Ugur v Commissioner of Police

[2022] NSWCATAD 396

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ugur v Commissioner of Police [2022] NSWCATAD 396

Hearing dates:

31 March 2022

Date of orders:

15 December 2022

Decision date:

15 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

(1) The agency’s decision that it does not hold further information within the scope of the applicant’s access request is affirmed.

(2) The agency’s decision that there is a conclusive overriding public interest against disclosure of the duty book entries of its Counter Terrorism and Special Tactics Command is affirmed.

(3) The agency’s decision that there is an overriding public interest against the disclosure of the personal information of another person contained in police notebook no F258734 is affirmed

Catchwords:

ADMINISTRATIVE LAW – administrative review of a reviewable decision – decision that information is not held by the agency – conclusive overriding public interest against disclosure of a document created by the Counter Terrorism and Special Tactics Command - overriding public interest against disclosure of personal information

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) – ss 9, 55

Government Information (Public Access) Act 2009 (NSW) – ss 80,100, clause 7, Schedule 1, clause 1, Schedule 4

Government Sector Employment Act 2013 (NSW) – s 3

Cases Cited:

Klaric v Commissioner of Police [2020] NSWCATAP 153

Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286

Ugur v Commissioner of Police [2020] NSWCATAD 292

Ugur v Commissioner for Police [2021] NSWCATAP 298

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Haci Emin Orhan Ugur (Applicant)
Commissioner of Police (Respondent)

Representation:

H E O Ugur (Self Represented)
Norton Rose Fulbright (Respondent)

File Number(s):

2020/00166818

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Haci Emin Orhan Ugur (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review of a decision made by the delegate of the Commissioner for Police (the agency) on 16 November 2021 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act, the Act) that it did not hold any further government information within the scope of the applicant’s access request. By the same decision, the agency refused to provide access to copies of duty book entries created by its Counter Terrorism and Special Tactics Command. It also partially refused access to an extract from a police notebook concerning the applicant on the basis that there is an overriding public interest consideration against its disclosure, which is that it is personal information of another person. I have dealt with this application for administrative review on the basis that those decisions are also challenged by the applicant.

2. For reasons set out following, the Tribunal has affirmed the agency’s decision that it does not hold any further information that is responsive to the applicant’s access request as the correct and preferable decision. It is satisfied that the agency has now carried out reasonable, indeed exhaustive, searches for information that falls within the scope of the applicant’s access request and that it has identified the information found to the applicant. The Tribunal has also affirmed the agency’s decision to refuse access to the duty book entries of its Counter Terrorism and Special Tactics Command on the basis that there is a conclusive overriding public interest against their disclosure. Additionally, the agency’s decision to partially refuse access to information contained in a Police notebook F258734 has been affirmed on the basis that there is an overriding public interest against the disclosure of the redacted information, it being personal information of another person.

Background

3. This administrative review application was originally heard and determined by the Tribunal, differently constituted, on 2 December 2020: Ugur v Commissioner of Police [2020] NSWCATAD 292. That decision was the subject of a partially successful appeal which was determined in a decision and reasons published on 5 October 2021: Ugur v Commissioner for Police [2021] NSWCATAP 298.

4. In its decision, the Appeal Panel set aside the first instance decision of the Tribunal affirming the agency’s decision under s 58(1)(b) that information sought by the applicant was not held by the agency. It remitted the administrative review application insofar as it related to this issue to the Administrative and Equal Opportunity Division for redetermination by a differently constituted Tribunal.

5. The first instance Tribunal had also affirmed a decision of the agency to refuse access to certain information that fell within the scope of the applicant’s access request on the basis that there was an overriding public interest against its disclosure. That decision was subject to unsuccessful challenge by the applicant in the Appeal. The agency’s decision in relation to that material (as it stood in December 2020) is not remitted for reconsideration.

6. Additionally to remitting the administrative review to the Tribunal for redetermination, the Appeal Panel also remitted the agency’s s 58(1)(b) decision to the agency pursuant to s 65 of the ADR Act for reconsideration prior to redetermination of the administrative review by the Tribunal. It directed the agency to either affirm the decision, vary the decision, or set it aside and make a new decision in accordance with s 65(2), and to provide reasons for its decision to the Tribunal and the applicant (appellant) within 42 days of its orders. It directed the applicant to notify the Tribunal and the agency if he wished to proceed with his application for administrative review of the agency’s decision (as remade) within 21 days of his receipt of that decision.

7. The agency published a fresh decision in relation to the applicant’s access application on 16 November 2021. By email to the Divisional Registrar dated 2 December 2021 the applicant advised that he wished to proceed with his application for administrative review of this decision.

8. The remitted application was listed before the Tribunal, differently constituted, for a Case Conference on 15 December 2021. At that case conference, directions were made for the filing and exchange of the documentary materials that the parties intended to rely upon the final hearing and the application was adjourned for final hearing.

Material considered

9. I have considered the following material:

Applicant

1. Affidavit of H E Oran Ugur affirmed on 25 March 2022 and its annexures A to D filed 28 March 2022,

2. Submissions filed 28 March 2022,

3. Submissions filed 24 February 2022,

4. Affidavit of H E Orhan Ugur affirmed 23 February 2022 and its Annexures A to S filed 24 February 2022.

Respondent

1. Notice of Decision (Remitted) dated 16 November 2021 filed 28 January 2022.

The hearing

10. The hearing was conducted by AVL in a VMR in accordance with NCAT’s COVID-19 Revised Hearing Procedure as it was in force at that time. Mr Ugur attended the hearing and gave oral evidence under affirmation. Ms H Simms, Solicitor, attended the hearing on behalf of the agency. The agency called as a witness Mr Ian Steptoe who is the delegate of the agency that made the remitted decision. He gave oral evidence under affirmation. The parties had the opportunity to present their respective cases, to ask Mr Ugur and Mr Steptoe questions, and to make final submissions to the Tribunal.

The reviewable decision

The access request

11. By a document lodged with the agency on 24 December 2019 the applicant sought access to information held by the agency, which he described as follows:

Copies of all information (all correspondence and documents, including emails, in any format) contain personal information held in relation to Haci Emin Orhan Ugur, [date birth] (the Applicant) regarding any incidents and the police action arising from such incidents including, but not limited to:

1.   All entries on the Computerised Operational Policing System (COPS) relating to Haci Orhan Ugur [date of birth].

2.   All entries on the New South Wales Police Force (NSW Police) Suspect Targeting Management Plan (STMP), or an organised crime suspect relating to Haci Emin Orhan Ugur [date of birth].

3   A copy of all documents or records or files or communications relating to Haci Emin Orhan Ugur [date of birth] including (without limitation) any files and records involving legal advice or consent, compulsory medical treatment and/or medical procedure, supervision, and/or surveillance, management, detention, or other forms of control of Mr Ugur.

4.   ‘Document’ includes, without limitation, originals and copies of all correspondence, letters, memoranda, minutes, written and electronic communications. Emails, SMS messages, MMS messages, Chat messages, diary notes, forms, internal memoranda, telephone memoranda, reports, file notes, agreements, accounts, receipts, invoices, computer discs, computer and video and master tapes and any other form of digital or electronic storage of information.

5.   In additions:

Sent or received until today 22 December 2019 inclusive.

From or to any of the following agencies or people:

a.   Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police department and NSW Health and NSW Ambulance and NSW Ombudsman Office and NSW Housing (Bridge Housing) and NSW Office of Public Guardian and NSW Legal Aid and Attorney General’s Department of NSW and Department of Home Affairs (including AFP), Commonwealth Ombudsman Office.

b.   Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police department and Sydney Turkish Consulate General (including legal adviser [name], solicitor [name] relating to Haci Emin Orhan Ugur [date of birth].

c.   Any and all records regarding cooperation, agreements, memoranda and statements and communications between the NSW Police Department and the Turkish Police or any other overseas agency relating to Haci Emin Orhan Ugur [date of birth]

d.   Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police department and [name] (and any doctors and lawyers and medical centres) relating to Haci Emin Orhan Ugur [date of birth]

e.   Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police Officer Murat Tuncer and Sydney Turkish Consulate General, [names] or any other third person relating to Haci Emin Orhan Ugur [date of birth]

12. An original decision in relation to this access request was made and communicated to the applicant by the agency on 13 January 2020. The applicant sought an internal review of that decision by application made on 31 January 2020. In that internal review application, the applicant narrowed the date range for parts 2 to 5 of his access application to 1 January 2008 up to “now” which the agency took to mean the date his original access request was lodged (24 December 2020).

The decision following remittal

13. The agency’s decision in relation to the remitted access application was made by Mr Ian Steptoe, Senior Advisory Officer, with the agency’s InfoLink. As noted above, Mr Steptoe also gave oral evidence at the hearing.

14. Mr Steptoe identified 17 documents comprising 94 pages which were additional to the documents that had been identified as falling within the scope of the applicant’s access request in previous decisions of the agency. These are set out in a Schedule attached to his decision. In relation to those documents, on behalf of the agency Mr Steptoe decided:

1. pursuant to s 58(1)(a), to provide access to items listed at numbers 1, 2, 4 to 15, and 17 of the Schedule in full, and item 3 in part,

2. pursuant to s 58(1)(d), to refuse to provide access to the item listed at number 16, being duty book entries of officers of the Counter Terrorism and Special Tactics Command, on the basis that there is a conclusive overriding public interest against disclosure of this information,

3. pursuant to s 58(1)(d), to refuse to provide access to provide access to the personal information of another person in item 3, being an entry recorded in Police Notebook F258734 on the basis that there is an overriding public interest consideration against the disclosure of this information, and

4. pursuant to s 58(1)(b), that no information within the scope of item 2 of the applicant’s access application is held by the agency.

15. Although not explicitly stated by Mr Steptoe in his Notice of Decision, it must also be inferred from this decision that he reached the conclusion that the agency also did not hold any further information in any other category of the applicant’s access request to that which had been identified in his decision and in earlier decisions of the agency.

16. In section 2 of his decision Mr Steptoe outlines the searches he undertook to ascertain the information held by the agency that is within the scope of the applicant’s access request:

2.   Searches

Under the GIPA Act, NSWPF must conduct reasonable searches to locate the government information you seek, which is itemised in five categories in accordance with your original access application (as revised by your internal review application). I have conducted additional searches to locate information, but have not repeated searches previously conducted to respond to your application.

1) Incidents recorded on the Computerised Operational Policing System (COPS) database – no time limit

Incidents are recorded in an Event Report. An Event Report may record more than one incident, if they are related.

Whether an Event Report is created is a matter for the officer concerned. Not every interaction an officer has will necessitate the creation of an Event Report.

Event Reports can be “linked” to a person in several ways, depending on their involvement in the incident eg as “person of interest”, “victim”, “witness” etc.

I have printed a list of all COPS Events Reports linked to you. I searched using your personal details as provided in the access application – name and date of birth. No date range was applied.

The list is attached to this decision. It reveals that there are 18 Event Reports linked to you on COPS. This is one more than had been located previously.

The explanation for this is that one Event Report, E 73683913 was created after the date of your access application. In the interests of transparency, I have decided to release the narrative of that Event Report. You will note that it was created solely to facilitate the electronic filing of documents related to Event Report E10141015. The documents were located as a result of searches conducted in connection with your access application.

Otherwise, the unique identifying numbers of the Event Reports listed in the report are identical to the numbers of those subject to the decision of 13 January 2020.

I am satisfied that the agency does not hold any additional Event Reports linked to you, other than those listed in the Schedule to the decision of 13 January 2020.

2) Suspect Targeting Management Plan (STMP), or organised crime suspect – January 2008 to 22 December 2019

The NSW Police Force does not hold a single record called “Suspect Target Management Plan”

I note that STMP is shorthand for a policing program that seeks to prevent future offending by targeting repeat offenders and people police believe are likely to commit future crime. You are not a repeat offender. There is no reason why you would be considered for inclusion on a STMP. If you were the subject of a STMP there would be references to this in COPS reports.

I have searched the NSW Police Force intranet using the term “organised crime suspect” with no result. I also searched the electronic Records Management System (RMS) using the same search terms and with the same result. No date range was applied to either search.

I have decided, under s 58(1)(b) of the GIPA Act, that the information requested in point 2 of your application is not held by the agency.

3) Documents relating you, including legal advice or consent, compulsory medical treatment and/or medical procedure, supervision, and/or surveillance, management, detention or other forms of control of [you]: January 2008 to 22 December 2019

Police do not hold information relating to a person on a single file. Documents held by NSW Police Force relating to an individual might be located in several places – if it relates to a particular incident, investigation or charge, then it would be retained as a case file item linked to a COPS Event Report and saved on an electronic data base called “View IMS”, a paper case file, or for major investigations on an electronic investigation management database called “e@gle:i” I only mention e@gle:i for completeness – you have never been subject to a major investigation and if you had been the subject of a major investigation there would be a reference to it in COPS. Nevertheless, I have searched e@glei using your name in a key word search and can find no investigations relating to you.

Documents not linked to a particular incident, such as correspondence, are saved to the electronic Records Management System (RMS).

It is possible that a document could be held in more than one of these systems.

NSW Police Force does have other systems on which data is stored, such as the Exhibits Forensic Information Miscellaneous Property system (EFIMS), the Integrated Licensing System, Missing Persons database etc, but they would not contain information within this part of your request, as these systems are not used to store information related to legal advice, compulsory medical treatment or procedures, supervision or surveillance etc.

I have searched View IMS using the COPS Event Report numbers for the four Event Reports that post-date 1 January 2008. No documents were located that fell within the scope of this part of your access application, ie there were no documents that referenced legal advise or consent, compulsory medical treatment and/or medical procedure, supervision and/or surveillance, management, detention or other forms of control of [you].

I also conducted a free text search of RMS using your name as a “key word”. I did not use any other key words or date limit. This search includes files which are held by the Office of General Counsel, NSW Police Force, which is responsible for legal advice.

My searches of RMS located a file containing a subpoena issued in the Supreme Court of NSW proceedings brought by you against the Attorney General of NSW. The case number was 2018/89881 and the subpoena was issued by the Crown Solicitor on behalf of the Attorney General. I consider the subpoena outside the scope of your information request. As you are named as the plaintiff in the proceedings and the subpoena sought open access orders, I assume you have a copy of both the subpoena and any documents produced in accordance with it. However, in the interests of transparency, I have decided to release the subpoena.

A notebook entry referring to you from Police Notebook no. F258734 issued to SC Gregory J Kelly corresponding to a COPS Event was also located.

Point 4 of the application is a definition of the word “document” and accordingly I have not conduced any additional searches for this item.

5 (a)-(e) - Other correspondence passing between police and named agencies or people, and which relates to you – January 2008 to 22 December 2019

a) Correspondence with Ombudsman

I note that this item is limited to “correspondence” between NSW Police and a number of named agencies.

The Police Compliance Branch of the NSW Ombudsman oversighted the handling of police complaints until the establishment of the Law Enforcement Conduct Commission (LECC) in 2017.

Correspondence with the Ombudsman/LECC is routed through the Professional Standards Command (PSC).

I asked the PSC to confirm whether it held any complaint files created since 1 January 2008. It searched RMS and identified three files from 2011 and 2012 with you as the complainant. All three files appear to relate to complaints made by you to the Ombudsman which were referred to NSW Police to deal with.

I have asked PSC to retrieve and forward correspondence with the Ombudsman and other third parties in relation to the 2011 and 2012 complaints. The information provided is described in the attached schedule.

b) – e)

The searches conducted in response to item 3 of your request would have located information falling within this part of your request because any existing records would be stored on COPS, View IMS or RMS, which have all been searched using your name as a key word.

Further Documents related to Information Report I 87426894

The agency decision dated 15 July 2020 released COPS Information Report I 187426894 dated 29 July 2011.

I note that report was created by the Engagement and Hate Crime Unit (ECHU) of the Counter Terrorism and Special Tactics Command (CT&STC).

Clause 7 of Schedule 1 to the GIPA Act states that it is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in ... (b) a document created by the … Counter Terrorism and Special Tactics Command of the NSW Police Force …

Accordingly, I would not have released the report to you, but acknowledge the agency cannot take it back.

From the face of the report, it is clear that other information relating to it may be held, in particular communications with the Turkish Consulate. I note however that the source of the report is recorded s “General Public” and it is unclear whether any communication with the Turkish Consulate was recorded in writing. If it did exist, it would be on RMS.

I note that my search of RMS conducted in connection with point 3 would of located any written correspondence relating to you as it was unlimited in time.

I asked the CT&STC to search for and forward any documents it held relating to this incident, including any correspondence and the notebooks of the two officers named in the Information Report. Both of these officers were assigned to the CT&STC at the relevant time.

It confirmed that these officers were not issued with notebooks during the dates specified in your request, but have provided extracts from those officers’ Duty Books within the dates specified in your request.

It also conducted a search of the CT&STC database for correspondence relating to you and the Turkish Consulate with a negative result and confirmed that no physical records pertaining to your request are held in the EHCU from that time period.

I do not interpret the references in the report to its dissemination to the Australian Crime Commission (ACC), now Australian Criminal Intelligence Commission (ACIC)) and the Auburn Police Area Command (previously Flemington Local Area Command) (FLAC) as meaning further information is held relating to that. Auburn PAC has already conducted a search of their records in response to your access application and copies of documents located by Auburn PAC were disclosed to you.

All COPS Information Reports are disseminated automatically (via COPS) to the ACC (now ACIC) under information sharing arrangements. The Information Report was disseminated to FLAC because that was the Command responsible for the area in which you lived.

The Information Report was created for “Information only” and no response invited.

Contentions of the parties

The agency

17. The agency contends that its decisions of 16 November 2021 are the correct and preferable decisions. It contends that it has now carried out exhaustive searches for government information that falls within the scope of the applicant’s access request. It contends that there are no reasonable grounds to believe that it holds any further information that falls within the scope of the access request to that which it has identified. Of the additional material identified during reconsideration of the access application, the agency contends that there is a conclusive overriding public interest against the disclosure of the duty book entries Counter Terrorism and Special Tactics Command pursuant to clause 7 of Schedule 1 of the Act. It also contends that there is an overriding public interest against disclosure of the redacted personal information in Police Notebook F258734 pursuant to clause 3(a) of the Table to s 14.

The applicant

18. The applicant has a fixed belief that he is the subject of constant surveillance and investigation by NSW Police, other security services, and the Turkish Government (or at least its Australian Consulate). For this, and other, reasons he remains convinced that the agency holds extensive additional information about him that is within the scope of his access request. He believes that this information is being deliberately concealed from him. He submits that he is entitled to know what this information is so that he can defend himself against terrorism and other charges he believes NSW Police and other security services intend to lay against him, and extradition proceedings which he also believes are looming. He believes that his surveillance, the constant prospect of criminal charges being laid against him, the failure of authorities to lay these charges, and his looming extradition are an abuse of his human rights.

19. Specifically, the applicant contends that the agency has failed to identify and provide him with access to information related to its contact with the Turkish Consulate in 2011. This includes information he contends must have been created by Constable Murat Tuncer who left a card on his door and in his mailbox on 26 July 2011. The applicant also contends that he had encounters with NSW Police Officers on 31 August 2002 and 25 July 2012 and on other dates. He complains that the agency has failed to produce the information it holds concerning those interactions.

20. Although not stated in these terms, it is to be inferred from the applicant’s case that he contends that the Tribunal ought to set-aside the agency’s decisions. In so far as this concerns items 3 and 16 it is to be inferred that the applicant contends the Tribunal ought to determine that he be provided with access to these documents without redaction. With respect to the agency’s actual and implied decision that it does not hold any further information that falls within the scope of his access request it is to be inferred that the applicant contends the Tribunal ought to remit his access application to the agency for redetermination with specific directions as to how further searches are to be conducted to locate the information he believes to be in existence.

Jurisdiction

21. By operation of section 9 of the ADR Act, section 100 of the GIPA Act confers jurisdiction on the Tribunal to conduct administrative review under the ADR Act of “reviewable decisions” made by “an agency” as these are identified under section 80 of the GIPA Act. A decision to refuse to provide government information and that government information is not held by the agency are reviewable decisions: section 80(d) and (e). In this respect there is no issue that the agency is “an agency” for the purposes of the GIPA Act, it being a “public service agency” within the meaning of section 4(1)(a) and Schedule 4(1) of the GIPA Act, being a “public service agency” within the meaning of s 3 of the Government Sector Employment Act 2013.

Applicable law

The Tribunal’s role in an administrative review

22. In determining an application for administrative review under the ADR Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: s 63(1). For this purpose, the Tribunal may exercise all the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: s 63(2). The Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: s 63(3).

23. A “correct” decision is one that is rightly made, while preferable is apt to refer to a decision involving discretionary considerations: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 at [140] per Kiefel J.

The GIPA legislative scheme

24. The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in s 3 which states:

(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 release of government information by agencies, and

(b)    by 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.

25. This object is amplified with a statutory command, contained in section 3(2), which provides:

(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 possible cost, access to government information.

26. Part 2 of the GIPA Act establishes general principles for open government information. Division 1 of that Part establishes the ways of accessing government information. This includes, in s 5, a presumption in favour of disclosure of government information:

5   Presumption in favour of disclosure of Government Information

There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

27. Section 9 in Division 1 deals with access applications for government information. It provides, in s 9(1):

9   Access applications

(1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4(Access applications) unless there is an overriding public interest against disclosure of the information.

…

28. Part 2, Division 2, of the GIPA Act concerns the public interest considerations that are associated with access to government information. Section 12 in that Division provides:

12   Public interest considerations in favour of disclosure

(1)   There is a general public interest in favour of the disclosure of government information.

(2)   Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note:   The following are examples of public interest considerations in favour of disclosure of information –

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

…

(d)   The information is personal information of the person to whom it is to be disclosed.

(e)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.

…

29. Section 13 contains the “public interest test” for determining if there is an overriding public interest against disclosure. It provides:

13   Public interest test

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.

30. Section 14 contains public interest considerations against disclosure. It provides:

14   Public interest considerations against disclosure

(1)   It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in schedule 1.

(2)   The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purposes of determining whether there is an overriding public interest against disclosure of government information.

31. Schedule 1 of the Act sets out where it is to be conclusively presumed for the purposes of s 14(1) that there is an overriding public interest against disclosure of government information. This includes in clause 7, relevantly:

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 ….

32. The Table 14(2) consideration that the agency considers are relevant in this administrative review is:

…

3   Individual rights, judicial processes and natural justice: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects -

(a)   reveal an individual’s personal information,

…

33. In Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19 at [24]-[25], the Appeal Panel explained the approach to determining whether there is an overriding public interest against disclosure as a two-step process. The agency case for refusal must rely on the conclusive presumption contained in s 14(1) or one or more of the s 14 Table considerations. With respect to the Table considerations, the Tribunal’s task is to weigh that case against the factors favouring disclosure mindful of the injunctions that appear in both ss 12 and 15.

34. Section 15 sets out the principles that apply to the determination of the public interest. It provides:

15   Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles –

(a)   Agencies must exercise their functions so as to promote the object of this Act.

(b)   Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)   The fact that disclosure of information might cause embarrassment to, or loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)   The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)   In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

35. Part 4, Division 3 of the Act sets out the process according to which an agency is to deal with an access application. Section 55 in that Division provides that in determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take personal factors related to the application into account. It provides:

55    Consideration of personal factors of application

(1)   In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the “personal factors of the application”) into account as provided by this section -

(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.

(2)   The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3)   The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.

(4)   The applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

…

(6)   An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

…   

36. Part 4, Division 3 of the GIPA Act sets out the process for dealing with access applications. Section 53 of that Part and Division concerns the searches that are to be carried out by an agency in response to an access application. It 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)   The agency must undertake reasonable searches as may be necessary to find any 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 back up 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.

37. Part 4, Division 4 sets out how access applications are to be decided. Section 58 relevantly provides:

58.   How applications are decided

(1)   An agency decides an access application for government information by:

…

(c)   deciding that the information is not held by the agency,

(d)   deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, …

38. In Klaric v Commissioner for Police [2020] NSWCATAP 153 an Appeal Panel of the Tribunal considered the extent of the Tribunal’s power to review an agency decision pursuant to s 58(1)(b) that it does not hold government information, stating at [33]:

33.   The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has the power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search.

39. The Appeal Panel in Wojceichowska v Commissioner of Police [2020] NSWCATAP 173 concurred with that statement, but added at [41]:

41. … Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an “information is not held” decision is the “correct and preferable decision”. …

stating at [42] to [44]:

42. The role of the Tribunal in reviewing an “information not held” decision (ss 58(1)(b), 80(e)) is to decide what the correct and preferable decision is having regard to the material then before it”: s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The “burden of establishing that the decision is justified lies with the agency”: s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.

43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “such reasonable searches as may be necessary to find any government information applied for that was held by the agency when the application was received”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency. Other relevant factual issues may include whether any search information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.

44.   In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

(1) identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);

(2)   determine whether the agency has proved any relevant factual issues on the balance of probabilities;

(3)   consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

(4)   applying those findings, decide what the correct or preferable decision is;

(5) affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.

40. Section 105(1) of the GIPA Act provides that in any administrative review conducted by the Tribunal under Part 5, Division 4 of the Act concerning a decision made by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by section 105. None of those exceptions are relevant in this case.

Consideration

The duty book entries of officers of the Counter Terrorism and Special Tactics Command

41. I have examined the documents contained in the confidential sealed envelope the agency provided to the Tribunal. I am satisfied that these documents are duty book entries of officers of the Counter Terrorism and Special Tactics Command of the NSW Police Force. It must follow from this that it is to be conclusively presumed pursuant to s 14(1) and Schedule 1, clause 7 of the GIPA Act that there is an overriding public interest against the disclosure of this information. The agency’s decision to refuse access to this information is therefore the correct and preferrable decision. It is affirmed on this administrative review.

The police notebook redaction

42. The agency contends that the disclosure of the name of another person which has been redacted from Police Notebook F258734 would reasonably be expected to have the effect of revealing an individual’s personal information. This is an overriding public interest consideration against disclosure pursuant to clause 3(a) of the Table to s 14.

43. The term “personal information” is defined is clause 4(1) of Schedule 4 of the GIPA Act, relevantly, as follows:

4   Personal information

(1)   In this Act,

“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.

…

44. The word “reveal” is defined in clause 1 of Schedule 4 to mean “to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).”

45. I have examined the non-redacted version of the Police Notebook information in the confidential sealed envelope the agency provided to the Tribunal. I am satisfied that the information that has been redacted is personal information of another person, being their name. That would obviously permit that person’s identity to be ascertained.

46. There is no evidence in any of the material before me that this person’s name has already been publicly disclosed in relation to the contents of that Notebook entry. It follows from this that disclosure of the Notebook entry without redaction would reveal that person’s personal information.

47. I give significant weight to the general public interest in the disclosure of government information (s 12(1)). Apart from this consideration, on the material before me, I do not ascertain any specific additional public interest in the disclosure of this person’s name.

48. Against that, there is an overriding public interest against the disclosure of a person’s personal information. I note in this respect that there is no evidence that the person concerned has been consulted about the potential release of their name and has consented to it.

49. There are personal factors of the application that are relevant considerations in the application of the public interest test in relation to this issue. The applicant has, with respect, fixed persecutory beliefs about NSW Police. He is highly motivated to discover what information NSW Police have in relation to him and who provided it to them. In these circumstances I am satisfied that there is an unacceptable risk that if access to the name of the person referred to in the police notebook made available to the applicant, he would attempt to contact that person. Pursuant to s 55(3), I consider this a personal factor of the application against access to this person’s name being provided to the applicant.

50. Weighing these considerations in the balance, I am satisfied that the public interest considerations in favour of disclosure of the person’s name are outweighed by those against it. It would constitute an unreasonable interference with that individual person’s rights (being their privacy), and potentially expose them to unwanted contact from the applicant. The agency’s decision not to provide access to this information was therefore correct and preferable. It is affirmed in this administrative review.

Decision that information is not held

51. As I have set out above, in his reconsideration of the remitted decision, Mr Steptoe decided that the agency did not hold information within the scope of item 2 of the applicant’s access request. He also impliedly determined that the agency did not hold any further information to that which had been identified in the remitted decision and in earlier decisions by the agency. It thus falls to the agency to establish pursuant to s 105 of the GIPA Act that it has carried out searches for government information within the scope of the access request in accordance with the requirements of s 53.

52. In this respect it is important to bear in mind that s 53 of the Act imposes a standard of “reasonableness” in relation to the searches for information required to be undertaken by an agency, rather than any absolute or strict standard. Such searches must therefore be “logical”, “sensible”, “appropriate”, and “fair” but are not required to be “extreme” or “excessive” (to illustrate using synonyms and antonyms). The reasonableness standard is an objective one. It is what a fair-minded person possessing reasonable knowledge of the agency’s obligations and the circumstances of the case would consider reasonable. It is not the standard of an obsessive, mistrustful, perseverative or belligerent observer.

53. In his remitted decision, Mr Steptoe explains in detail the methodology of his searches.

54. With respect to item 1 (the COPS database) no date range was applied to the search. The search terms used were the applicant’s name and date of birth. No other filter or limitation was applied. I am satisfied that those search terms without any date parameter discharged the agency’s obligation to undertake a reasonable search for information falling within the scope of item 1 of the access request.

55. The only additional record identified by the agency in its reconsideration of the access request was a record created after that request was made (which was released to the applicant by the remitted decision). Other than that, the further searches undertaken confirmed the documents held by the agency as these were identified to the applicant in the schedule to the agency’s 13 January 2020 decision.

56. The applicant is convinced that there must be further information about him on the COPS database to that which has been identified by the agency. He contends that this is obvious from the fact that he had interactions with NSW Police Officers on specified dates, but no information has been identified by the agency in relation to those interactions. I am satisfied that the agency has discharged its’ onus of explaining why that is the case. Not every interaction between NSW Police and a member of the public results in an Event Report that is recorded on COPS. NSW Police have discretion in this respect. The applicant has not cited any Event Number in relation to which information has not been identified by the agency.

57. With respect to item 2 of the access request (the STMP/organised crime suspect information), in addition to the COPS database search, Mr Steptoe searched the NSW Police Intranet and the agency’s electronic Records Management System using the applicant’s name and date of birth in connection with the search term “organised crime suspect”. No date range was applied to these searches. Leaving aside what is stated above in relation to the COPS search outcome, no records were identified.

58. The search criteria used by the agency in relation to item 2 arise directly from the access request. The information systems searched, particularly the COPS system which is the ‘source’ record for the STMP program are, objectively, the appropriate information systems for interrogation. The applicant did not suggest in his written or oral submissions that the search terms used by the agency were not appropriate or that they were insufficient. He did not suggest that there were any other categories of records that ought to have been searched but weren’t.

59. The applicant’s belief that there must be records held about him in relation to the STMP and organised crime is consequential of his belief that he is under continuous investigation and surveillance by NSW Police and other authorities. However, there is no evidence before me that would indicate that this is the case. In his remitted decision, and in his oral evidence, Mr Steptoe explained that the STMP is a policing program that targets repeat offenders. He explained that the applicant is not a repeat offender and that there is therefore no reason why there would be information about him in STMP and related data systems. That evidence is objectively logical.

60. With respect to item 3 (compulsory medical treatment etc), in the remitted decision and in his oral evidence Mr Steptoe explains that he searched the COPS database, View IMS, the e@gle:i data base, and the RMS system using the applicant’s name as a key word. The RMS search was a free text search that did not include any other key words or date limit. View IMS was also searched using the four COPS Event Numbers that postdate 1 January 2008. He explains that the EFIMS, the Integrated Licensing System and Missing Persons databases were not searched because those databases are not used to hold information that falls within the scope of item 3 of the applicant’s access request.

61. Again, the applicant did not suggest in his written or oral submissions with respect to item 3 that the search terms used by the agency were not appropriate or that they were insufficient. He did not suggest that there were any other categories of records that ought to have been searched but weren’t. His position is simply one of disbelief that the agency does not hold extensive information about him and a belief that this information is being deliberately concealed from him.

62. I am satisfied on an objective basis that the searches Mr Steptoe conducted discharged the agency’s onus of conducting reasonable searches for information that falls within the scope of item 3. There is nothing in the evidence before me that would lead me to conclude that there is a reasonable likelihood of the existence of information that falls within the scope of item 3 that has not been identified by these searches.

63. With respect to item 4 of the access request, the agency determined that what the applicant states there is a definition of “document” for the purposes of other items of his request. The applicant did not contend otherwise in his written or oral submissions. For the reasons I state elsewhere, I am satisfied that the searches Mr Steptoe conducted would have identified most such ‘documents’ to the extent that they are held by the agency.

64. The exceptions to this are ‘emails, SMS messages, MMS messages, and Chat messages’. In the remitted decision Mr Steptoe does not address what, if any, attempt was made to identify documents of this nature, at least to the extent that this information is potentially held on individual officer equipment rather than in a central record. However, on the face of it, a plenary request for information of this nature referenced to the entire NSW Police Force is not a reasonable request for government information. It is difficult to see how such a search could be conducted. In any event, it appears to me that it would require an unreasonable and substantial diversion of the agency’s resources.

65. With respect to item 5(a) of the applicant’s access request (correspondence between NSW Police and other agencies), Mr Steptoe explains in the remitted decision where records of NSW Police correspondence with the Ombudsman are held by the agency and the searches he conducted. These searches were productive of three document files related to complaints the applicant had made to the Ombudsman. The applicant was provided with access to these documents.

66. Item 5(a) of the access request refers to several agencies, not just the Ombudsman. The remitted decision does not state in explicit terms what searches were conducted in relation to NSW Police communications with the other agencies referred to. However, in his oral evidence Mr Steptoe explained that the searches he conducted of COPS, View IMS, and RMS would have identified records of any such communications.

67. The applicant has not placed any evidence before the Tribunal of specific interactions between NSW Police and the named agencies concerning him that gives rise to a reasonable likelihood that a document would have been created and held by NSW Police in relation to that interaction.

68. I am therefore satisfied that the agency has discharged its onus of establishing it conducted reasonable searches for information falling within item 5(a) of the applicant’s access request. There is nothing in the evidence before me that would lead me to conclude that there is a reasonable likelihood of the existence of information that falls within the scope of item 5(a) that has not been identified by these searches.

69. With respect to items 5(b) to (e) of the applicant’s access request, Mr Steptoe explains in the remitted decision that the searches he conducted in relation to item 3 would also have identified any document held by the agency in these categories.

70. With respect to the Information Report 1 187426894 dated 29 July 2011, Mr Steptoe explains in the remitted decision the further searches he conducted for information referenced in that document, which included information held by the Counter Terrorism and Special Tactics Command. He explains what further information was identified by those searches and why there is no reasonable likelihood of the existence of any further information relating to the Information Report. I am satisfied that this explanation is objectively reasonable.

71. The applicant is vehement in his belief that there must be further information relating to communications between NSW Police and the Turkish Consulate and related to Constable Tuncer’s attendance at his home on 26 July 2011. However, I am satisfied by the explanation provided in the remitted decision, and elaborated upon by Mr Steptoe in his oral evidence, that there is no reasonable likelihood that this is the case. Not every interaction by NSW Police and a member of the public or another agency results in the creation of a record. Systemic law enforcement interagency communication exchanges by NSW Police do not generate responses from the other agency.

72. I am thus satisfied on the totality of the evidence that the agency has discharged its onus of establishing that it does not hold any further government information that is responsive to the applicant’s access request. In this respect the agency has established to my satisfaction that the searches it has carried out to identify potentially responsive information have been reasonable.

73. For completeness, I note that at various points in his written and oral submissions the applicant appeared to call on the Tribunal to order agencies other than NSW Police to produce documents concerning him that he believes to be held by those agencies. The Tribunal has no power do so in the context of this administrative review which is limited to NSW Police’s decisions in relation information held by it. The applicant also appeared to contend in his written and oral submissions that the Tribunal should order the agency to create records that he believes should have been made if they weren’t. In particular, he contended that Constable Tuncer ought to be made to set out what information he knew when he attempted to contact the applicant in July 2011. He also wants the agency to set out all information received from and given to the Turkish Consulate, including at that time. However, the Tribunal has no power to make such an order. The GIPA Act governs access to information that is held by an agency. It does not require an agency to create information.

Orders

74. For the foregoing reasons:

1. The agency’s decision that it does not hold further information within the scope of the applicant’s access request is affirmed.

2. The agency’s decision that there is a conclusive overriding public interest against disclosure of the duty book entries of its Counter Terrorism and Special Tactics Command is affirmed.

1. The agency’s decision that there is an overriding public interest against the disclosure of the personal information of another person contained in police notebook no F258734 is affirmed

**********

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: 15 December 2022