Wojciechowska v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 204

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Wojciechowska v Commissioner of Police, NSW Police Force [2025] NSWCATAD 204

Hearing dates:

12 June 2025

Date of orders:

12 August 2025

Decision date:

12 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EA MacIntyre, Senior Member

Decision:

The Respondent’s reviewable decision is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – information not held – reasonableness of searches – personal information – information about operations of agency – public interest considerations for disclosure of information – public interest considerations against disclosure of information – balance

CONSTITUTIONAL LAW – judicial power – administrative power – dispute between State and resident of another state – jurisdiction – whether Tribunal has power to determine whether it has jurisdiction

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Federated Engine Drivers’ and Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398

FZK v Department of Customer Service [2024] NSWCATAP 185

Klaric v Commissioner of Police [2020] NSWCATAP 153

New South Wales v Wojciechowska [2025] HCA 27

Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Wojciechowska v Commissioner of Police [2021] NSWCATAD 210

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191

Category:

Principal judgment

Parties:

Paulina Wojciechowska (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-represented)
Crown Solicitor (Respondent)

File Number(s):

2021/00333475

Publication restriction:

None

REASONS FOR DECISION

1. The matter before the Civil and Administrative Tribunal (“Tribunal”) in these proceedings is an application to review an administrative decision made by the Commissioner of Police, NSW Police Force (“Respondent”) under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”). The applicant, Paulina Wojciechowska (“Applicant”) contests the jurisdiction of the Tribunal to determine her application for review.

Background

2. The Applicant was, at the time of the hearing of this matter, not a resident of New South Wales.

3. On 1 September 2021, the Applicant made an access application for government information. That information comprised of certain information she said was held by the Respondent. It included data for “BL 21”. The identifier “BL” refers to a police station in the Blue Mountains. The information sought also included various items of GPS data, radio data, information in a notebook and phonebook, information concerning a “call sign” and entries in police records.

4. On 29 September 2021, the Respondent made a decision in response to the access application refusing to deal with it, as a previous application for information had already been decided. In addition, it was also decided that some of the information was already available to the Applicant.

5. Following an application for review by the Civil and Administrative Tribunal (“Tribunal”), on 5 April 2022, the Tribunal ordered that the decision of the Respondent made on 29 September 2021 be remitted to the Respondent for reconsideration.

6. On 26 April 2022, the Respondent made a further decision providing for the release of certain information to the Applicant.

7. On 20 December 2021, the Applicant had sought referral of questions relating to the constitutional jurisdiction of the Tribunal to the Supreme Court of NSW. On 2 March 2022, the Tribunal decided that it had jurisdiction.

8. The Court of Appeal of NSW subsequently confirmed that the Tribunal had jurisdiction (Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191).

9. Other proceedings for access to government information had been decided on 16 July 2021 (Wojciechowska v Commissioner of Police [2021] NSWCATAD 210). This matter concerned among other things a search for information for GPS data for police vehicles. That data was identified using the descriptors “BL 21” for 25 September 2018, “BL 81” for 22-23 September 2018 and “BL 81” for 19, 21 and 22 August 2018.

10. The Respondent’s evidence was that the search for BL21 for 25 September 2018 returned “no valid GPS data, as the X and Y columns in the CAD DATABASE recorded all zeroes”. The Respondent’s evidence was that this could be due to a GPS receiver not having a fix or a technical fault.

11. The evidence given on behalf of the Respondent was that the sign “BL 81” was a police station in the Blue Mountains Area Command and not a vehicle, and thus was not expected to have GPS data. As such, no GPS data for BL 81 was released. However, data was mapped using the “Microsoft Power BI Visualisation” tool. The call sign log for BL 81 indicated that a police officer logged into the mobile client using that call sign on and around the specified dates. The device used to log into mobile client was a laptop used by a police officer.

12. As the access application only sought GPS data relating to police vehicles, the Respondent said that any GPS data for BL 81 was outside the scope of the access application. On 16 July 2021, the Tribunal affirmed the Respondent’s decision (Wojciechowska v Commissioner of Police [2021] NSWCATAD 210).

13. The Respondent’s submission was that the primary purpose of the access application before the Tribunal in these proceedings was to request “invalid” GPS data, or GPS data which was found not to relate to a police vehicle.

14. The Respondent says that the remitted decision of 26 April 2022 released the “invalid” GPS data and that the balance of the information had been released to the Applicant, except insofar as “limited personal information with third parties” was within scope and the terms of the access application were broad enough to pick up notes or broadcasts relating to third party incidents and investigations unrelated to the Applicant.

15. The Respondent relied on an affidavit of Erin Drummond affirmed on 28 September 2023.

16. The Respondent also filed a bundle of unredacted documents and complete VKG recording of broadcasts on police radio. The Tribunal, in the Respondent’s submission, had to receive the closed material on a confidential basis, because it was necessary to do so to prevent the disclosure of information for which there was or for which there could be or was claimed to be, an overriding public interest against disclosure (s 107(2) and (3) of the GIPA Act).

Powers of Civil and Administrative Tribunal

17. The powers of the Tribunal to review a decision arise where a person is aggrieved by a “reviewable decision” of an agency. Such a person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) of that decision (s 100 of the Government Information (Public Access) Act 2009 (“GIPA Act”)).

18. What are “reviewable decisions” of an “agency” is set out in s 80 of the GIPA Act. They include a decision that government information is not held by the agency (s 80(e) of the GIPA Act). They also include a decision to provide access or to refuse to provide access to information to an access application (s 80(d)).

19. An “agency” is defined in s 4(1) of the GIPA Act to include a “public authority”. A “public authority” in turn is defined in Schedule 4 of the GIPA Act to include “the NSW Police Force”.

20. An agency has made a “reviewable decision” within s 80 of the GIPA Act, the agency being the Respondent and the “reviewable decision” being a decision that government information is not held by the agency. The agency has also decided not to release certain information.

21. The Tribunal under s 63 of the ADR Act is to determine the matter, based on the material before it, including any relevant factual material and any applicable written or unwritten law. It must decide what is the correct and preferable decision. It may decide to affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit the matter to the agency in accordance with any directions or recommendations of the Tribunal.

22. The provisions of the GIPA Act referred to above apply where the Applicant has made a valid “access application” seeking “government information”. It is not in issue that the Applicant made an “access application” under Part 4 of the GIPA Act and that the information requested was “government information”. (See definition of these terms in s 4 of the GIPA Act.)

Hearing

23. The Applicant was self-represented at the hearing and attended by telephone. The Respondent was represented by the Crown Solicitor. The Respondent’s representative attended the hearing in person.

24. At the hearing of the matter, the Applicant contested the jurisdiction of the Tribunal to determine her application for administrative review. She also contested the application of the Respondent under s 107 of the GIPA Act for the Tribunal to receive submissions and evidence in her absence.

25. The Applicant declined to make submissions at the hearing on the determination of her application for administrative review under the GIPA Act because she said that the Tribunal had no jurisdiction. She was given the opportunity to do so but refused to make submissions concerning her application for administrative review. She made no submissions disputing the Respondent’s specific evidence and submissions going to the determination of her access application under the GIPA Act, other than to say that she disagreed with the Respondent.

26. The Applicant, however, made oral submissions in support of her argument that the Tribunal had no jurisdiction. She provided to the Tribunal her reasoning. The Tribunal also has correspondence from the Applicant dated 11 June 2025 asserting that the Tribunal had no jurisdiction to validly hear and determine these proceedings.

27. The parties submitted that if the Tribunal did determine the Applicant’s, application despite the Applicant’s claim that the Tribunal had no jurisdiction, it should do so on the papers without a hearing concerning the applicable provisions of the GIPA Act.

Applicant’s right to information

28. The GIPA Act gives members of the public an enforceable right to access government information, subject to the provisions of that Act. That right is given for the stated object of maintaining and advancing “a system of responsible and representative democratic Government that is open, accountable, fair and effective” (s 3(1)(b) of the GIPA Act).

29. A person who makes an access application for government information has a “legally enforceable right to be provided with access to the information” (s 9(1) of the GIPA Act). Access applications are to be dealt with in accordance with Part 4 of the GIPA Act.

30. There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5 of the GIPA Act). There is a general public interest in favour of the disclosure of government Information (s 12(1) of the GIPA Act). However, the right to access will not be available where “there is an overriding public interest against disclosure of the information” (s 9 of the GIPA Act).

31. There is an overriding public interest against disclosure of government information for the purposes of the GIPA 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 (s 13 of the GIPA Act). However, 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 of the GIPA Act (s 14(1) of the GIPA Act).

32. The burden of establishing that a reviewable decision made under the GIPA Act is justified lies on the agency (GIPA Act (s 105(1))).

33. An agency may determine an access application under the GIPA Act in a number of ways, as relevantly set out in s 58(1):

“(a)   deciding to provide access to the information, or

(b)   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”

34. The GIPA Act requires an agency to undertake 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. That obligation is set out as follows in s 53 of the GIPA Act.

“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”.

Consideration

35. There are four questions for determination by the Tribunal in these proceedings. They are;

1. whether the Tribunal has jurisdiction to determine the Applicant’s application for administrative review?

2. whether the Respondent may rely on s 107 of the GIPA Act to have the Tribunal receive evidence in the absence of the Applicant?

3. if the Tribunal has jurisdiction, whether the Respondent’s decision that it did not hold certain information was the correct and preferable decision?

4. if the Tribunal has jurisdiction, whether the Respondent’s decision to refuse to provide access to the withheld information because there is an overriding public interest against disclosure of the information, was the correct and preferable decision?

Jurisdiction

36. It is the “first duty” of a court or tribunal to be satisfied it has jurisdiction (Federated Engine Drivers’ and Firemen’s Association of Australasia v Broken Hill Proprietary Company Limited (1911) 12 CLR 398, at p 415; [1911] HCA 31 (Griffith CJ)). The Tribunal, must itself be satisfied that it has jurisdiction (FZK v Department of Customer Service [2024] NSWCATAP 185, at [49]).

37. The Applicant’s submission was that the Tribunal did not have jurisdiction to determine the matter before it in these proceedings. This was because she was not a resident of NSW. Where a party to the proceedings was not a resident of the State, the Applicant’s submission, was that there was no jurisdiction to exercise judicial power. In the Applicant’s submission, determination of the matter would require the exercise by the Tribunal of judicial power.

38. The Respondent submitted that the Tribunal did have the jurisdiction to determine the matter before it in these proceedings. This was because the determination did not require the exercise of judicial power but an exercise of administrative jurisdiction. In the Respondent’s submission, its function of reviewing a decision under the GIPA Act, required it to exercise administrative jurisdiction and not judicial power.

39. There was no dispute that where the Applicant had resided interstate and her claims were against persons who were emanations of the State, her claims were of a kind potentially falling within s 75(iv) of the Constitution, because the dispute is between residents of different States or between a State and a resident of another State. The High Court has original jurisdiction in such matters. If the Applicant’s claim fell within s 75(iv) of the Constitution, it was agreed that the Tribunal had no jurisdiction.

40. However, where the Tribunal exercised power of a non-judicial kind, s 75(iv) does not prevent the Tribunal from exercising power in a matter where one of the parties resides outside the State (Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191, at [40] – [42]).

41. The Court of Appeal in that case considered the question of whether the Tribunal relevantly exercised judicial power under the GIPA Act. The Tribunal proceedings in question involved applications to review the following types of reviewable decisions under the GIPA Act: that an application is not a valid access application (s 80(a) of the GIPA Act); refusing to deal with an application (s 80(c)); refusing access to information (s 80(d)); that some of the information sought was not held by the agency (s 80(e)); that information was already available to the applicant (s 80(f)); and to provide information in a particular way (s 80(i)).

42. The Court of Appeal had regard to a number of matters in reaching its conclusion that none of the relevant functions of the Tribunal in reviewing decisions under the GIPA Act involve exercise of judicial power. The Court of Appeal said, at [104]-[105] (per Kirk JA, Mitchelmore JA and Griffiths AJA agreeing):

“The nature of the relevant decision-making functions at issue here point strongly towards characterising the decision-making functions as involving the exercise of non-judicial power. The process employed by the Tribunal tends to point the same way, if not strongly so. The outcome of the Tribunal process is, at most, a decision varying or substituting the decision of the administrator, which decision is treated as a decision of the administrator, and where the burden of the decision relevantly falls on the administrator. Those characteristics also point strongly towards a non-judicial characterisation.

Taking these matters together, there are no matters requiring that the powers at issue be characterised as judicial and significant factors pointing the other way. In the result, none of the impugned functions of the Tribunal in reviewing decisions under the GIPA Act involve exercise of judicial power. They may validly be exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction”.

43. The decision of the Court of Appeal was that the Tribunal could validly exercise functions of review under the GIPA Act. The decision addressed specifically the powers of the Tribunal under s 80, including a decision under s 80(e) that information is not held and a decision to refuse access (s 80(d)).

44. In accordance with the decision of the Court of Appeal, I am satisfied that the Tribunal may exercise the powers allowed to it under the GIPA Act to determine these proceedings, notwithstanding the residency of the Applicant outside the State.

45. The Applicant informed the Tribunal that there were proceedings before the High Court that she expected would be of relevance. That matter concerned the question of whether the exercise by the Tribunal of certain powers under the Privacy and Personal Information Protection Act 1998 (NSW) was an exercise of judicial power.

46. The Tribunal, however, is not able to make any findings as to jurisdiction that differ from those of the Court of Appeal based on the hypothetical outcome of proceedings before the High Court that address legislation other than the GIPA Act.

43. I observe in passing that the High Court handed down its decision in New South Wales v Wojciechowska [2025] HCA 27 on 6 August 2025. That decision does not consider the nature of powers the Tribunal exercises under the GIPA Act.

44. Accordingly, I find that the Tribunal has jurisdiction to hear and determine the matter before it, subject to the matters set out below in relation to s 107.

Procedure – s 107 of the GIPA Act

49. Section 107 of the GIPA Act provides as follows:

“Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of—

(a) the public and the applicant, and

(b) the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure”.

50. The Respondent filed with the Tribunal a bundle of unredacted documents and complete VKG recording marked “confidential”. The Tribunal, in the Respondent’s submission, must receive this material on a confidential basis, because it was necessary to do so to prevent the disclosure of information for which there was, or for which there could be or was claimed to be, an overriding public interest against disclosure (s 107(3) of the GIPA Act).

51. A preliminary question is whether the Tribunal has jurisdiction to exercise power under s 107. The Applicant said that the Tribunal did not have jurisdiction generally but made no submissions on jurisdiction specific to s 107. The exercise of that power requires that in doing so, the Tribunal is not exercising judicial power. The power under s 107 differs in some respects from those under s 80. First of all, it deals with procedure as to receipt of argument and evidence, as opposed to making a decision as to what should be done with information in substitution for a decision of the decision maker. Secondly, if s 107 applies, it requires that the Applicant be absent when evidence is received and argument heard.

52. However, s 107(3) requires determination of whether the information in issue is of a kind for which there is, could be or is claimed to be, an overriding public interest against disclosure. This is a question that engages the matters going to a decision under s 80. To this extent, these matters also remain relevant under s 107, even if what s 107 requires is not only a determination of whether there is an overriding public interest against disclosure but whether there is, or could be or claimed to be an overriding public interest against disclosure. The evaluative exercise required under s 107, is not, in my opinion, sufficiently different to that required under s 80 so as to require a different characterisation of the power exercisable under s 107 compared to that exercisable under s 80.

53. Section 107 further does not contemplate a final determination of what should be done with information. It provides for a procedure for the receipt of argument and evidence in the absence of the Applicant. Once this has happened, the Tribunal still must go on to make a decision under s 80. That decision may or may not be that there is an overriding public interest against disclosure. Section 107 provides for a preliminary step in the process allowed under the GIPA Act for a decision under s 80. A characterisation of the power under s 107 that is different to that under the scheme of the GIPA Act as a whole does not sit well with the statutory scheme and its purpose.

54. For the above reasons, I am satisfied that exercise of its powers under s 107 in the present case, is not an exercise of judicial power and does not fall outside the jurisdiction of the Tribunal.

55. Section 107(2) says that the Tribunal “must” receive relevant evidence and hear argument in the absence of the public and the Applicant if in the opinion of the Tribunal, it was necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. Section 107(3) says that on the application of the Minister, the Tribunal “must” receive relevant evidence and hear argument in the absence of the public and the Applicant if the opinion of the Tribunal, is that it was necessary to do so to prevent the disclosure of information in the circumstances set out in s 107(3). These circumstances are those where there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

56. However, before the requirement for confidentiality set out in each subsection of the provision comes into force, the Tribunal must form an opinion as required under the provision. After the Tribunal has formed such an opinion or otherwise, the information in issue must be dealt with in accordance with the GIPA Act. Section 107 itself does not provide for the making of a decision as to what is to be done with the information in issue. That decision must be made under s 80 or other relevant provision of the GIPA Act.

57. I do not accept that the documents in issue can be released to the Applicant or otherwise be dealt with, until after the Tribunal has formed the opinion it must form under s 107(2) or (3). To do so is contrary to the plain language of the provision which requires the Tribunal to form the relevant opinion before the evidence is dealt with in the way set out in s 107(2) or (3). If the Applicant were to first receive the evidence herself before the Tribunal forms the required opinion, this would defeat the purpose of the provision. That purpose is for evidence to be received in confidence if the Tribunal is of the opinion that this should happen within the terms of s 107.

58. Having reviewed the information in issue, it is not to be doubted that at least, there is claimed to be, an overriding public interest against disclosure within the meaning of s 107(3).

59. I am satisfied that in these circumstances, the Tribunal must by reason of s 107(3) receive the relevant evidence and argument in the absence of the public and the Applicant, the agency in question having made application under s 107(3).

Reasonable searches

60. The decision the subject of administrative review in this matter includes a decision that certain government information sought by the Applicant is not held in relation to parts of her access application.

61. Making a decision that information is not held first requires that the Respondent have carried out searches for that information to ascertain whether or not the information is held. The statutory obligation on the part of the Respondent is 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 (s 53(2)).

62. The Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 (“Klaric”) considered the effect of s 53 and specifically what powers the Tribunal had where a question arose as to whether reasonable searches had been conducted. It said, at [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 power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search”.

63. While the reasonableness of searches is not, in and of itself, reviewable, it is, however, a relevant consideration as to the correctness of a determination that information is not held. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173, at [41], the Appeal Panel clarified the finding in Klaric in the following terms:

“… whether the agency has complied with the obligation imposed by s 53 is plainly a relevant factor in determining whether an ‘information is not held’ decision is the ‘correct and preferable decision’”.

64. In Wojciechowska [2020] NSWCATAP 173, the Appeal Panel also said that an access applicant is not required to establish that there are reasonable grounds to believe that the requested information exists and is held by an agency, before that agency must undertake searches. Instead, it falls to the agency to assess whether there are reasonable grounds to believe that the information the subject of the access application exists and is held by the agency. It went on to describe how the question of whether searches are “reasonable” should be addressed. It said, at [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 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”.

65. The Appeal Panel then summarised the task for the Tribunal in reviewing a decision that information is not held by an agency, at [44]:

“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”.

66. The Respondent identified 16 items of information dealt with in the decision under administrative review.

67. Nine of these items were released to the Applicant. They were as follows:

1. Item 1 - Data – BL 21 for 25 September 2018 (a data sheet comprising two pages)

2. Item 3 – GPS Data – BL 81 for 22 September 2018 (a spreadsheet)

3. Item 4 – GPS Data – BL 81 for 23 September 2018 (a spreadsheet)

4. Item 5 – GPS Data – BL 81 for 19 August 2018 (a spreadsheet)

5. Item 6 – GPS Data – BL 81 for 21 August 2018 (a spreadsheet)

6. Item 7 – GPS Data – BL 81 for 22 August 2018 (a spreadsheet)

7. Items 11 and 12 – Pages of notebook of John Sanderson

8. Item 15 – NSWPF Phonebook entry for Rajneesh Kandian as at 1 September 2021.

68. A number of other items identified by the Respondent were pieces of information released to the Applicant in part. These were described by the Respondent as follows:

1. Item 8 - VKG radio referring to the applicant 10:44 AM to 11:16 AM on 25 September 2018 (released to the extent relating to the Applicant)

2. Item 9 - VKG radio referring to the CAD report re Applicant - 10:44 AM to 11:16 AM on 25 September 2018 (released to the extent relating to the Applicant).

3. Item 10 - Pages 40 to 45 of John Sanderson’s notebook used as at 25 September 2018 (released in so far as relates to Applicant - except one item of personal information).

69. The Respondent submits that these disclosures evidence that reasonable searches were conducted. The Respondent also submitted that in respect of items 8 and 9 the decision should be characterised as release of information sought in full. This was because each item included the relevant information relating to the Applicant. The VKG recording in question, according to the Respondent’s evidence, had been cut to remove broadcast of other incidents. The Respondent’s evidence was that that information would involve the disclosure of the personal information of third parties without their consent.

70. The remaining items identified by the Respondent included items described as not being held by her. These were as follows:

1. Item 2 - GPS data - BL24 for 25 September 2018

2. Item 13 - Documents showing call sign of Peter Scheinflug as at 25 September 2018

3. Item 14 - Documents showing call sign of Peter Scheinflug as at 1 September 2021

4. Item 16 - NSWPF phonebook entry for Rajneesh Kandian as at July 2020.

71. Senior Sergeant Brombey was asked to do the search for information in item 2. He gave evidence by affidavit describing his search for that information. It was not found. The Respondent said that the search for item 2 returned no GPS coordinates.

72. As regards items 13 and 14, the Respondent said that there was no specific document describing use of the call sign that had been searched. The Respondent’s searches also included making inquiries with Peter Scheinflug. The evidence was that the Respondent also searched police internal manuals and provided two screenshots for the searches. No information was found.

73. As regards item 16, the Respondent said that the searched phone book did not have the capability to extract historic versions of entries as searched. It was updated automatically every night without archiving old data. Accordingly, information responsive to item 16 was, in the Respondent’s submission, not held.

74. The mobile number of Mr Kandian was not released. The Respondent submitted that this was personal information which was subject to an overriding public interest against disclosure.

75. I accept the evidence of the Respondent as to the matters set out above concerning the searches carried out applying the appropriate parameters, including GPS location information and call signs. I find that these searches were carried out on the data bases the Respondent described as holding relevant information. There was no evidence of what other searches could have been carried out. I am satisfied that the searches were, in these circumstances, reasonable.

76. There were no submissions from the Applicant to contest what the Respondent said as regards the reasonableness of her searches.

77. Having been satisfied that the searches carried out met the required standard, the correct and preferable decision in respect of items 2, 13, 14 and 16 is that the information the subject of the Applicant’s access application was not held by the Respondent.

Whether there was an overriding public interest against disclosure of the withheld information?

78. The remaining question is whether the Respondent’s decision to refuse to provide access to the withheld information described at [69] above because there is an overriding public interest against disclosure of the information, was the correct and preferable decision.

79. The information withheld included information not concerning the Applicant in VKG recordings (Items 8 and 9). To the extent that the information not concerning the Applicant fell outside the scope of her access application, it must follow that what was released to her was a release in full of the information within the scope of her application contained in the relevant radio records.

80. Alternatively, even to the extent that the information in question remained within the scope of the access application, I consider below the correct and preferable decision in relation to that information where it concerned other people, after weighing the public interest considerations for and against disclosure.

81. The information not provided to the Applicant is contained in Items 8, 9 and 10. It included VKG recordings about persons other than the Applicant and information set out in certain notebooks of John Sanderson. The unredacted versions of the records containing this information were received in evidence by the Tribunal pursuant to s 107 of the GIPA Act.

82. The information redacted from Items 8, 9 and 10 comprises various items of personal information concerning third parties. I describe the nature of that information in the following paragraph [82].

83. The information in the notebooks of John Sanderson includes the names and dates of birth of certain persons, residential addresses and information about them. That information is personal information about third parties.

84. The Table under s 14 of the GIPA Act provides as follows:

“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...”

85. “Personal information”, in turn, is defined as follows in cl 4 of Schedule 4 of the GIPA Act:

“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.

(2) Personal information includes such things as an individual’s fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following—

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual’s name and nonpersonal contact details, including the individual’s position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause”.

86. The information redacted by the Respondent (including that in VKG radio records), is with little doubt, “personal information”, containing as it does information about third parties whose identity is apparent or can reasonably be ascertained from the information.

87. It follows that a public interest consideration against disclosure arises against disclosure of that personal information and carries significant weight. Personal information in its nature is information that appertains to a particular individual and their affairs. I do not think it matters whether the third parties are known to the Applicant or not. Such information should not be disclosed unless there are public interest considerations in favour of disclosure carrying more weight.

88. I find that little weight can be given to public interest considerations in favour of disclosure of VKG recordings concerning persons other than the Applicant. There may be a public interest consideration in favour of disclosure of this information to the extent that disclosure of the information could reasonably be expected to inform the public about the operations of the Respondent in dealing with calls from members of the public. However, this is a consideration that can carry little weight and cannot outweigh the significant weight carried by the public interest consideration against disclosure of personal information. I am unable to find any other public interest consideration in favour of disclosure that can carry any weight.

86. To the extent that the notebooks in issue contain personal information about various third parties, I have found that the public interest consideration against disclosure of personal information carries significant weight. I am unable to find any public interest considerations in favour of disclosure that can carry any equal or greater weight. Even if the information in the notebooks includes information that could reasonably be expected to inform the public about the operations of the Respondent in dealing with members of the public, these are considerations that at best can, in the circumstances, carry little weight.

87. It follows that the public interest consideration against disclosure of the redacted personal information in Items, 8, 9 and 10, significantly outweighs any public interest considerations in favour of disclosure.

88. The mobile telephone number of Mr Kandian, who is referred to in Items 15 and 16 above, is also personal information. I see no public interest consideration in favour of disclosure of this information, or at lease none that can carry any weight.

89. The Respondent’s decision to redact the personal information in issue is the correct and preferable decision.

Conclusions

93. For the reasons set out above, I find that;

1. the Tribunal has jurisdiction to hear this matter.

2. the Respondent may rely on s 107 of the GIPA Act to have the Tribunal receive evidence it has not disclosed, in the absence of the Applicant.

3. the Respondent’s decision that it did not hold certain information was the correct and preferable decision.

4. the Respondent’s decision to refuse to provide access to the withheld information because there is an overriding public interest against disclosure of the information, was the correct and preferable decision.

Orders

1. The Respondent’s reviewable 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

Decision last updated: 12 August 2025