Allchin v Police Integrity Commission [2017] NSWCATAD 219 | Case summary

NCAT Administrative and Equal Opportunity|2017-07-03

REASONS FOR DECISION

Mr Craig Allchin is a former police officer who understands he was the subject of an investigation by the Integrity Testing Unit within the NSW Police Force in about November 2003. The investigation was known as "Operation 82". He made an application to the Police Integrity Commission ("the Commission") under the Government Information (Public Access) Act 2009 ("the GIPA Act") for access to all information held by it in relation to that investigation.
The Commission refused Mr Allchin's application on the basis that his application was invalid because he had requested "excluded information". That decision was affirmed on internal review and he has now sought review of the decision by the Tribunal.

Issues

The Commission advised Mr Allchin that there were two documents in its possession and, in its view, these documents fall within the meaning of "excluded information". Mr Allchin argues that, as he was the subject of surveillance and investigation in 2003, in accordance with normal police procedures there would be a significant number of documents generated as part of the investigation. He has been provided with some documents relevant to the investigation in other proceedings.
Mr Allchin states that the investigation was conducted under s. 207A of the Police Act 1990 (a matter not disputed by the Commission) and, under that provision, the Commissioner of Police is required to give the Commission a report of all matters conducted under that section in relation to each quarter. He believes that the Commissioner of Police would have been required to furnish a copy of all the documents it had in relation to the investigation to the Commission. He therefore argues the Commission must have more documents in its possession.

Sufficiency of searches for information

The Applicant contends that the Commission should hold other information that has not been located or provided to him. He explained why he believed that the information should exist and he has filed material to support his contention.
In order to determine whether the Commission has located all of the information falling within the scope of the access application it is necessary to consider the steps it took to locate the information and whether it has satisfied its obligations under section 53 of the GIPA Act. Section 53 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.
The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search. The first is to consider whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency. If that question is answered in the affirmative, then to consider whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances.
The decision in Shepherd has been followed in a number of subsequent decisions. In the context of the GIPA Act the Tribunal must form a view as to whether or not there may be some further information that falls within the scope of the access application and, if so, whether the efforts that the agency concerned made to find the information were sufficient.
The Commission's representative explained that all documents which are received by the Commission are scanned, bar coded and entered into a Sharepoint document management system. At the time of the investigation into Mr Allchin in November 2003 another system was in use, but its contents were migrated to the Sharepoint system now in operation.
The Commission's representative stated that, under his instruction, a para-legal had conducted searches of the system using the search terms "Allchin", "Craig Allchin" and "Operation 82" in order to locate relevant documents. The searches had located two documents - a two page document authored by the NSW Police Force ("Document 1") and a one page document also authored by the NSW Police Force ("Document 2"). The Commission's representative also performed searches of the system himself and located the same two documents. The Commission provided additional evidence that there is no record of it receiving a report or any other related documents from the Commissioner of Police about an investigation by the Integrity Testing Unit concerning Mr Allchin.
Based on the information provided by the Commission, I am satisfied that only the two documents mentioned above are in the Commission's possession. I am also satisfied that sufficient searches were conducted to locate relevant documents.

Are the documents "excluded information"?

Section 43 of the GIPA Act provides that an access application cannot be made to an agency for "excluded information" of the agency. An access application is not valid to the extent that it requests "excluded information".
Information is excluded information of an agency if it relates to any functions specified in Schedule 2 of the GIPA Act. In relation to the Commission, the functions specified are: corruption prevention, complaint handling, investigative and reporting functions.
Clause 6 of Schedule 1 of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information which that the agency has consented to disclose.
Under s. 13 of the Police Integrity Commission Act 1996, one of the principal functions of the Commission is to prevent officer misconduct. Officer misconduct is defined in that Act to mean "police misconduct, corrupt conduct of an administrative officer or misconduct of a Crime Commission officer". Section 5 gives examples of what may involve police misconduct and these include "any other matters about which a complaint can be made under the Police Act 1990".
Document 1 is titled "Complaint Details" and sets out brief details of a complaint, the name of the complainant, the date the complaint was received and other administrative matters. In my view this document clearly relates to the Commission's complaint handling functions and is excluded information under the GIPA Act.
Document 2 appears to be some sort of memorandum or submission prepared by an officer of the NSW Police Force. The document sets out the issue and background to an operation and makes comments and a recommendation. Document 2 is clearly related to the complaint set out in Document 1 and it too in my view is excluded information under the GIPA Act.
That being the case, it is conclusively presumed that there is an overriding public interest against disclosure of that information and accordingly the Tribunal has no discretion to release the information.
During the course of that part of the hearing from which Mr Allchin was excluded in accordance with s 64 of the Civil and Administrative Tribunal Act 2013, it became apparent that Document 2 is in fact already in the possession of Mr Allchin from other sources. In those circumstances, quite rightly, the Commission consented to disclose that document to Mr Allchin.
Having determined that the documents in question are excluded information, the appropriate order is to affirm the decision. However, the Tribunal notes that the Commission has consented to disclose Document 2 to Mr Allchin and that Mr Allchin was provided with a copy of that document by the Commission during the hearing.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2017

Allchin v Police Integrity Commission

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