Ugur v Commissioner of Police

[2020] NSWCATAD 293

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Ugur v Commissioner of Police [2020] NSWCATAD 293

Hearing dates:

26 October 2020

Date of orders:

2 December 2020

Decision date:

02 December 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

FREEDOM OF INFORMATION – government information – whether further information held by the agency

Public interest considerations against disclosure – informants – personal information

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Cases Cited:

Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52

Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195

Miskelly v Secretary Department of Education [2019] NSWCATAD 48

NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55

Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Haci Orhan Ugur (Applicant)
Commissioner of Police (Respondent)
Also heard
Information Commissioner (see s 104(1), Government Information (Public Access) Act 2009)

Representation:

Solicitors:
Applicant (Self Represented)
Norton Rose Fulbright (Respondent)

File Number(s):

2020/00166818

Publication restriction:

Pursuant to s 64(1)(b) and (d) of the Civil and Administrative Tribunal Act 2013 the publication of, or disclosure to the applicant of the paragraphs of these reasons marked “Not for publication” is prohibited.

REASONS FOR DECISION

Background

1. The applicant Mr Ugur applied for review of a decision by the respondent under the Government Information (Public Access) Act 2009 (GIPA Act).

2. The hearing of this matter was affected by some difficulties. Mr Ugur arrived at the registry for the commencement of the hearing at 10.00 am having been previously told the hearing would be conducted by telephone. I delayed the commencement of the hearing until 10.30 and again until 12 noon to allow him to find a location where he could telephone from comfortably.

3. At the commencement of the hearing Mr Ugur applied for an adjournment as he wanted the hearing to proceed with the parties attending in person.

4. I declined to grant an adjournment as:

1. He had previously made an application which had been refused and no new grounds were put forward;

2. He had been aware of the hearing date for some time but had not made the adjournment request until the day of the hearing.

5. The hearing proceeded by telephone, however during the hearing Mr Ugur dropped out of the call several times and finally dropped out shortly before the hearing finalised and did not dial back in until after the hearing. On the last occasion I did not hear the usual sound which indicates that a party has left the hearing. As I could not be sure if he had heard all the final submissions made by the parties, I made directions allowing the Applicant to either:

1. file any submissions in writing addressing evidence and evidence and submissions on or before 2 November 2020 or

2. if he requires a copy of the recording to make a request for it on or before 2 November 2020 and file submissions 7 days after receiving the recording.

6. At Mr Ugur’s request, the date for requiring a copy of the recording was extended to 12 November 2020. The submissions were filed late on 24 November 2020.

The nature of the application

7. Mr Ugur’s original application requested copies of information relating to himself. I will not reproduce the entire request but it can be summarised as follows:

1. Point 1 - information held on the Computerised Operational Policing System (COPS) relating to himself.

2. Point 2 – information held on the Suspect Targeting Management Plan relating to himself.

3. Point 3 - “all documents or records or files or communications” relating to himself, involving legal advice or consent, compulsory medical treatment and/or medical procedure, supervision and/or surveillance, management, detention or other forms of control” of himself.

4. Points 4 and 5 - all records relating to himself sent or received between NSW Police and various other NSW and Australian government agencies, the Sydney Turkish Consulate, the Turkish police, any other overseas agency and certain named persons; and communications between a named NSW police officer (Constable Tuncer) and certain other named persons.

8. There was no date range limit on the information sought. Initially the respondent sought Mr Ugur’s assistance to refine his application but he did not respond. It therefore processed the application on the basis of its own proposal for refining the request which was limited to what was sought in Point 1.

9. The applicant sought an internal review of this decision. This application reduced the scope of the time period covered by points 2 to 5 inclusive of the request, to a period after July 2008 up to 22 December 2019 (the date of his original application). He also expressed his view that the searches conducted by the NSW Police under Point 1 were not adequate, with reference to COPS and the STMP, and he gave dates of certain incidents which should have been covered in the earlier searches for the information in Point 1 but had not been produced. He also objected to the redactions on the information produced.

10. The internal review was not processed within the statutory timeframe. The applicant applied to the Information Commissioner for external review. The Information Commissioner recommended that the respondent make a new decision. The NSW Police Force did make a new decision on 15 July 2020. That decision released some information in full and some in part. Certain parts of information were withheld on the grounds of s 14 (1) (d) (e) and (f) and 3(a).

11. Mr Ugur filed extensive background information and submissions as well as an affidavit. Much of this material related to complaints about the respondent’s behaviour towards him in other circumstances and did not relate directly to the GIPA application. From a perusal of this material, however it is apparent that Mr Ugur considered that:

1. The respondent did not undertake sufficient searches and that there was other material in the possession of the agency which had not been produced;

2. A particular document referred to as E18169952 should be released on the basis that it related to the applicant, was not confidential and was created 17 years ago;

3. The respondent had made unjustified redactions from the released information.

12. E18169952 was released to Mr Ugur prior to the hearing with names and details which might identify unrelated third party individuals redacted.

13. Mr Ugur’s submissions received after the hearing claimed various kinds of unsubstantiated criminal conduct and misconduct by the police towards him which is not relevant to the issues for consideration. The submissions are difficult to understand. He appears to submit that it was a denial of procedural fairness not to allow him to cross examine the respondent’s witness Mr Smith concerning this misconduct. Mr Smith was a witness as to the process for giving or denying access to the information and did not have any knowledge of police interaction with Mr Ugur.

14. He also submitted that Mr Smith did not substantiate his evidence regarding searches and the respondent failed to conduct searches as claimed. He claimed Mr Smith misled the Tribunal but the basis on which this claim is made is unclear. He makes a number of claims about Mr Smith which are not substantiated.

15. Mr Ugur made a number of complaints about the manner in which I conducted the hearing and disallowed certain questions during cross examination. Questions were disallowed if they were not relevant to the issues in the case.

Relevant legislation and principles regarding information not held by the agency

16. Section 53 of the GIPA Act 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   An agency must 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 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 backup 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.”

17. Section 80 provides:

“80 Which decisions are reviewable decisions

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

…

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

18. As held by the Tribunal in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 at [19]:

“All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant’s suspicions and the adequacy of the agency’s endeavours to satisfy them. If left unsatisfied by the agency’s evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW).”

19. Recently in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Principal Member Britton sitting as an Appeal Panel held that this Tribunal should no longer follow the line of authority established by the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 (Shepherd) when reviewing a decision that information was not held by an agency under s 80(e) of the GIPA Act. Shepherd was followed by O’Connor J in Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195 who said at [69]:

An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.

20. Principal Member Britton held at [42-44] that 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:

“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 of the 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 exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.

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.”

   21. The Information Commissioner supported the approach taken in Wojciechowska as giving prominence to the agency’s search efforts and its familiarity with its own records systems. I have followed this approach.

Evidence

22. Matthew Smith, Senior Advisory Officer with the respondent, provided evidence of the searches which had been conducted. He had responsibility for the decision made on 15 July 2020 following the external review by the Information Commissioner. His evidence was that searches were conducted in the NSW Police document management systems used by operational policing units namely COPS, View IMS (which holds records of exhibits), RMS (which holds administrative records) and trace requests sent to specific police area commands to include other documents such as police notebooks. His affidavits of 8 September and 21 October 2020 were in evidence. Mr Smith was cross-examined by Mr Ugur.

23. Under cross examination he stated that in searching for information under Point 1:

1. He repeated the searches in COPS using the name and dates specified in the original request and identified an additional Information Report dated 29 July 2011.

2. He searched in View IMS and RMS for any reference to attendance by police at Mr Urgur’s home which was referred to in the Information report above but was unable to find any.

24. In relation to Point 2 he stated that he searched COPS using Mr Ugur’s name, address and date of birth. He located 4 event reports and 1 Information report for the period 1 January 2008 to 22 December 2019 but did not find anything relating to a STMP or the kind of police attention for which Mr Ugur would have been placed on a STMP.

25. In relation to Points 3 and 4 he searched COPS for records relating to Mr Ugur without any date limit. He did not find any information relating to the scope of the request but did find one additional event report relating to an AVO which was released in full.

26. He also searched View IMS using the COPS report numbers as key words and RMS using Mr Ugur’s name. No documents were located.

27. In February 2020, he made trace requests to Auburn, Bankstown, Cumberland, Parramatta, Leichhardt, Inner West, Lake Illawarra, Fairfield and Burwood PACs. Those requests provided Mr Ugur’s full name, and Event numbers relevant to the PAC.

28. Mr Smith also stated that while in Point 5 Mr Ugur sought records regarding cooperation, agreement, memoranda and statements between an officer named Murat Tuncer and the Turkish Consulate and named other persons; it emerged that this officer had left the Police Force and he was not a current employee. He did not approach Mr Tuncer’s previous police unit as he did not believe there were any more documents to be found there. He searched staff records but could not find records for a current employee of that name.

29. Based on his experience of conducting searches of these systems, he did not believe there were any more records to be found.

30. I am satisfied on the balance of probabilities based on his evidence that he conducted these searches as stated. As noted above the searches turned up some additional information which supports his account and Mr Smith also identified in relation to Point 1 where he expected to find information but did not.

31. The only evidence before the Tribunal which could potentially tend to prove that any other requested information is held by the respondent but was not produced relates to the officer named Tuncer. Mr Ugur stated that he found the card of the officer in his letterbox and near his door on 26 July 2011 and that on 29 July 2011 Mr Tuncer asked him to contact the Turkish Consulate. Mr Smith stated during cross examination that Mr Tuncer was no longer a police officer.

32. An intelligence information report dated 3 August 2011 which was released to Mr Ugur states that on or about 29 July 2011, officers attended Mr Ugur’s home to check on his welfare as his relatives in Turkey were concerned about him and had contacted the Turkish Consulate. According to the report, Mr Ugur spoke to police on 29 July and stated that he was well. Police suggested to him that he contact the Consulate and his relatives on that occasion. The officer who submitted the report is named as Murat Tuncer and the submitting station is described as “CTST (Counter Terrorism and Special Tactics) Engagement and Hate Crime Unit.”

Consideration

33. Mr Smith did not approach this Unit as part of his searches. He said that he did not approach Mr Tuncer’s former unit as he did not expect it would hold any information. This was because the report by Mr Tuncer stated it was “for information only” and it was disseminated to Flemington Local Area Command. It follows that Mr Smith believed Mr Tuncer’s Unit did not take any further action on the matter because it was for information only. I agree that this is a logical inference to make. Mr Smith did obtain copies of notebook entries from police officers at Flemington Local Area Command relevant to Mr Ugur’s request.

34. In my view this evidence does not indicate that any further information sought is held by the agency. The correct and preferable decision then is to affirm the decision of the agency in this respect.

Information withheld by the respondent

35. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

36. There is a general public interest in favour of the disclosure of government information (s 12). Other public interest considerations in favour of the disclosure of government information may be taken into account, and they are not limited.

37. The public interest considerations against disclosure which may be taken into account in conducting the determination, are limited to those in Schedule 1 and the Table to s 14 of the Act (s 14(1) and (2)).

38. In determining where the public interest lies, the Tribunal must determine whether there are public interest considerations against disclosure and whether, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13).

39. Section 107 of the GIPA Act provides that the Tribunal is to ensure that it does not disclose any information for which there is an overriding public interest against disclosure.

40. Section 64 of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal may make orders restricting the disclosure or publication of evidence or matters or names of persons or reports of its proceedings if it is satisfied that this is desirable by reason of the confidential nature of any evidence or matter.

41. Sections of these reasons which contain information which is subject to s 107 or s 64 are marked “Not for publication” and may not be disclosed to the public or the applicants.

The respondent’s case

42. The respondent made certain redactions to the information released and relied upon clause 2(a) and 3(a) of s 14 to the GIPA Act.

42. Clause 2(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have the effect of revealing or tending to reveal the identity of an informant or prejudice the future supply of information from an informant.

43. Clause 3(a) provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to the effect of revealing an individual’s personal information.

Consideration

45. I have reviewed the redactions made. In some cases they contain the identity of persons who provided information to the police and the nature of the information. In other cases they contain their personal details such as addresses.

46. [NOT FOR PUBLICATION]

47. A guarantee of anonymity is essential to people’s willingness to provide information to the police. This was recognised in Miskelly v Secretary Department of Education [2019] NSWCATAD 48 in which the Tribunal held at [127]:

“If informants were not confident that their identities would be protected it could reasonably be expected that they would be reluctant in future to supply confidential information… Others would be likely to be deterred from reporting if identity details were disclosed.”

48. In NSW Office of Liquor, Gaming and Racing v Fahey [2012] NSWADTAP 55, the Appeal Panel of the Administrative Decisions Tribunal held at [47] that an "informant" is not restricted to 'police informers' or people who might be involved in the conduct of interest, but bears a wider connotation of a person who gives information.

49. On the basis of the documents themselves I am satisfied that disclosure of the information could reasonably be expected to reveal the identity of one or more informants and also discourage such informants from providing information to police in the future.

50. “Personal information” is defined in clause 4 of Schedule 4:

“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.”

51. I have reviewed the other information withheld which does not fall under clause 2(a) and I am satisfied that disclosure of the information would reveal the personal information of a number of unrelated individuals.

52. Having established that the public interest considerations against disclosure exist, I must balance them against the considerations in favour of disclosure. The considerations in favour of disclosure in my view include:

1. The general public interest in favour of disclosure of government information;

2. That in some respects the information is also the applicant’s own personal information.

53. In weighing up the public interest considerations for and against disclosure, I consider that the public interest considerations against disclosure carry significant weight. The public interest considerations in favour of disclosure are important but not as significant, in my view, as the potential harm which could be caused by disclosure. In my view the correct and preferable decision is to affirm the decision under review.

Orders

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

Amendments

02 December 2020 - Deleted duplication of certification that this is a true and accurate record of the reasons

Decision last updated: 02 December 2020