Carney v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-09-08

REASONS FOR DECISION

This is an application for administrative review of a decision of the Commissioner of Police (the Respondent) concerning an application for access to information made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
The Respondent determined that the requested information was not held by the agency.
For the reasons that follow, I have decided to set aside the decision made by the Respondent on 4 May 2023 and remit the matter for reconsideration in accordance with certain directions.

Background

According to his written statement, in the early hours of Saturday 25 February 2023, Mr Carney (the Applicant) fell on Circular Quay West and sustained a leg injury. He was in close proximity to the Rocks Police Station and was assisted into the Station by Police, who called an ambulance. He stated that he had requested an event number but did not receive one. He remained in the lobby of the Station for several hours before being transported to hospital by ambulance.
On 10 March 2023, the Applicant made an access application under the GIPA Act seeking the following information (the requested information): Request 1 = A digital copy of the external CCTV cameras footage of The Rocks Police Station (footage 1 and 2), times within 12am and 1am Saturday 25Feb2023, footage 1 and 2 being perhaps 15 minutes total duration of footage; internal CCTV cameras of The Rocks Police Station (footage 3), times within 1am and 4am Saturday 25Feb2023, footage 3 being perhaps 30 seconds total duration of footage) … Footage 1 = External CCTV camera (Western focus CCTV camera) at External main front door of The Rocks Police Station. Footage 2 = External CCTV camera (Eastern focus CCTV camera) at External main front door of The Rocks Police Station. The time of footage 1 and footage 2 is in a 15 minute period between approx. 12am and 1am Saturday 25Feb2023, during which I, Frances Carney, walk down the road, slip and fall, and I am (kindly) carried into The Rocks Police Station. Requested START TIME of footage one and footage 2 = When I, … am walking from the top of the road (George Street intersection) eastwards down the incline towards Circular Quay along the road Circular Quay W (road in front of the main police station door) towards the metal plate of Wilson Parking Entry, within 20 metres of stepping onto that metal plate until the time that I slip and fall and hand-crawl to sit myself by a concrete pillar at the Wilson Parking entry stand. Requested END TIME of Footage 1 and Footage 2. When I… am sitting propped against a concrete pillar prior to being kindly carried by others (approx. 8 metres distance carry) into The Rocks Police Station hence I go out of view of the external CCTV cameras. Footage 3 = CCTV camera inside The Rocks Police Station only showing myself, …, footage that covers the seating area of The Rocks Police Station "public reception area" where I … was safely lain across and resting on several seats inside the station. Requested START TIME and END TIME of footage 3 = Any 30 seconds duration footage (between approx. 1am and 4am Saturday 25Feb2023) that shows myself … resting on my back with both legs on the seats at The Rocks Police Station "public reception area" (Police may choose whichever 30seconds of that few hours that is their preferred for privacy of others etc).

Jurisdiction

The Applicant sought review of the Internal Review Decision of 4 May 2023 that the requested information was not held by the agency. This is a reviewable decision under s 80(e) GIPA Act. Section 100(1) of that Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
An application for administrative review of "an administratively reviewable decision" may only be made by an interested person (s 55 ADR Act). An administratively reviewable decision is "a decision of an administrator over which the Tribunal has administrative review jurisdiction" (s 7 ADR Act). The Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision" (s 9 ADR Act). An "administrator" is the person or body that makes the decision under enabling legislation (s 8 ADR Act).
Accordingly, the Tribunal has jurisdiction to hear and determine this application.

Legislative framework

In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide (s 63(3) ADR Act): (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Section 58(1) of the GIPA Act sets out how access applications for government information are decided, including by deciding to provide access to the information (s 58(1)(a)), deciding that the information is not held by the agency (s 58(1)(b)) or deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information (s 58(1)(d)).
The obligations of an agency in respect of the searches it must undertake in response to an access application are set out in s 53 of the GIPA Act: 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.
Apart from certain exceptions which are not relevant here, the burden of establishing that a reviewable decision is justified lies on the agency (s 105(1) GIPA Act).

Process for determining whether searches are reasonable

The process for determining the adequacy of searches has been considered in a line of authority which was canvassed by the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska AP). In that decision the Appeal Panel considered the two-step approach which had previously been taken to the question of whether reasonable searches had been undertaken. The Appeal Panel found that there was no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake "reasonable searches" was enlivened only where the access applicant established reasonable grounds to believe that the requested information existed. As a result, the Appeal Panel found that the previously applied two-step process was plainly wrong ([at 38]-[39]).
The Appeal Panel held: 42 The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 43 In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any 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.
This decision is binding on the Tribunal had has been followed in the Tribunal since (see for example Wojciechowska v Commissioner of Police [2021] NSWCATAD 210 and Webb v Goulburn-Mulwaree Shire Council [2023] NSWCATAD 194).
In determining the reasonableness of searches, relevant considerations were identified in Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 at [30] (which was cited with approval in Amos v Central Coast Council [2019] NSWCATAD 226 at [14]): …the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the Applicant or those that can be inferred reasonably by the agency from any other information supplied by the Applicant.
In Robinson v Commissioner of Police [2014] NSWCATAP 73, the Appeal Panel at [28] observed that, in establishing whether adequate searches had been made, evidence must be shown as to the nature of searches undertaken, the means of the searching used and whether systems of electronic retrieval have been used.

Issues:

As a result of the legislation and case law, particularly as set out by the Appeal Panel in Wojciechowska AP at [44], the Tribunal must determine: 1. the basis of the agency's reasons, the Applicant's submissions and any relevant factual issues including those derived from s 53(1) - (5) GIPA Act; 2. whether the agency has proved any relevant factual issues on the balance of probabilities; 3. any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held; 4. what the correct or preferable decision is; 5. whether the agency's decision should be affirmed, set aside or varied (s 63(3) ADR Act).

The basis of the agency's reasons; the Respondent's evidence and submissions

The basis of the Respondent's reasons was that the CCTV footage sought by the Applicant had been automatically deleted and so was no longer held by the agency.
The Respondent relied on a written statement by Ian Steptoe dated 4 August 2023 (the Steptoe Statement). Mr Steptoe is a Senior Advisory Officer for the Infolink Unit in the NSW Police Force and the person who made the Internal Review Decision.
Mr Steptoe attested (at [19] - [26]) that upon receiving the Applicant's request for an internal review, he reviewed the file for the Original Decision, including the enquiries with Sydney City Police Area Command and The Rocks Police Station. He also discussed the case with Ms Hill, who, he said, had conducted searches with Sydney City Police Area Command and The Rocks Police Station for footage which was the subject of the Applicant's second access application. He searched the NSW Police Force Computerised Operational Policing System (COPS) database for a record of the incident said to be recorded in the requested footage. He also searched the electronic Records Management System (RMS) in case any record relating to the incident or footage was held there. Those enquiries confirmed that no record of the CCTV footage requested by the Applicant was held and that it had been disposed of. Since the proceedings commenced, he had again reviewed the files relating to the two access applications and conducted searches on COPS and RMS with the same outcome.
Attached to the Steptoe Statement were: 1. A copy of the access application lodged on 10 March 2023; 2. An email dated 20 March 2023 from GIPATRACE to SYDCITYGIPA attaching the Applicant's access application which set out: A request for NSW Police Force documentation under the [GIPA Act] has been received by this office and it is considered that the required documents would be held at your PAC/PD/Unit. Your command is required to search for and provide my office with any records held that are captured by this GIPA application. 1. Email correspondence dated 21 March 2023 from SYDCITYGIPA requesting further information regarding the Applicant, such as a date of birth or event number; and the response on that day from GIPATRACE noting that the Applicant did not appear to have an event recorded in COPS, noting a COPS profile number and summarising the request as: … he is requesting the footage from CCTV cameras on 25 Feb 2023 between 12:00 AM and 1:00 AM from The Rocks Police Station. If the three footage is available please send them to me, if the footage are not held, please let me know as well. Please note I will make a decision whether to release the footage or withhold it after undertaking public interest test. So if there are other persons captured in the footage, I may make a decision to not release it. 1. An email dated 29 March 2023 from SYDCITYEXO which states: In response to the below GIPA request, I have made inquiries with the Station Controller Sergeant at The Rocks Police Station. Unfortunately with regards to external CCTV of police stations, this footage is only kept for a 30 day period - Which obviously means this footage has since been deleted automatically from our system. They have also inquired about the internal footage requested being - Internal CCTV cameras of The Rocks Police Station (footage 3) times within 1am and 4am Saturday 25Feb2023 and that too is no longer available. The only footage which is saved for a longer duration is any internal custody CCTV which is kept for a six month period, but that is not the request in this instance. I just got off the phone with a Sergeant from The Rocks who has confirmed this footage no longer exists. 1. The Original Decision dated 31 March 2023 which described the searches for information as: … a search request was sent to Sydney City Police Area Command and The Rocks Police Station to locate the CCTV footage falling within the scope of your application. … In response to the search request The Rocks Police Station have advised that they did not retain any footage that falls within the scope of your application. 1. An email regarding the second access application made by the Applicant dated 19 April 2023 from Ms Hill, Information Review Officer at InfoLink Communication Services which states: I referred to the response from the Command in relation to GIPAA-2023-0318279 where they have advised that external CCTV of police stations is only kept for 30 days. As are now out of the 30 day period it is unlikely that the footage you are requesting is held. 1. The Internal Review Decision dated 4 May 2023 described the searches for information as follows: Having regard to the specific nature of the information requested and the likely location of that information in the agency, your application was forwarded to the Sydney City Police Area Command to locate the CCTV footage falling within the scope of your application. Searches were [conducted] by it and The Rocks Police Station. No CCTV could be located. The explanation for this outcome is that the CCTV recording from 25 February 2023 has been disposed of (ie overwritten or otherwise deleted) in accordance with Functional Retention Disposal Authority: DA221. This Disposal Authority is approved under section 21(2)(c) of the State Records Act 1998 following product approval by the Board of the State Archives and Records Authority of New South Wales in accordance with section 21(3) of that Act. Paragraph 1.9.0 of DA220 provides that police must keep CCTV footage of the non-custodial areas of police premises for 31 days before it is destroyed. I attached the disposal authority for your information. the relevant sections are at pages 29 and 30. 1. Functional Retention Disposal Authority: DA221 (the Disposal Authority) sets out in part (emphasis is in the original): This retention and disposal authority covers records controlled by the public office and applies only to the records or classes of records described in the authority. The authority should be implemented as part of the records management programme of the organisation. Two primary objectives of this programme are to ensure that records are kept for as long as they are of value to the organisation and its stake holders and to enable the destruction or other disposal of records once they are no longer required for business or operational purposes. … Records approved for destruction Records that have been identified as being approved for destruction may only be destroyed once a public office has ensured that all other requirements for retaining the records are met. Retention periods set down in this authority are minimum periods only and a public office should keep records for a longer period if necessary. Reasons for longer retention can include legal requirements, administrative need, government directives and changing social or community expectations. A public office must not dispose of any records where the public office is aware of possible legal action (including legal discovery, court cases, formal applications for access) where the records may be required as evidence. … Item numbers 085, 086 and 087 of the Disposal Authority set out: 085 CCTV incidents at police premises Audio & video/visual surveillances and closed-circuit television (CCTV) records relating to incidents or events taking place at police premises which are used for evidentiary purposes. Includes: - events taking place while offenders are in police custody - security breaches - injuries to staff, visitors - property damage. Note: action completed includes after finalisation of investigation processes or court proceedings or appeals processes, whichever is later. Retain minimum of 10 years after action completed, then destroy 086 Routine surveillance of custodial areas Audio & video/visual surveillances and closed-circuit television (CCTV) records relating to the routine surveillance of custodial areas in police premises where the records are not used for evidentiary purposes. Also includes surveillance audio and closed circuit television (CCTV) records where incidents are reported from non-custodial areas under Standard Operating Procedures. Note: Custodial areas are defined as those areas routinely used for the charging, processing and detention of persons in custody including Police Charge Rooms, all prisoner holding and transfer areas, Breath Analysis Rooms, Interview Rooms, and Drug Exhibit Storage Areas. Note: if records are required for evidentiary purposes then retain in line with DA220-085. Retain a minimum of 6 months, then destroy or delete or reuse 087 Routine surveillance of non-custodial areas Audio & video/visual surveillances and closed-circuit television (CCTV) records relating to the routine surveillance of non-custodial areas in police premises where the records are not used for evidentiary purposes or where no incident was reported under standard operating procedures. Note: Non-custodial areas are defined as those areas generally open to and accessed by the general public such as foyers, external areas, external perimeter security cameras in car parks and holding yards for vehicles. Where incidents are reported under Standard Operating Procedures the surveillance audio and video/visual closed-circuit television (CCTV) records should be in accordance with DA220-086. Retain for a minimum of 31 days, then destroy, delete or reuse. 1. And copies of further email correspondence with the Applicant.
The Applicant cross-examined Mr Steptoe at the hearing. In response to the matters he put to Mr Steptoe, Mr Steptoe attested that the searches and the decision on the access application were completed in a timely manner. Ten days after the application was lodged, enquiries were made. The application had been allocated to an information officer who had undertaken some work and this did not disclose inactivity on their part. The Applicant put to Mr Steptoe that the Respondent had waited until the footage would have been deleted before making searches. Mr Steptoe replied that the GIPA timeframes were met.
The Applicant referred Mr Steptoe to item numbers 085 and 086 of the Disposal Authority and noted that a taxi driver [name supplied] made a report three minutes after the Applicant arrived and was given an event number. He asked whether Mr Steptoe had searched the event numbers from that night as to whether they held footage of the incident. If so, the Applicant put to Mr Steptoe that the footage should have been kept for at least 6 months. Further, item number 085 required relevant footage to be held for 6 months. Mr Steptoe replied that there was no reason to search for the taxi driver's event number and no reason to believe there was any information held. He was satisfied that reasonable searches had been made. Nothing was tagged to the Applicant's name. The Applicant asked whether Mr Steptoe was aware that no event had been issued. Mr Steptoe replied that he knew the Applicant had said so but he wanted to make sure in case one had been issued.
The Applicant referred to the Steptoe Statement at [13]: 13. On 29 March 2023 the Infolink Unit was advised by the Sydney City Police Area Command External footage for police stations is only kept for 30 days meaning the footage had already been automatically deleted.
The Applicant noted that the Disposal Authority required the footage to be retained for a minimum 31 days; a public office was required not to dispose of records for which an application for access had been made and an objective of the program under which the Disposal Authority was made was to ensure that records are kept for as long as they are of value to the organisation and its stakeholders.
Mr Steptoe was asked whether there was a record of the footage being destroyed. He responded that it was his understanding that CCTV was recorded on a digital system that was programmed to overwrite once the time was passed. Any documents evidencing this policy were not available to Infolink. The system was set up to record for 31 days. There were Standard Operating Procedures which applied but he was unable to speak to the detail of those.
The Applicant asked whether there was a possibility of a backup copy of the footage. Mr Steptoe was of the view that this would have required an operator to isolate and copy the footage and he was not aware of any other method by which a backup would be made.
Drawn from the written and oral submissions, the Respondent submitted that the decision that the requested information was not held was justified on the basis that reasonable searches had been made, the footage had been deleted in accordance with the Disposal Authority and the Tribunal should find that the correct and preferable decision was to affirm the decision under review.
The Respondent submitted that the application for access had been determined within the relevant period and reasonable searches had been undertaken. Regarding the references made to item numbers 085 and 086 of the Disposal Authority, the Respondent contended that the Applicant's fall did not occur on police premises and did not come within item number 085. No COPS incident was recorded and so the internal footage request did not come within item number 086.
The Respondent submitted that they had provided their best evidence of the searches. Providing forensic evidence would be contrary to s 53(5) of the GIPA Act. The Respondent had not been required to search in any electronic backup systems because the footage had been destroyed in accordance with the Disposal Authority.
The Respondent's written submissions appeared both to rely on the two-step process which had been found to be "plainly wrong" in Wojciechowska AP at [39], and to rely on Wojciechowska AP in outlining the steps that the Tribunal should take in reviewing a decision that the requested information is not held by the agency. The Respondent withdrew the submission regarding the two-step process at the hearing and submitted that nevertheless the Tribunal should find that the Respondent had undertaken reasonable searches in response to the Applicant's access application.
The Respondent submitted that the searches outlined in the Steptoe statement (at paragraphs [20] - [23]) were: 1. following receipt of the Applicant's request for an internal review, Mr Steptoe reviewed the file for the Original Decision, including the inquiries with Sydney City Police Area Command and The Rocks Police Station; 2. Mr Steptoe discussed the case internally with Ms Hill, who had conducted searches with Sydney City Police Area Command and The Rocks Police Station for footage the subject of the Second Access Application; 3. for abundant caution, he searched the COPS database for a record of the incident said to be recorded in the requested footage, and the electronic Records Management System in case any record relating to the incident or footage was held there.
The Respondent submitted that these inquiries confirmed that the CCTV footage requested by the Applicant was not held and that it had been disposed of. The decision that the information was not held by the agency was made in accordance with the Disposal Authority and accordingly the Tribunal should affirm the decision.

The Applicant's submissions and evidence

The Applicant attached the following documents to his affidavit of 11 July 2023: 1. Emails requesting further details regarding the staff member on duty at the time of his accident and a police event number as well as further diagrams showing the location of the external CCTV cameras; 2. a copy of the Ambulance Electronic Medical Record which showed that an ambulance had been dispatched to collect the Applicant at 03.13 on 25 February 2023. It described the case scene as The Rocks Police Station, 132 George Street the Rocks and the destination as Royal Prince Alfred Hospital; 3. an email from the applicant regarding an amendment to his application; and 4. his request for internal review.
Drawn from his written statement, his oral submissions and issues brought to the attention of Mr Steptoe, the Respondent and the Tribunal during cross-examination, the Applicant's grievance in relation to the Internal Review Decision was threefold: 1. the searches were not reasonable; 2. the searches were not timely; and 3. the requested information was not disposed of in accordance with the Disposal Authority.
The Applicant sought orders that : 1. The Respondent provide him with the footage he had sought in the access application; 2. The Respondent conduct further searches; 3. The Respondent reimburse him for the funds he had expended in pursuing the GIPA application.

Any relevant factual issues including those derived from s 53(1) - (5) GIPA Act; any further evidence; whether the agency has proved any relevant factual issues on the balance of probabilities

The decision under review relied on information contained in the email of 29 March 2023 which advised that enquiries with the Station Controller Sergeant at The Rocks Police Station indicated that footage from external CCTV of police stations was only kept for a 30 day period "which obviously means this footage has since been deleted automatically from our system." Enquiries had also been made about the internal footage requested but this was also no longer available.
However, the email of 29 March 2023 is evidence of only preliminary enquiries. The Respondent has not provided any evidence to show that a search for the requested information was made. Instead, the decision under review relies on an assumption that because "external CCTV footage is only kept for a 30 day period" this "obviously means this footage has since been deleted automatically from our system" rather than any reasonable search for the requested information.
The Respondent submitted that the decision under review also relied on a discussion Ms Hill who had conducted searches in relation to the Applicant's Second Access Request. However Ms Hill's email to the Applicant dated 19 April 2023 shows that she also relied on the same information that "external CCTV footage is only kept for a 30 day period" to make the assumption that, as 30 days had since passed, "it is unlikely that the footage you are requesting is held. This email does not specify that Ms Hill made any additional searches.
Mr Steptoe made additional searches in COPS and RMS but was aware at the time that no event number had been issued. Whilst it might have been prudent to make these additional searches, they did not constitute reasonable searches on their own, and they were no substitute for the reasonable searches necessary to find any of the requested information that was held by the Respondent when the application was received, as required by s 53(2) of the GIPA Act.
At the hearing, Mr Steptoe stated his understanding to be that CCTV footage was automatically wiped after 31 days. However he was unable to identify the basis for that understanding and he could not specify the policy or Standard Operating Procedures which would require the CCTV footage to be deleted automatically after 30 or 31 days. Without such evidence, the decision that the requested information is not held by the agency relies on presumptions, not reasonable searches.
The Respondent has not provided evidence of any real or reasonable searches being made for the requested information, as opposed to assumptions that the CCTV footage would have been deleted once 30 days had passed. The Respondent provided no documentary evidence of any policy or Standard Operating Procedure that footage was automatically deleted after 30 or 31 days. This conclusion was stated to result from enquiries with the Station Controller Sergeant at The Rocks Police Station and Mr Steptoe's understanding, without being able to specify any relevant Standard Operating Procedures to verify any such procedure. Yet it was applied as an absolute fact with little apparent effort being expended to ascertain whether the requested information might have been held by the Respondent when access application was received or might still be in existence at the time that the decision under review was made.
Considering the evidence provided as a whole, the Respondent has not established that it undertook reasonable searches to find the requested information that was held by the Respondent when the application was received (s 53(2) GIPA Act). As a result, the Respondent has not shown, on the balance of probabilities, that the decision that the requested information was not held by the agency was justified.
For completeness, the Applicant further submitted that the Respondent had deliberately delayed its decision to thwart the access application. There is no evidence to suggest deliberate time wasting and the decision was made within the GIPA timeframes.
The Applicant also made submissions regarding the Disposal Authority. Alleged weaknesses in an agency's searches or failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]. I have already found above that the Respondent has not established that the searches were reasonable on the face of the evidence provided by the Respondent. However, the question of compliance with the Disposal Authority is relevant to what is the correct or preferable decision at the present time, and whether there is any value in requiring reasonable searches to be made now, as set out below.

Is there any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held?

According to the Steptoe Statement, the files were reviewed and additional searches in COPS and RMS were made prior to the Tribunal proceedings. As noted throughout the proceedings, no event number was issued for the Applicant and these searches were unhelpful. No evidence has emerged since the decision under review was made tending to prove that the requested information is held.

What is the correct or preferable decision?

In determining an application for review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (s 63(1) ADR Act). For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) ADR Act).
In YG & GG v Minister for Community Services [2002] NSWCA 247 at [25], Hodgson JA (with whom Foster and Brownie AJJA agreed) held: 25. … my opinion is that, on a merits review by the Tribunal or by the Appeal Panel under s.115, there is no two-stage process: the issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken. …
The next question therefore is: what is the correct and preferable decision now?
The Respondent was required to undertake such reasonable searches as may be necessary to find any of the requested information applied for that was held by the Respondent when the application was received (s 53(2) GIPA Act). It was not contested that the requested information was held by the Respondent at the time that the access application was lodged, being only 13 days after the Applicant's fall. On any of the information available, there was no basis for the requested information to have been destroyed at that time. It is also clear from the email correspondence attached to Mr Steptoe's statement that the Respondent was aware of the access application prior to the date by which it was assumed to have been deleted.
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; s 53(4) GIPA Act.
Mr Steptoe was aware of and referred to the Disposal Authority in the decision under review. That Disposal Authority required that the agency must not "dispose of any records where the public office is aware of possible legal action (including legal discovery, court cases, formal applications for access) where the records may be required as evidence." The Respondent was aware of a formal application for access from the Applicant before the 30 day period by which it was assumed to have been deleted had expired. As a result, the Disposal Authority required that the Respondent must not dispose of the requested information.
Even if the requested information did come within item 087 of the Disposal Authority, under item 087 the CCTV footage was required to be retained for a minimum of 31 days, not to be automatically deleted after 30 days. If the information that the footage was automatically deleted after 30 days were to be relied upon, the destruction of the requested information (footage 1 and 2 - from the external cameras) would be inconsistent with item 087 of the Disposal Authority on that basis.
As to footage 3 (from the waiting room), the Applicant put to Mr Steptoe that a taxi driver had made a complaint shortly after the Applicant arrived and was given an event number. This raised further doubt about whether footage 3 should have been retained for at least 31 days under item 087 or for at least 6 months under item 086. Item 086 applies to CCTV records "where incidents are reported from non-custodial areas under Standard Operating Procedures". Conceivably, the waiting room of The Rocks Police Station fits that description, considering this is an area where events are reported to police. In such circumstances, the internal footage might possibly still have been retained at the time that both the Original Decision and the Internal Review Decision were made.
Over six months have passed since the Applicant's fall occurred and even if footage 3 had been retained for six months under item number 086 of the Disposal Authority, it might have been deleted by now. However as set out above, if the requested information was destroyed, it was not disposed of in accordance with the Disposal Authority: once an access application was lodged, the Disposal Authority prohibited the information from being destroyed and the minimum period for retaining information caught under item 087 was 31 days (not 30 days). Further, footage 3 might have been caught under item 086 and required to have been retained for a minimum of 6 months.
The Disposal Authority is approved under s21(2)(c) of the State Records Act 1998. Section 21 of that Act states: 21 Protection measures (1) A person must not - (a) abandon or dispose of a State record, or … Maximum penalty - 100 penalty units. (2) None of the following is a contravention of this section - … (c) anything done by or with the permission of the Authority or in accordance with any practice or procedure approved by the Authority either generally or in a particular case or class of cases (including any practice or procedure approved of under any standards and codes of best practice for records management formulated by the Authority), …
As the Respondent has not shown that the information was destroyed in accordance with the Disposal Authority, the Respondent can be required to search for information that might be held in an electronic backup system under s 54(4) GIPA Act.
As a result of the findings set out above, the Respondent has not demonstrated to the civil standard that reasonable searches were made under s 54(2) GIPA Act. Further the Respondent has not demonstrated that any CCTV footage has been destroyed in accordance with the Disposal Authority and that s 54(4) should apply.
As a person who has made an access application, the Applicant has a legally enforceable right to be provided with access to the requested information, unless there is an overriding public interest against disclosure of the information (s 9 GIPA Act).
If reasonable searches undertaken at the present time disclose that the requested information has been destroyed, the Respondent can be required to search for the information in records held by the Respondent in an electronic back up system (s 53(4) GIPA Act). The only evidence regarding the possibility of information held by the agency in an electronic back up system was from Mr Steptoe who indicated that his understanding was that the footage would need to be isolated and copied. The Respondent did not provide evidence that there would not be records in an electronic back up system, or that a search of any backup system would be fruitless.
The object of the GIPA Act is set out in s 3(1): 1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
In the current circumstances it is possible that the request information, or part of the requested information, has been retained, or that it has been deleted recently but might still be held in an electronic backup system. In light of the object of the GIPA Act to encourage the proactive public release of government information by agencies, the correct and preferable decision is to require the Respondent to undertake reasonable searches, including of its electronic backup systems if the requested information cannot be found.

What orders should be made under s 63(3) of the Administrative Decisions Review Act?

The decision made by the Respondent on 4 May 2023 will be set aside and remitted for reconsideration in accordance with the Tribunal's directions as set out in the orders below.
The Applicant further sought reimbursement of his expenses in pursuit of his access application. As noted at the hearing the Tribunal does not have the power to make money orders under the GIPA Act. In the event that the Applicant can show special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) it is open to him to seek reimbursement for his costs of the proceedings. Accordingly I have set a timetable for any costs application which might be made. Any submissions on costs must include copies of relevant receipts or evidence of payments.

Orders

The Tribunal makes the following orders: 1. The decision under review is set aside and remitted for reconsideration in accordance with the following directions: 1. within 3 weeks of the date of these orders, the Respondent must conduct reasonable searches for the requested information sought by the Applicant (as set out in paragraph [5] of this decision); 2. if the requested information has been destroyed, the Respondent must search for any footage which might be held by the Respondent in an electronic back up system; 3. the Respondent must document those searches in writing; 4. within 4 weeks of the date of these orders, the Respondent must reconsider the release of the requested information in accordance with the GIPA Act, advise the Applicant of the outcome of the reconsideration and give written reasons for its decision to the Applicant. 1. If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application within 2 weeks of the date of these orders. Those submissions must address the question of whether there are special circumstances warranting an award of costs under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The costs respondent is to file and serve submissions and documents on the costs application within 4 weeks of the date of these orders. 3. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 4. The Tribunal may determine that it is appropriate to deal with any costs application on the papers and without a further oral 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: 17 October 2023

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (6)