evidence filed by the Commissioner that the correct and preferable decision is that the Commissioner does not hold any government information responsive to the applicant’s access application, apart from the information already identified and provided to the applicant (Administrative Decisions Review Act, s 63(1)).

18. As indicated earlier in these reasons, some information was provided to the applicant after he commenced these proceedings. It is the Commissioner’s position that this information was outside the scope of the access application and it is the applicant’s position that it was not. The information has not been provided to the Tribunal so I am unable to form a view about this. However, I am required to make the correct and preferable decision as at the present time. I am satisfied that the Commissioner does not now hold any responsive information which has not been provided to the applicant. Accordingly, the appropriate order is to affirm the Commissioner’s decision.

Orders

19. For these reasons, I make the following order:

1. The respondent’s decision 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

Amendments

06 April 2018 - Applicant agent included on coversheet

Decision last updated: 06 April 2018