Bolejko v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2021-07-05

REASONS FOR DECISION

Krzysztof Bolejko made an application to the Commissioner of Police, NSW Police Force (the Commissioner) under the Government Information (Public Access) Act 2009 (the GIPA Act) seeking access to certain government information. He later refined the scope of his application which then sought access to 10 items of information.
On 14 July 2020 the Commissioner decided that some of the information sought was not held by the Commissioner, released some information in full, released other information with redactions and withheld access to one item of information in its entirety. During the course of the Tribunal proceedings a document which had previously been released in part was released to Dr Bolejko in full.
Dr Bolejko sought external review of the Commissioner's decision by the Information Commissioner who recommended a new decision be made. The Commissioner did not accept that recommendation and declined to make a new decision. Dr Bolejko now seeks review of the Commissioner's decision by the Tribunal.
For the reasons which appear below I have varied the Commissioner's decision in respect of one aspect of the access request and otherwise affirmed the decision under review.

The GIPA request

The information sought by Dr Bolejko (with some details anonymised) is: 1. Copies of all information (in any format) held in relation to me (Krzysztof Bolejko) in connexion with or arising out of the repetitive scans of my Opal Card with number XXXX 4608, including but not limited to my (Krzysztof Bolejko's) travel patterns and/or travel patterns of the holder of card with the number: XXXX 4608. 2. Copies of all results of iAsk and/or ACID and/or SIG requests on my name ("Krzysztof Bolejko" or "Bolejko Krzysztof"), and/or my car registration ("YYYY"), and/or my Opal Card ("XXX4608") and/or my NSW driver's licence ("ZZZZ"). The "results" referred to in this part are to be unedited and complete. 3. Copies of all information in any format held in relation to me (Krzysztof Bolejko) in connection with or arising out of the fingerprinting for the police clearance conducted in 2014. 4. copies of all warnings or alerts in relation to me (Krzysztof Bolejko) and/or my Opal Card XXXX4608 and/or my driver's licence ZZZZ (all versions). 5. Complete copies of my complete Criminal History as at 20 May 2020 (all versions). 6. Complete copy of my complete Central Index System printout from Webcops. 7. Complete copy of my complete Central Index System printout from COPS (even if someone forms an opinion that it is the same as the print out in pt 6 above - I do not trust your opinions). 8. Complete copies of any witness statements and or notes taken in order to prepare witness statements that mention me ("Krzysztof Bolejko") and/or my car with the plates YYYY (all versions). 9. Complete copies of the document showing how many times my name ("Krzysztof Bolejko" or "Bolejko Krzysztof") was searched for on WebCOPS (including the dates and times when it was searched for and by whom). 10. Complete copies of the document showing how many times my name ("Krzysztof Bolejko" or "Bolejko Krzysztof") was searched for on COPS (including the dates and times when it was searched for and by whom).

Material before the Tribunal

The material before the Tribunal in these applications includes:

statements of Dr Bolejko dated 17 May 2021 and 14 September 2021;
a statement of Paulina Wojciechowska dated 14 September 2021;
a document dated 31 August 2021 and titled "Objections of the Applicant";
submissions Dr Bolejko dated 17 May 2021 titled "Applicant's Submissions on Jurisdiction";
a bundle of documents filed by the Commissioner on 10 May 2021;
affidavit of Matthew Smith dated 4 June 2021;
affidavit of Matthew McCarthy dated 3 June 2021;
affidavit of Cathryn Bradbury dated 4 June 2021;
confidential affidavit of Matthew McCarthy dated 3 June 2021;
open and confidential submissions of the Commissioner filed 8 June 2021; and
a confidential copy of the information for which the Commissioner says there is an overriding public interest consideration against disclosure and to which Dr Bolejko has been refused access.

At the beginning of the hearing on 15 September 2021 the Commissioner objected to the evidence of Dr Bolejko which had been filed outside the timetable which had previously been set for the filing of evidence, some of which had been filed only the day before the hearing. The Commissioner's objection was noted and the Commissioner indicated that, notwithstanding the late service, she was ready to proceed. I have therefore had regard to that evidence.
Dr Bolejko provided a document on 31 August 2021 titled "Objections of the Applicant". This document contained a table which set out objections to statements in the affidavits of Matthew Smith, Cathryn Bradbury and Matthew McCarthy (open version). The table listed various objections against particular paragraphs in each of the affidavits. These were: "Hearsay", "Non-lay non-specialist opinion", "Speculation", "Irrelevant", "Identification", "Coincidence/Tendency", "No probative value", "Unfairly prejudicial", "Improperly obtained", "Undue waste of time", "Misleading" and "Use". The terms appear to mirror to a large extent the bases upon which the Evidence Act 1995 provides objections to evidence can be made in courts in NSW.
The table marked a particular paragraph in an affidavit as falling within one of these objections. No detail was provided of the basis for any objection or, indeed, what material in a particular paragraph was alleged to fall within a particular objection. Most paragraphs in the affidavits were objected to on numerous grounds and some on all of the grounds set out above. Without more, the table is of little utility. The Tribunal is not bound by the rules of evidence and may inform itself in any manner as it thinks fit, subject to the rules of natural justice: s 38 Civil and Administrative Tribunal 2013. In addition, Dr Bolejko's agent, Paulina Wojciechowska, notified the Commissioner prior to the hearing that the officers would not be required for cross-examination (although in her submissions she sought to impugn parts of the affidavits). In the circumstances, the affidavits were admitted into evidence and given appropriate weight.

Issues to be determined

During the course of the proceedings before the Tribunal Dr Bolejko argued that the Tribunal does not have jurisdiction to review the decision made by the Commissioner as it concerns a matter between a State and a resident in another State and therefore invokes federal jurisdiction. Dr Bolejko sought various orders including that the proceedings be stayed and that the Tribunal decline to determine the application.
In relation to the substantive matters raised by the review application (if the Tribunal does have jurisdiction to deal with it), the issues for determination are:

whether the Commissioner's decision that she holds no information responsive to aspects of Dr Bolejko's access request is the correct and preferable decision; and
whether there is an overriding public interest against disclosure in relation to the information sought to be withheld.

The jurisdiction question

The parties made comprehensive written submissions on the jurisdiction question and agreed that this matter could be dealt with on the basis of the written submissions.
Dr Bolejko argues that the Tribunal has no jurisdiction to determine his application because it is a matter falling within s 75(v) of the Commonwealth of Australia Constitution Act 1900 (Cth) (the Constitution). There is no dispute that Dr Bolejko is a resident of the State of Tasmania and that the Commissioner has no separate legal identity or existence apart from the Crown in right of the State of New South Wales. It is well settled that that the Tribunal is not a "court of a State" within the meaning of Chapter III of the Constitution or s 39 of the Judiciary Act 1903 (Cth): Attorney General for New South Wales v Gatsby [2018] NSWCA 254. As a result, the Tribunal is unable to exercise "judicial power" in determining matters between a State and resident of another State.
The issue is whether the determination of Dr Bolejko's application for an administrative review of a decision made by the Commissioner under the GIPA Act is an exercise of judicial power.
This issue has been raised in other matters before the Tribunal by Dr Bolejko's agent, Ms Wojciechowska, in which she was the applicant. On each occasion the Tribunal has found that the determination of Ms Wojciechowska's application seeking review of a decision of the respondent in each matter, made under s 100 of the GIPA Act, is an exercise of administrative power. In Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179 at [17], after referring to a number of cases concerning the exercise of judicial power within the meaning of the Constitution, stated: These cases all support the conclusion that the Tribunal is not exercising State judicial power when determining an application under the GIPA Act. It is exercising administrative power because it is conducting a merits review of a government decision. The Tribunal cannot directly enforce the orders it makes and it must give effect to any relevant government policy unless that policy produces an unjust decision. It follows that NCAT has adjudicative authority to determine applications under the GIPA Act even if one party is the State of NSW and the other party is a resident of a different State.
It is not necessary in this matter to set out in detail the written submissions made by the parties concerning the jurisdiction issue. The submissions largely replicate those considered in the other matters before the Tribunal (see, for example, Wojciechowska v Commissioner of Police [2021] NSWCATAD 284, Wojciechowska v Commission of Police (No 2) [2021] NSWCATAP 311, Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298).
In Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298 the Appeal Panel at [41]-[51] comprehensively addressed the nature of the task before the Tribunal and reached the conclusion that in determining an application for administrative review of a decision made by an agency under the GIPA Act, the Tribunal is exercising administrative power, and not judicial power. I agree with those conclusions and am satisfied that the Tribunal has jurisdiction to deal with the application for administrative review of the Commissioner's decision made by Dr Bolejko.
I note that in Wojciechowska v Secretary, Department of Communities and Justice [2022] NSWCATAP 226 the Appeal Panel stayed the appeal pending judgment being delivered by the Supreme Court of New South Wales, Equity Division in proceedings number 2022/00155046. These proceedings relate to six other proceedings which had been instituted by Ms Wojciechowska in the Tribunal, each of which raised the same issue of jurisdiction as is raised in Dr Bolejko's application. Ms Wojciechowska seeks orders from the Supreme Court declaring that the Tribunal has no jurisdiction to determine each of those matters.
Dr Bolejko has not sought a stay in this application and I am satisfied that it may proceed.

Substantive application - the relevant law

Having determined that the decision made by the Commissioner under the GIPA Act is a decision in relation to which the Tribunal has administrative review jurisdiction, I now turn to the law relevant to the determination of the issues in that matter.
The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. Section 9 of the GIPA Act gives a person who makes an access application for government information a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information.
A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision that information is not held by an agency is a reviewable decision (s 80(e)).
The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the Commissioner: s 105(1) of the GIPA Act.

General principles relating to whether further information is held

Dr Bolejko asserts that the Commissioner holds further information falling within the scope of his access request in relations to Items 1 to 4 and Item 8. The Commissioner states that she holds no further information responsive to these aspects of Dr Bolejko's access request. The burden is on the Commissioner to prove that the government information applied for is not held by her.
A decision of an agency that it does not hold any further information responsive to an applicant's access application is an administratively reviewable decision by the Tribunal.
In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [44] the Appeal Panel summarised the Tribunal's task in reviewing a decision of an agency that it does not hold the information sought as follows: 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 ADR Act.
Section 53 of the GIPA Act imposes an obligation on an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources".
What constitutes a reasonable search will vary with the circumstances, however, key factors include the clarity of the request, the way the agency's record keeping system is organised and the ability to retrieve any information that is the subject of the request: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. That there may be some weaknesses in an agency's searches or failures in recordkeeping within the agency, does not necessarily lead to the conclusion that the search has not been reasonable: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49].
A cursory search which is unable to find the requested information is unlikely to satisfy the obligation imposed on an agency by s 53: Wojciechowska at [36].
As was stated by the Appeal Panel in Wojciechowska at [43], whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether a decision that "information is not held" is the "correct and preferable decision". 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.

Information on searches conducted

Matthew Smith is a Senior Advisory Officer at Infolink - the unit within the NSW Police Force which, among other things, deals with requests for information under the GIPA Act. Mr Smith states that the NSW Police Force stores documents in various formats on various systems, including:

The Computerised Operational Policing System (COPS) which is used to capture, record and store operational information and intelligence gathered by officers of the NSW police falls. This includes details of events, persons, organisations, locations, objects or vehicles that come to the attention of police.
The View Imagery Management System (View IMS) which is an electronic database used to store and retrieve evidentiary material relating to COPS events, including audio visual material, recordings of interviews and witness statements.
The e@gle.i system which is an electronic database used by detectives to organise and store information relating to criminal investigations.
The Exhibits and Forensic Information Miscellaneous Property System (EFIMS) which is used as an electronic log of exhibits captured during a criminal investigation.
The Records Management System (RMS) which is used to store administrative documents.
Hardcopy files and paper based records, for example, sworn police officers' notebooks which contain a handwritten record of information about their activities and investigations.

Mr Smith states that when an access application is received by Infolink, an Infolink officer will generally review the terms of the application to determine which command or area of the police force is likely to hold relevant information. The relevant area or command is then asked to conduct a search for the information requested in the form of a "trace request".
Details of the searches carried out in relation to each of the items sought by Dr Bolejko are set out below.
Mr Smith deposes to one matter which is relevant to a number of the Items which are considered below. He states that if Dr Bolejko had ever been the subject of a criminal investigation or charged with a criminal offence there would be a record of that in COPS. However, having conducted a search of COPS he states there is only one COPS event recorded against Dr Bolejko's name with reference number E 69413079 (the record relevant to Item 8). Mr Smith states that this record relates to a civil dispute between Dr Bolejko and his neighbours.
In his affidavit Chief Inspector Matthew McCarthy, who currently holds the position of Manager of the Spatial and Analytical Capability Unit of the State Intelligence Command, conducted a search for the purposes of preparing his affidavit for these proceedings and confirmed that there is a single COPS Event recorded against Dr Bolejko with reference number E 69413079. He also states that the event relates to a civil dispute between Dr Bolejko and his neighbours and that there is no indication in COPS that he has ever been the subject of a criminal investigation or has been of any interest to intelligence officers.
COPS Event E 69413079 was recorded by officers of the Blue Mountains Police Area Command (PAC). Mr. Smith states that a trace request was sent to the Blue Mountains PAC which confirmed that no formal investigation in respect of that event ever occurred.
In general, Dr Bolejko states that the Commissioner has not demonstrated that reasonable searches were undertaken to locate the information sought. He refers to the fact that the evidence provided by the Commissioner does not provide details of search terms used and it is therefore impossible to know what was actually searched for. He also refers to the fact that copies of the responses from relevant areas have not been provided. Dr Bolejko's agent stated that, just because information was not located, does not mean that it does not exist.

Item 1 - scans of Opal card

Dr Bolejko sought access to all information held "in connection with or arising out of" scans of his Opal card with the XXXX4608. The Commissioner contends that no information responsive to the request is held by the agency.
Mr Smith states that in relation to this item a trace request was sent to the Police Transport and Public Safety Command (PT&PSC) which is responsible for dealing with crime and anti-social behaviour on public transport. In response, the PT&PSC advised that the NSW Police Force does not store any information in connection with the scanning of Opal cards. The application used by officers for scanning Opal cards is administered by Transport for NSW and any information obtained as a result of a scan would be held by that agency. Inspector Cathryn Bradbury, Region Operations Manager of the PT&PSC, states that the information produced by the application upon the scanning of an Opal card is only ever displayed on screen and is not retained by any device operated by police nor saved to any NSW Police Force information system.
Inspector Bradbury states that, if the NSW Police Force requires information obtained by the scanning of a person's Opal card for the purpose of prosecuting an offence against that person or in connection with some other criminal investigation, this information must be obtained from Transport for NSW. She also states that in relation to an offence a new event will be created in COPS. The Commissioner refers to the evidence above that the only record in COPS concerning Dr Bolejko relates to a civil matter and does not relate to any criminal matter.
In his affidavit, Chief Inspector McCarthy states that there is no record of any request being made by the NSW Police Force (through its external information request management system iASK) to an external agency for information concerning Dr Bolejko's Opal card number.
Dr Bolejko states his card and that of many other people who were on the platform was scanned on the day in question. He queries what happened to the data collected and submits that the Commissioner has only made an assumption that any information in relation to his Opal card would be held by PT&PSC. He states it could be held elsewhere such as the Intelligence Command as, as set out in his statement dated 14 September 2021, he believes the occasion in 2014 when his Opal card was scanned was an intelligence gathering exercise by the NSW Police as large numbers of officers were present.

Item 2 - results from various databases of requests relating to Dr Bolejko

In item 2 Dr Bolejko seeks information resulting from requests made in certain databases on his name (spelt Krzysztof Bolejko or Bolejko Krzysztof), his car registration, Opal card and NSW drivers licence. The databases are: iAsk, ALAIN, ACID and SIG.
Mr Smith states that when dealing with the access request, a trace request was sent to the State Intelligence Command and also to the Blue Mountains PAC. No information responsive to this item was located by either.
Chief Inspector McCarthy states that the NSW Police Force maintains a record of all information requests made via iASK. He states that when preparing his affidavit for these proceedings he conducted a search of iASK to determine whether any information requests have been made with respect to Krzysztof Bolejko or the nominated vehicle registration number, driver licence number and Opal card number. Chief Inspector McCarthy states that there was no record of any iASK request having been made with respect to that person or things and there were therefore no results.
Dr Bolejko's request also sought information about results of requests for the same information from "ALAIN" or "ACID". Chief Inspector McCarthy states he is not aware of any information a system accessible by the NSW Police Force with the name or identifier "ALAIN". He assumed that Dr Bolejko was referring to "ALEIN" which is a secure extranet that provides a gateway for Commonwealth, state and territory law enforcement agencies and other regulatory authorities to access a number of databases and information services. One of these services is ACID, the Australian Criminal Intelligence database.
Chief Inspector McCarthy states that ALIEN/ACID is administered by the Australian Criminal Intelligence Commission (ACIC). All requests for information are made within that system and the NSW Police Force does not retain any record of such requests. Chief Inspector McCarthy states that in order to ascertain whether a user of ALIEN/ACID had made a request for information about a person, it would be necessary to apply to the ACIC for access to that information.
Chief Inspector McCarthy goes on to state that, if the results of any such requests were held by the NSW Police Force, he would expect to see an indication in COPS or View IMS. He states that his search only located the COPS event referred to above and there is no information or intelligence reports held in COPS in relation to Dr Bolejko. Chief Inspector McCarthy also searched for Dr Bolejko's name in e@gle.i, but there were no results.
In relation to that part of Item 2 which related to "SIG", Chief Inspector McCarthy states he is not aware of any such database. At the hearing Dr Bolejko's agent said that she found the term on the internet but could not provide any further information. Chief Inspector McCarthy goes on to state in his affidavit that Dr Bolejko may be referring to the State Intelligence Group, a former business unit of the NSW Police Force which was abolished in 2002. Chief Inspector McCarthy stated that any information in relation to Dr Bolejko that may have existed during the life of that business unit may be stored in the RMS or e@gle.i. His search of the RMS located only copies of correspondence from Dr Bolejko about his GIPA request. As noted in the previous paragraph a search in e@gle.i produced no results.
In Chief Inspector McCarthy's opinion, it is highly unlikely that the NSW Police Force holds the information requested in Item 2. He also states that no further searches could reasonably be undertaken that would identify any information responsive to this part of the access request.
Dr Bolejko points out that he asked for any results from requests for information from the various databases, but the response he has received only states that there were no requests, not that there were no results. He states that a request could have been destroyed but results could still exist. Dr Bolejko also stated that a senior officer, who did not need approval to make a request, could have obtained results.

Item 3 - fingerprinting 2014

Dr Bolejko seeks information held in connection with or arising out of fingerprinting conducted for a police clearance check in 2014. Dr Bolejko states in his statement dated 14 September 2021 that when he attended the police station in Miranda, he was asked to fill out and sign a form which was taken by the police officer. He states he did not see the officer destroy the form. He also states the fingerprinting was done with a computer scanner and he was provided with a printout.
Mr Smith's evidence is that a trace request was sent to Criminal Records, which is part of the In the Forensic Evidence and Technical Services Command (FETSC). The FETSC's responsibilities include criminal record and fingerprint based background checking in relation to employment, visa, and adoption applications. Mr Smith states that criminal records advised that no criminal history for Dr Bolejko could be located and his fingerprints are not held in any database accessible to the NSW Police Force.
Mr Smith states that his inquiries revealed that only certain types of fingerprint records are retained by the NSW Police Force. He states that, if Dr Bolejko had had his fingerprints taken at a local police station for the purpose of applying for an overseas visa, no record of those fingerprints would have been kept. Mr. Smith also states that he conducted a further search of RMS to see if there were any administrative records relating to Dr Bolejko but only located documents relating to his GIPA application.
Mr Smith is of the view that, in the absence of further details as to the purpose for which Dr Bolejko's fingerprints were taken, there are no further searches that can reasonably be undertaken to identify the information requested.
Dr Bolejko states that there was a print out of his fingerprints and therefore that was a government record. As I understand it, the submissions he made at the hearing were that, as there was a record produced, there should be a record of its destruction if it is no longer held. Dr Bolejko's agent referred to a document titled "Destruction of Records" from NSW State Archives and Records and stated that, if the document was destroyed, there should be a record of its destruction. She made allegations that the record must have been hidden from Mr Smith by the Blue Mountains PAC. She also stated that a request should have been sent to Miranda Police Station.

Item 4 - warnings and alerts

Dr Bolejko seeks copies of all "warning and alerts" in relation to him, his Opal card and his driver licence.
The evidence of Mr. Smith is that warnings and alerts contain information about a person that can be attached to a person's record in COPS. He states that searches have shown there are no alerts or warnings recorded against Dr Bolejko's name or his driver licence number. Mr Smith states that an Opal card is not a type of entity against which warnings or alerts can be recorded in COPS. Again, he states he is not aware of any additional searches that could be undertaken which would result in information being identified in response to item 4.
Dr Bolejko states that no information has been provided about the search terms and suggests that his first and surname could have been reversed and thus no results would have been found.

Item 8 - witness statements etc

Dr Bolejko seeks copies of any witness statements and or notes taken in order to prepare witness statements that mention him or his car. COPS Event E69413079 was released to Dr Bolejko with redactions in response to this request. Dr Bolejko maintains that there is further information responsive to this aspect of his access request. Issues relating to the redactions are dealt with below.
Mr Smith states that the Blue Mountains PAC advised that no statements were taken by police in respect of COPS event E 69413079. Senior Constable Porley, the officer who created the COPS event, entered the complainant's report directly into COPS and did not record any information in his official police notebook.
Mr Smith conducted his own search in relation to COPS event E 69413079, which he states is the only event in COPS relating to Dr Bolejko, and found no witness statements, notes or other documents stored or referred to in COPS in relation to this event. He states he also conducted a COPS search for vehicle registration number YYYY and there were no events or other documents linked to that vehicle.
Mr Smith states he is not aware of any other searches that could be undertaken which would result in information being identified in response to Item 8.
Dr Bolejko states that he does not accept the evidence provided by Mr Smith. He doubts that Senior Constable Porley has provided incorrect information or there may have been another person involved who recorded information. He states there could be other hard copy records in existence.

Conclusions on whether further information is held

As the Commissioner pointed out in the hearing, the obligation placed upon an agency is that it undertakes reasonable searches which allows an agency to make judgments about where information is likely to be held. In addition the information must actually be held by the agency. The evidence provided by Mr Smith detailed the areas within the police force to which he sent requests and those areas were identified as the likely areas where the information would be held. His evidence was supported by the evidence of Chief Inspector McCarthy. Mr Smith and Chief Inspector McCarthy also conducted their own searches where possible.
Dr Bolejko made various assertions during the hearing, such as that the scanning of his Opal card in 2014 was part of an intelligence gathering exercise. In relation to that Item he therefore asserts that searches should have been made of information held by the Intelligence Command. The basis of that assertion is unclear.
In relation to item 2 Dr Bolejko made the point that he had asked for results of requests for information from various databases but the evidence provided referred to the fact that no requests had been made for this information and did not deal with whether any results were found. I am satisfied that it is was reasonable, as a matter of logic, for the Commissioner to search for this information by request as that was the method most capable of revealing if any information was held. I also note that in relation to requests concerning ALIEN/ACID where requests for information are not recorded by the NSW Police Force, Chief Inspector McCarthy gives evidence that he searched for results but did not find any in COPS or View IMS.
In relation to the fingerprinting, Dr Bolejko confirmed at the hearing that the prints were required for an overseas visa. The specific evidence of Mr Smith is that, if the prints were taken at a local police station for the purposes of an overseas visa, no record would be retained.
I am satisfied that the respondent has undertaken reasonable searches as may be necessary to find the information held by the respondent that is responsive to the applicant's access application as at the date it received that application.
Hence, I am also satisfied that the respondent has established that he does not hold any further information that is responsive to the applicant's access request. Accordingly, I find that the decision of the respondent that he does not hold any further information is the correct and preferred decision.

Item 5 74 During the hearing Dr Bolejko raised issues in relation to the response he had received to his request for information in Item 5 - copies of his complete criminal history. Dr Bolejko was provided with print outs from COPS which showed nothing was recorded. The name that appears on the records is Bolejko Krzysztof and a Criminal Names Index (CNI) number 81*******8.

At the hearing, the Commissioner acknowledged that the names had been reversed but stated that the CNI number in all records relating to Dr Bolejko is the same and it appears that there has been an administrative error in entering his name into the COPS database. The Commissioner states that there are no records held in COPS in the name of Krzysztof Bolejko and Dr Bolejko was previously advised of that.
Dr Bolejko stated that he was advised in 2020 that there were no records in COPS in the name of Krzysztof Bolejko but was not told there were no criminal records in that name. In response, the Commissioner stated that all systems are linked to COPS and that the CNI number on all records produced is the same.
Dr Bolejko pointed out that he has not been provided with a print out in his correct name. The Commissioner maintains that in response to this Item, Dr Bolejko has been provided with all information held by the police.
While Dr Bolejko states that the Commissioner was aware of his concerns about the reversal of his first and second names, the Commissioner stated that she was not aware it was a live issue until the final of the hearing. Her communication with Dr Bolejko that there are no records in his name (Krzysztof Bolejko) was not before me. However, in light of his acknowledgment that he was informed that there were no records in COPS and the fact that all records referring to him have the same CNI, I am satisfied that he has been provided with all information response to this aspect of his request.

Items 6 and 7 - COPS and WebCOPS 79 Dr Bolejko sought printouts of his record from COPS and WebCOPS. He was informed that the two databases contain the same information and was provided with a copy with some information redacted. The complete record has now been provided to him. This record also is in the name Bolejko Krzysztof with a Criminal Names Index (CNI) number 81*******8.

Dr Bolejko stated that he does not accept COPS and WebCOPS are the same thing and referred to a copy of COPS Event E 69413079 received in other proceedings which he states looks different and has a different layout to the one released in this matter as evidence that the two systems are different.
The Commissioner refers to the evidence of Chief Inspector McCarthy about COPS and WebCOPS, and in particular that WebCOPS provides a web interface and improved navigation tools for the older mainframe COPS system. The web interface simply provides better access to the data stored in COPS and I am satisfied that records sourced directly from the mainframe (COPS) are the same as those sourced through the interface (WebCOPS). I am therefore satisfied that all information has been provided to Dr Bolejko in response to this aspect of his request.

Item 8 - witness statements and notes

As set out above, the Commissioner's decision on this Item was that, other than COPS Event E 69413079, no information was held by the NSW Police Force. COPS Event E 69413079 was released to Dr Bolejko with redactions. At the hearing Dr Bolejko stated that the Event report is not relevant to this aspect of his request and should not have been released in this matter as it is not within scope.
Dr Bolejko's representative confirmed at the hearing that, which she does not agree with the redactions, the only issue with respect to Item 8 is that further information is not held (see above).

Items 9 and 10 - searches

Dr Bolejko sought details of searches on his name (Krzysztof Bolejko or Bolejko Krzysztof) in COPS and WebCOPS. The Commissioner understood this request as being a request for an audit report and refused access. As noted above, the evidence of Chief Inspector McCarthy, which I accept, is that data in COPS and WebCOPS is the same. COPS is a mainframe database, while WebCOPS provides a web interface and improved navigation tools.
The Commissioner refused access to the audit report on the basis that there is an overriding public interest against disclosure of the information.

Overriding public interest against disclosure

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). Under the GIPA Act a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an "overriding public interest against disclosure" (s 9). There are two situations in which there will be an overriding public interest against disclosure. First, under s 14(1) of the GIPA Act, 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. That Schedule is not relevant to the current application.
In the second situation, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and the section sets out a non-exhaustive list of some examples of such considerations. The public interest considerations against disclosure are set out in a table in s 14 of the GIPA Act.
In the second situation, the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure.
Section 55(1) of the GIPA Act provides that, in determining whether there is an overriding public interest against disclosure of information, an agency is entitled to take into account the following "personal factors of the application": 1. the applicant's identity and relationship with any other person, 2. the applicant's motives for making the access application, 3. any other factors particular to the applicant.
The personal factors of the application may not be taken into account as considerations against disclosure in respect of cll 1, 6 or 7 of the Table.
Section 55(2) of the GIPA Act provides that 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.

Public interest considerations in favour of disclosure

The Commissioner refers to the general presumption in favour of disclosure as set out in s 12 of the GIPA Act. She states that disclosure of the audit reports could reasonably be expected to promote government accountability and transparency in the exercise of the law enforcement functions of the NSW Police Force, in particular with respect to the audit processes and around use the COPS system. Some of the information contained in the report is the personal information of Dr Bolejko.
Dr Bolejko puts forward several matters which he states are public interests in favour of disclosure. These are primarily contained in a statement of Ms Wojciechowska dated 14 September 2021. In summary, these relate to the exposure of misconduct or negligent, improper or unlawful conduct on the part of the NSW Police Force and/or individual officers.

Public interest considerations against disclosure

The Commissioner submits that the following public interest considerations against disclosure as set out in the Table to s 14 of the GIPA Act apply: 1. prejudice the effective exercise of the agency's functions: cl 1(f) 2. prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results: cl 1(h) 3. prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law: cl 2(b).
Each of the considerations against disclosure set out in the table in s 14 of the GIPA Act have the requirement that disclosure of the information could reasonably be expected to have the nominated effect.
The words "could reasonably be expected to" are to be given their ordinary meaning (Attorney-General's Department v Cockcroft (1986) 10 FCR 180). In that case, Bowen CJ and Beaumont J explained, at 190, that the words: ... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Leech v Sydney Water Corporation [2010] NSWADT 298 the Tribunal referred to a number of cases which had considered the term "could reasonably be expected to" and stated at [25]: The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.
The public interest considerations against disclosure require an objective assessment as to whether the claimed effects could be expected to arise. This is ultimately a question of fact to be established to the relevant standard of proof, on the balance of probabilities (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]).
Several of the public interest considerations against disclosure require that there be some relevant "prejudice" to the agency. "Prejudice" is to be given its ordinary meaning, that is, to cause detriment or disadvantage, or to impede or derogate from: Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to various authorities, the Appeal Panel said at [59]: Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.
In his affidavit Chief Inspector McCarthy provides information about the COPS system which is used to record police activities, including reported criminal incidents and other incidents attended by or reported to police. He states that COPS also contains information which has been provided to police on a confidential basis by other agencies or members of the public. In carrying out their functions officers are regularly required to undertake searches of the COPS system. The Commissioner submits that the use of COPS by police to access and enter information is a key part of the investigatory methods employed by police in discharging their functions.
Chief Inspector McCarthy states that the COPS system is able to be audited and audits are used primarily as a corruption prevention strategy within the police force. In terms of Mr Bolejko's request, Chief Inspector McCarthy states that, in order to determine who has accessed a person's records or event reports in COPS, a reverse audit can be run. He states that this would involve conducting an audit on the person's name or CNI number to determine who, if any, of the authorised users of COPS have accessed the person's record or event reports to which the person is linked.
The Commissioner submits that the disclosure of an audit report could reasonably be expected to prejudice the effective exercise by the NSW Police Force of its functions: cl 1(f). In his affidavit Chief Inspector McCarthy set out a number of scenarios where release of an audit report would enable persons to become aware whether they have been or are under investigation by the NSW Police Force, the nature of that investigation and the level of attention directed towards their activities. He further states that an applicant could use the information contained in an audit report to modify their behaviour to avoid further scrutiny.
Chief Inspector McCarthy also gives evidence that the NSW Police Force uses the reverse audit process to monitor and reduce the risks associated with improper and unlawful computer access. If a particular officer is suspected of misusing COPS, targeted auditing of that officer's COPS access can be carried out. Chief Inspector McCarthy states that an audit report would not usually be created for any purpose other than routine auditing for corruption prevention or as part of a complaint investigation. The Commissioner submits that the release of an audit report could reasonably be expected to prejudice the conduct or integrity of audits of particular officers' use of the COPS system by revealing their conduct: cl 1(h).
In addition to his concerns that release of an audit report would enable a person to deduce whether they were being investigated and the nature of that investigation, among other things, Chief Inspector McCarthy is concerned that information relating to when a person's details were accessed could compromise the identities of informants. He states that the NSW police relies heavily on information provided by members of the community in discharging its functions. He states its release could also lead to officers who have accessed COPS being targeted.
Furthermore, Chief Inspector McCarthy states that, even if there is no ongoing investigation into a person, the release of an audit report could compromise a later investigation if a later request for the same information was refused, thus enabling the person to deduce that they had come to police attention. Disclosure of the fact that a person is not the subject of an ongoing investigation may also assist a person who is engaging in unlawful activities to continue to evade the attention of police. Chief Inspector McCarthy states that the disclosure of audit reports could assist applicants to determine whether, and from what command, officers were conducting inquiries about them which would prejudice the prevention, detection, investigation of contraventions or possible contraventions of the law. The Commissioner submits that the consideration in cl 2(b) applies and should be given considerable weight.
Dr Bolejko submits that the Commissioner has not established that the effects alleged could reasonably be expected to occur. He states that the evidence provided by the Commissioner is irrelevant, of no probative value, relies on speculation and is confusing. In addition, he states he did not apply for an audit report but asked for information on how many times information about him had been searched for and by whom.
I accept the evidence of Chief Inspector McCarthy that a reverse audit is the most appropriate way to identify who and when Dr Bolejko's COPS records have been accessed.
The Tribunal has previously found that the release of an audit report could reasonably be expected to prejudice the functions of the NSW Police Force in the ways outlined by Chief Inspector McCarthy in his evidence: Choi v Commissioner of Police [2021] NSWCATAD 156 at [241-242]; Rivero v Commissioner of Police, NSW Police Force [2019] NSWCATAD 115 at [55]-[60]; Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 at [76]-[77].
In Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 at [54] the Appeal Panel accepted that the release of an audit report detailing all people have used the COPS database to conduct searches of an applicant's details could "put at risk the security, integrity and confidentiality of the auditing processes and standards of the agency". In Choi at [241]-[242], Rivero at [56]-[57] and Denyer at[76]-[77], the Tribunal similarly found that release of an audit report could reasonably be expected to have this effect as set out in cl 1(h).
The Tribunal has also consistently stated that release of the type of information sought by Dr Bolejko could reasonably be expected to prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law: cl 2(b). I also am satisfied that release could reasonably be expected to have the stated effects that Chief Inspector McCarthy has identified in his affidavit.
I therefore agree with the Commissioner that disclosure of the audit report could reasonably be expected to prejudice the: 1. effective exercise of the Commissioner's functions; 2. conduct, effectiveness or integrity of any audit, test, investigation or review; and 3. prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law.
It is not necessary that the Commissioner establishes that this expected prejudice is in relation to Dr Bolejko. As the Appeal Panel held in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [26] the considerations in the Table to s 14 are to be examined at a "broader operational level".
While both Dr Bolejko and Ms Wojciechowska feel very strongly they have been the victims of misconduct on the part of police and allegations of corruption are indeed a serious matter, in my view, the public interest considerations against disclosure of the audit report outweigh those considerations in favour of its disclosure. The decision to refuse to release the audit report is therefore the correct and preferable one and should be affirmed.

Orders 1. The decision under review in respect of items 6 and 7 of the access is varied to provide access to the information in full. 2. The decision under review is otherwise affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 08 February 2023

Australia Constitution Act 1900(Cth)

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (14)