Choi v Commissioner of Police

NCAT Administrative and Equal Opportunity|2020-05-29

REASONS FOR DECISION

This is an application for administrative review of a decision of an NSW government agency under s 100 (1) of the Government Information (Public Access) Act 2009 (NSW) ('the GIPA Act').
Prior to the hearing, the respondent filed documents ('the confidential evidence') upon which it was submitted the documents were not served on the applicant because there was an overriding public interest against disclosure. It was submitted that it was necessary to receive that confidential evidence and hear argument about that confidential evidence in the absence of the applicant and the public.
Pursuant to s 107 (2) of the GIPA Act the Tribunal determined that it should conduct part of the hearing in private in respect of the confidential evidence ('the private hearing'), and otherwise conducted the hearing in respect of the documents and submissions that did not fall within s 107 (1) of the GIPA Act in public ('the public hearing').
The public hearing concluded on 14 August 2020 and the private hearing dealing with the confidential evidence occurred on the same date, immediately after the conclusion of the public hearing.

BACKGROUND

The applicant has resided in South Korea for a number of years but has stated in written submissions to the Tribunal that she is an Australian citizen or an Australian resident (it is unclear which) and intends to return to Australia in any event. The applicant has been involved in a number of GIPA disputes with the respondent and other entities that have involved other legal proceedings, including proceedings in the Tribunal and the Appeal Panel of the Tribunal.
In written submissions to the Tribunal dated 5 March 2020, the applicant stated: "I have an extraordinary litigation history".
On 26 November 2019, the applicant made a GIPA application to the respondent. That application sought information described in 14 items (with the applicant using the description "Sub-Points" rather than "Items"). In this decision, the descriptive word "Item" will be used rather than "Sub-Point".
The information sought will be discussed in detail later in this decision. However, the information sought can be relevantly summarised as follows: 1. An event report and log records for a domestic violence incident the applicant reported to Police in 1996 or 1997 (Items 1 and 2); 2. Documents, including log records, pertaining to COPS Event No E 55599078. That incident involved a pram carrying the applicant's son and being pushed by the applicant being struck by a motor vehicle whilst the applicant and her son were crossing the intersection of George Street and Rugby Place, Sydney on 8 May 2014 (Items 3 and 4); 3. Documents, including log records, pertaining to COPS Event No E 62304804. That incident involved a report by the applicant to police on 4 October 2016 that the applicant's former landlord had damaged her property and withheld items of her property (Items 5 and 6). 4. Documents, including log records, pertaining to COPS Event No E 26304804 (Items 5 and 6). 5. Log records showing when information relating to COPS Event No E 540486091 was accessed. That incident involved a report by the applicant to Police on 4 November 2016 that she was the victim of sexual assaults over a period of time perpetrated by an identified person (Item 7). 6. The name of the female Police officer the applicant spoke with at Dee Why Police Station on 4 November 2016 (Item 8). 7. The name of a Police officer who was present at the reception at the foyer at Dee Why Police Station at around 11 am on 12 October 2016 (Item 9). 8. The name of a Police Officer at the reception at the foyer of Dee Why Police Station between 9.30 am and 11.00 am who wrote information on a yellow 'Post It' note (Item 10). 9. A copy of the COPS Report Event No E 54048601 printed on December 2019 (including printing date on right top) (Items 11 and 12). 10. "Your information" (sic) kept by Sergeant Damon Flakelar for "September, October and November" 2016 including Duty Book and notebook (Item 13). 11. Log records of Police Officers Jennifer Thom, Ashlee Kaufer and Damon Flakelar for "September, October and November" 2016 in relation to RMS, COPS, IMS and I-Ask (Item 14).
On 28 November 2019, the respondent made a decision producing documents in respect of COPS Event No E 55599078 but refusing to deal with the remainder of the application under s 60 (1) (e) of the GIPA Act on the basis that the applicant was a party to current proceedings before a court and able to apply to the court for the information sought.
On 29 November 2019, the applicant filed proceedings in the Tribunal to seek review of the decision of the respondent dated 28 November 2019.
On 13 January 2020, a case conference occurred at the Tribunal. Relevantly, the orders made by the Tribunal at the case conference included: 1. The respondent review the decision of 28 November 2019 and provide a supplementary decision (including copies of any information) to the applicant by 10 February 2020 (Order 2); 2. The applicant consider any supplementary decision and inform the respondent and the Tribunal in writing by 9 March 2020 whether she regarded the supplementary decision as satisfactory (and the application for review would be withdrawn); or if she did not regard the decision as satisfactory provide reasons why she continued to object to decisions the subject of the proceedings (Order 4).

The Supplementary Decision

On 10 February 2020, the respondent made a supplementary decision. Written reasons were provided in the decision. The supplementary decision was as follows: 1. Items 1 & 2-Information not held (s 58 (1) (b) of the GIPA Act). 2. Item 3-The name of the officer was provided. A copy of the COPS Event Report E 55599078 had been released (with redactions) on 28 November 2019. A search of emails was being conducted and would be provided shortly. Other information requested was not held (s 58 (1) (b) of the GIPA Act). 3. Item 4-The COPS Audit Log in respect of COPS Event No E5599078 was refused on the basis that there was an overriding public interest against disclosure of the information (Section 58 (1) (d) of the GIPA Act). The public interest considerations identified were identified as Table 1 (f); Table 1 (g) and Table 2 (a) of s 14 of the GIPA Act. Further, "audit logs held in RMS, IASK, and IMS" were not produced as "there are no relevant records held in RMS IASK, and IMS and therefore, no audit logs are held" (Section 58 (1) (b) of the GIPA Act). 1. Item 5-The COPS Event Report of E 62304804 was released with minor redactions. The redactions were made on the basis there was an overriding public interest against disclosure of the information (Section 58 (1) (d) of the GIPA Act). The public interest considerations were identified as Table 3 (a) of s 14 of the GIPA Act). The decision stated a search of relevant email was being conducted and "will be provide to you shortly". Other information requested was not provided as it was not held by the respondent (Section 58 (1) (b) of the GIPA Act). In respect of COPS Event No E 26304804, the respondent stated no such event number existed, and was likely a typographical error from a document provided in other NCAT proceedings between the parties. No information was provided on the basis the information sought was not held by the respondent (Section 58 (1) (b) of the GIPA Act). 1. Item 6-The COPS Audit Log in respect of COPS Event No E 62304804 was refused on the basis there was an overriding public interest against disclosure (Section 58 (1) (d) of the GIPA Act). The public interest considerations were identified as Table 1 (f) and (g) and Table 2 (a) of s 14 of the GIPA Act. Other information requested was not provided as the respondent held "no relevant records held in RMS, IASK, and IMS, therefore, no audit logs are held" (Section 58 (1) (b) of the GIPA Act). In respect of COPS Event No E 62304804 the respondent stated that no information was held (Section 58 (1) (b) of the GIPA Act). 1. Item 7-The COPS Audit Log in respect of COPS Event E 540486091 was refused on the basis there was an overriding public interest against disclosure (Section 58 (1) (b) of the GIPA Act). The public interest grounds identified were Table 1 (f) and (g); and Table 2 (a) of Section 14 of the GIPA Act. The respondent stated that two records were held in "RMS that relate to this Event number: D/2018/104526 and D/2017/673857 which had been provided to the applicant on 2 May 2019. Such documents provided included "the audit logs…in full". The respondent stated that "there are no relevant records held in IASK and IMS, therefore no audit logs are held" (Section 58 (1) (b) of the GIPA Act). 1. Item 8-The name of the officer was identified. 2. Item 9-The information was not provided as the respondent did not hold the information (Section 58 (1) (b) of the GIPA Act). 3. Item 10-The name of the officer was identified. 4. Item 11-The information was not provided as the respondent did not hold the information (Section 58 (1) (b) of the GIPA Act). 5. Item 12-The information was not provided as the respondent did not hold the information (Section 58 (1) (b) of the GIPA Act). Additionally, the respondent stated that the information requested is "after your access application date". 6. Item 13-The information was not provided as the respondent did not hold the information (Section 58 (1) (b) of the GIPA Act). 7. Item 14-The COPS Audit Logs in respect of COPS Event No E540486091 of 3 named officers was not provided as there was an overriding public interest against disclosure (Section 58 (1) (d) of the GIPA Act). The grounds identified were Table 1 (f) and (g); and Table 2 (a) of Section 14 of the GIPA Act. In respect of records held in RMS, the respondent stated that there were "no audit records in RMS for the named officers". The respondent stated that there were "no relevant records held in IASK and IMS, therefore no audit logs are held (Section 58 (1) (b) of the GIPA Act.
On 5 March 2020, the applicant filed with the Tribunal and served on the respondent an 18-page document titled "Applicant's Submissions". This document is, in substance, a document complying with the directions of the Tribunal dated 13 January 2020, as it sets out why the applicant disagrees with the supplementary decision of the respondent dated 10 February 2020 and presses for review of that decision.

Applicant

The applicant filed and served a voluminous amount of documents in support of the application for review. The applicant's documents contained a mixture of evidence (reference to factual matters), and submissions (reference to legal arguments).
In accordance with Section 38 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act') the Tribunal admitted documents into evidence subject to weight and relevance and considered all of the written materials of the applicant that were identified and marked as exhibits at the hearing.
The documents of the applicant admitted into evidence were bundles of documents filed on the following dates: 1. 3 March 2020 2. 5 March 2020 3. 12 May 2020 4. 28 May 2020
The applicant also attached documents to the application for review filed with the Tribunal dated 29 November 2019 which have also been considered by the Tribunal in support of the application for review.
Further, the applicant sent to the Tribunal written submissions and a document in Korean in support of her application to adjourn the hearing on 14 August 2020. The application for an adjournment; and the Tribunal's reasons for refusing the adjournment, are dealt with in the reasons that follow.

Respondent

The following documentary evidence of the respondent was admitted: 1. Affidavit of Chief Inspector Matthew McCarthy dated 9 April 2020. 2. Statements of Matthew Smith, Senior Advisor Officer, dated 14 April 2020 and 26 May 2020.
The respondent also filed and served written submissions dated 14 April 2020 and 26 May 2020 (submissions in reply).

CONDUCT OF THE HEARING

Prior to the first date of hearing, the Tribunal had directed that the hearing be conducted by telephone. As the applicant resided overseas, the applicant was directed to telephone the Tribunal at the appointed date and time.
A Korean interpreter was booked for the hearing. At the commencement of the hearing, the applicant was asked whether she wished for the interpreter to be used to interpret everything that was said at the hearing, or whether the applicant wished to participate in English and use the interpreter at any stage when she did not understand what was said; or did not feel she could adequately express herself in English.
The applicant stated that she would participate in English and ask to use the interpreter at any stage of the hearing when she did not clearly understand what was said in English or did not feel she could adequately express herself in English.
At the commencement of the hearing, the applicant sought that the hearing be conducted by Audio Visual Link ('AVL') as she wished to see the Tribunal Member and the respondent's Solicitor and witnesses. The hearing, at direction of the Tribunal, had been listed by telephone. No adequate reasons were established for the hearing to be conducted by AVL rather than telephone, in circumstances where the real issue in dispute was review of the respondent's decision not to produce certain information to the applicant under the GIPA Act. The application for an AVL hearing was refused.
The applicant enquired about the venue from where the Solicitor for the respondent was participating in the hearing. The Solicitor for the respondent stated she would participate at the hearing sitting alone in a conference room at the premises of the Respondent's Solicitors.
The applicant commenced an application for the Member to recuse himself because the Member was not sufficiently "experienced". However, that application was not ultimately pressed, and it was unnecessary for the Tribunal to make a ruling on that issue.
The Tribunal explained the procedure of a GIPA review hearing to the applicant, including that part of the hearing would be open to the public and part of the hearing would be conducted privately without the participation of the applicant (the private hearing) by reason of the respondent filing confidential evidence under s 107 (1) of the GIPA Act.
The applicant stated that she wished to cross examine both Chief Inspector McCarthy and Mr Smith on their evidence. She indicated that she wished to cross examine Chief Inspector McCarthy before Mr Smith.
The Tribunal then dealt with objections the applicant raised to the evidence of Chief Inspector McCarthy and Mr Smith. As discussed previously, the Tribunal determined that the evidence of both parties should be admitted subject to weight and relevance.
A period of time was spent confirming with the applicant what documents she had filed and served in the proceedings and was relying upon at the hearing.
A delay then occurred because the interpreter became unavailable. A new interpreter was arranged.
The various procedural matters and issues with the interpreter took up the majority of the hearing time on 29 May 2020. The parties were informed the hearing would be part-heard to a new hearing date.
At the end of the hearing on 29 May 2020, the applicant made a fresh application that the hearing be conducted by AVL. The further reason given was that a Member of the Tribunal had, in other proceedings, drawn the erroneous conclusion that the applicant was an "alcoholic" and an AVL hearing would assist the applicant in dispelling such an erroneous conclusion.
The Tribunal was not satisfied that it should depart from the previous direction of the Tribunal that the hearing be conducted by telephone; or its previous rejection of the application by the applicant for the hearing to be conducted by AVL.
Further, there was no evidentiary or other material before the Tribunal indicating that the applicant was an alcoholic, or any other adverse inference regarding the applicant. No adverse inference about the applicant's character, honesty, or integrity is drawn by the Tribunal.
The hearing was then adjourned to 24 June 2020. Due to further issues with interpreter availability and technical problems with the applicant calling the Tribunal from Korea, the hearing did not materially advance on 24 June 2020.
The hearing was then adjourned to 14 August 2020.

Application by the Applicant to Adjourn the Hearing of 14 August 2020

In the period from 22 July 2020 the applicant sent a series of emails seeking that the hearing of 14 August 2020 be adjourned.
Under s 51 of the NCAT Act the Tribunal has the power to grant an adjournment. The decision whether to grant an adjournment is involves the exercise of discretion. Principles applicable to adjournment applications have been considered by the Appeal Panel of the Tribunal on a number of occasions (e.g. O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77; Armee v Brearley [2017] NSWCATAP 141; and Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133). Such principles can be relevantly summarised as follows: 1. Matters should almost always proceed on the date fixed for hearing. 2. An application for an adjournment should be seen as the exceptional rather than the ordinary course. 3. If the adjournment is caused, at least in part, by the delay of the party seeking the adjournment or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for and its absence weighs heavily, and sometimes decisively, against the grant of an adjournment. 4. The effect of the grant of the adjournment on the other party is a matter to be considered. 5. Procedural fairness may be denied to a party if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case.
In an email of 22 July 2020 the grounds upon which the applicant sought an adjournment were that she was "unavailable" on 14 August 2020; and that the respondent had not provided documents to her. The Tribunal made directions regarding each party filing and serving its material regarding the adjournment application. The respondent filed and served submissions opposing the adjournment application and stating that all evidence it was relying upon (other than the confidential documents filed with the Tribunal) had been served by the respondent.
In her email of 22 July 2020 the applicant did not state why she was "unavailable" on 14 August 2020.
On 5 August 2020 filed and served documents in support of the adjournment application, relevantly being a copy of previous decisions of the Tribunal involving the applicant and further asserting that she had a medical appointment on 14 August 2020.
On 7 August 2020, the Tribunal issued orders as follows: The Tribunal has received a further email from the applicant dated 5 August 2020. In essence, the email states that the applicant has a doctor's appointment on 14 August 2020 but that she will only provide documentary evidence if (i) the Tribunal guarantees an adjournment will be given; and (ii) the Tribunal has any document provided translated from Korean and pays for interpretation of the document. The applicant is applying for an adjournment and the onus is upon the applicant to provide any documentary evidence sought to be relied upon to support the adjournment application, including arranging for any document to be translated into English. It is not the responsibility of the Tribunal to arrange and pay for the cost of interpreting a document. The Tribunal also cannot "guarantee" that it will grant an adjournment. No further evidence or reasons have been provided to the applicant as to why she cannot attend (by telephone) and participate in the hearing on 14 August 2020. Accordingly, no basis for granting an adjournment has been established and the hearing date is confirmed.
On 12 August 2020, the applicant filed further documents and submission with the Tribunal in support of the adjournment application. Such documents included previous decisions of the Tribunal involving the applicant; and a document in Korean that was asserted to be evidence of the medical appointment on 14 August 2020. The applicant submitted that the medical appointment was to ascertain if the applicant had cancer.
On the morning of 14 August 2020 the Tribunal made the following orders which were emailed to the applicant: The applicant has sent a further email on 12 August 2020 to the Tribunal attaching documents and seeking that the hearing on 14 August 2020 be adjourned because the applicant has a medical appointment. The documents attached which the applicant asserts show that she has a medical appointment and the details of the appointment are in Korean. The applicant asserts that it is the responsibility of the Tribunal to the documents interpreted. The Tribunal has made clear in its previous decisions refusing the adjournment application that it is the responsibility of the applicant to provide documents which have been interpreted into English if she is relying on the documents to support the adjournment application. The applicant has also provided copies two NCAT decisions involving the applicant in previous proceedings but has not stated how such decisions are relevant to the adjournment application or support the adjournment application, which is based on the applicant having a medical appointment to attend on 14 August 2020. The fresh information provided does not cause the Tribunal to change its previous decisions to refuse the adjournment application. The hearing date of 14 August 2020 is confirmed.
The applicant clearly received the email of the orders of the Tribunal on 14 August 2020 because at 8.53 am she responded to those orders by email to the Tribunal. In that email, she specifically referred to the orders of the Tribunal dated 14 August 2020.
The applicant stated that "Korean people are unable to access the NCAT website because the traffic from NSW to Korea is disconnected. Thus, I am unable to access the AVL". The applicant further stated that she needed to consult a doctor to ascertain if she had cancer and "You had better fix your website in the meantime I will (fix) my heath and you fix your website".
The hearing notice issued by the Tribunal dated 3 July 2020 giving notice of the time, date, and manner of hearing on 14 July 2020 made clear that the hearing was to be "by telephone" and was not an AVL hearing. As discussed previously, applications by the applicant to have the hearing conducted by AVL had been refused by the Tribunal.
At the hearing on 14 August 2020 the applicant did not telephone the Tribunal. The hearing was adjourned for a period to allow the applicant to contact the Tribunal. The Tribunal reconvened at approximately 10.50 am. There had been no contact from the applicant, including any emails from the applicant to the Tribunal Registry to indicate she was attempting to contact the Tribunal.
The issue of a further adjournment of the hearing was raised with the respondent. The respondent did not consent to the hearing being further adjourned.

Reasons for Refusal of Adjournment of Hearing on 14 August 2020

The Tribunal determined that the hearing should proceed, there being no satisfactory grounds to adjourn the hearing. The Tribunal accepts that if the applicant had a medical appointment for a serious medical condition that directly clashed with the hearing on 14 August 2020 that would be strong evidence in favour of adjourning the hearing. The Tribunal also accepts that the applicant had previously indicated that she wished to cross examine the respondent's witnesses, and the hearing proceeding ex-parte on 14 August 2020 meant that the applicant did not cross examine Mr Smith or Chief Inspector McCarthy.
However, weighed against those considerations is that the applicant had been given ample opportunity to provide documentary evidence by way of a document interpreted into English that she had a medical appointment on 14 August 2020; the time of such an appointment; and the nature of the appointment.
The applicant also raised in her email on 14 August 2020 (and this issue had been raised in emails to the Tribunal leading up to 14 August 2020) that there were internet difficulties in Korea. However, there was nothing to establish that any such difficulties prevented (or deleteriously affected) the ability of the applicant to participate in the hearing on 14 August 2020 by telephone.
The matter also had a long procedural history (although the Tribunal does not attribute previous adjournments to any conduct of the applicant); and procedural directions of 7 and 14 August 2020 made clear the obligation was on the applicant to provide appropriate evidence to support an adjournment application. The applicant failed to do so.
Further, in respect of any cross examination of the applicant of Mr Smith and Chief Inspector McCarthy, the Tribunal also takes into account that under s 105 of the GIPA Act, the onus is on the respondent to justify its decision not to provide the information sought. Accordingly, irrespective of any cross examination of Mr Smith and Chief Inspector McCarthy the legal onus is on the respondent to justify its decision.
Any cross examination of Mr Smith and Chief Inspector McCarthy would only have been permitted to the extent that it dealt with issues relevant to the real issues in dispute in the proceedings (s 36 (3) of the NCAT Act), not questions that related to the conduct of the respondent towards the applicant generally that fell outside the ambit of relevance to GIPA review proceedings.
The Tribunal has also considered the fact that Mr Smith and Chief Inspector McCarthy were not cross examined in circumstances where the applicant had indicated that she wished to cross examine such witnesses when attributing weight to the evidence of the parties.
Additionally, the Tribunal did not commence hearing submissions from the respondent at the open hearing until approximately 10.50 am. Had the applicant telephoned the Tribunal on 14 August 2020 in the period between 10.00 am and the conclusion of the open hearing, the applicant would have had the opportunity to question Mr Smith and Chief Inspector McCarthy (if she still wished to do so) and make oral submissions. The applicant would also have had the opportunity to make a further application for an adjournment. However, no telephone contact from the applicant was received on 14 August 2020.
The Tribunal then heard oral submissions from the respondent at the open hearing.
After such submissions were made, the private hearing occurred, dealing with the confidential material.

Affidavit of Chief Inspector McCarthy dated 9 April 2020

The affidavit of Chief Inspector McCarthy commences by setting out his employment history. He is currently Manager of the Spatial & Analytical Capacity Unit of the State Intelligence Command and has been in that position since February 2018.
Chief Inspector McCarthy states that the Computerised Operational Policing System ('COPS') was introduced in 1994 and is the computerised "method of capturing, storing any analysing operational intelligence on an organisation wide basis".
Information within COPS is accessible to operational police and unsworn members of the police force. Additionally, the Roads and Maritime Service ('RMS' formerly known as the Roads and Traffic Authority ('RTA')) system which also stores information is accessible to police directly through the RTA system and indirectly through COPS. The RMS system is still recorded in COPS as 'RTA'.
A COPS event number is created when an officer enters information into the COPS system after attending to a criminal or non-criminal matter (which is not a purely internal administrative matter). Each event is given a unique number and includes information including the events that occurred; details of witnesses; details of complainants; details of persons of interest; and action taken by police (such as charges being laid or apprehended personal violence orders being applied for). Police may access the COPS system for information relevant to their duties or investigations whether the event was submitted by themselves or another officer.
Police do not record in COPS "things like routine patrolling, conveying prisoners, general conversations with members of the public, delivery of exhibits, attendance at Court or routine resource requests".
The evidence of Chief Inspector McCarthy (at paragraph [23]) sets out in detail what information a COPS event report will detail. The COPS event may also record a warning that is relevant to the safety of police or members of the public, such as information that a person has a firearm or has been involved in domestic disputes.
Chief Inspector McCarthy states that other systems exist within the COPS system, including the Case Management; Charge Management; and Custody Management systems. The Case Management system details whether an event has been finalised with no further action, or whether further investigation is required. If further investigation is required, the Case Management system records the investigative actions taken. The Charge Management system records all police activities from initiation of legal action against an offender to custody administration and maintenance of the offender's full criminal history. The Custody Management system records all police and prisoner activities from when a person first comes into custody until the person is released or transferred to the custody of other agencies.
Chief Inspector McCarthy states that to discharge policing functions individual offices regularly undertake searches of the COPS system. At paragraph [29] of his affidavit, Chief Inspector McCarthy sets out examples of situations where police access the COPS system for information in the context of investigation and intelligence gathering. Police may search the COPS system using various search terms, such as an event number; names of persons; or vehicle registration numbers.
At paragraphs [34]-[38] of his affidavit, Chief Inspector McCarthy sets out the way the COPS system is audited. This is to prevent corruption and behaviour by officers inconsistent with their duties and responsibilities. An audit generates a report of all accesses to COPS by a particular officer over the last 12 months and an officer audited is required to justify their COPS access in respect of a random sample of accesses.
At paragraphs [39]-[42] and [44]-[47], of his affidavit, Chief Inspector McCarthy describes "reverse audits". A "reverse audit" occurs where an authorised officer of the respondent searches the COPS Event Number to determine which persons, if any, have conducted a search on the COPS Event; what changes to COPS (if any) were made; and the content of those changes.
Chief Inspector McCarthy states that requests for "reverse audits" of the COPS system must be referred to either the Professional Standards Command, or Regional Professional Standards Managers. Local officers do not have the authority to conduct a "reverse audit" of the COPS system.
Chief Inspector McCarthy states that the "reverse audit" process is used internally by the respondent to monitor and reduce the risk associated with improper and unauthorised access of the COPS system. A "reverse audit" report would "not usually be created for any purpose other than routine auditing for corruption prevention, or as part of complaint investigation".
Chief Inspector McCarthy states that information sought to determine who, if any, uses of the COPS system have written, edited or deleted information in the COPS system relating to specified COPS Event reports is, in substance, a "reverse audit".
Chief Inspector McCarthy sets out, at paragraphs [48]-[61] of his affidavit, his opinion that disclosure of audit reports on the COPS system could have a prejudicial effect on the effective exercise of police functions; the conduct, effectiveness, or integrity of audits; and the prevention, detention or investigation of the law or prejudice the enforcement of the law. The reasons provided are summarised as follows: 1. A person could deduce whether they have been under investigation by the police from the information contained within an audit report in relation to a COPS Event. Such information could lead a person under investigation to modify their behaviour to disrupt any investigation. 2. The release of audit reports could compromise the supply of confidential information to the police by allowing for the identification of informants. Members of the public and internal police complainants should be able to trust that information provided to police would remain confidential; and members of the public and internal police complainants would refuse or be reluctant to provide information to police if they believed they could be identified as a reporter or source by way of reverse audit information being obtained under a GIPA application. 3. If a person under investigation became aware that identified police officers were involved in that investigation, the officers could be targeted either for the purpose of making threats or intimidation, or otherwise seeking to corrupt the investigation process. 4. The release of audit reports of COPS Event reports could reveal details of confidential law enforcement methodologies and methods of intelligence and evidence collection.

Statement of Mr Smith dated 14 April 2020

Mr Smith sets out his employment background. Since May 2017 he has been a Senior Advisory Officer at the respondent. His role and responsibilities include managing the respondent's response GIPA applications; utilising the record keeping systems of the respondent; and ensuring compliance with the respondent's policy and legislative requirements.
Mr Smith states that electronic records and information is held by the respondent primarily in the respondent in two databases. The first is the COPS system. The second is known as the "Record Management System" ('RMS').
Further, the respondent uses a database known as "View IMS" to store large electronic files such as audio-visual material; recordings of interviews; and PDF documents.
Mr Smith states that police also have hard copy notebooks containing written information about their activities and detectives may also use a detective duty book to record their day-to-day activities.
Additionally, the respondent's employees and officers also use email. Mr Smith states that he personally does not have authorisation to search the work emails of the respondent's officers or employees, but this can occur by way of a request to the Business and Technology Services ('BTS') section of the respondent.
At paragraphs [20]-[77] of his statement, Mr Smith sets out in detail the searches conducted in respect of the 14 Items that constitute the applicant's GIPA application; what information was produced; and the circumstances in which searches conducted did not reveal any information held.
Mr Smith states (at paragraph [78]) that the searches conducted in response to the applicant's amended access application were "exhaustive" and he could not think of any other searches that the respondent could undertake that would be likely to result in further information being located.

Statement of Matthew Smith dated 26 May 2020

At paragraphs [3]-[4] Mr Smith states that, in respect of COPS information searches, a search conducted using a "Central Names Index" number would not reveal any information not revealed using a search of a person's name, as both are linked together.
Mr Smith states that in paragraph [44] of his first statement, he gave evidence that an email by the applicant to Constable Southcott dated 14 October 2014 was not part of the material returned from BTS in response to a request that searches of emails be conducted by BTS.
Mr Smith states that upon further review he discovered that the email was, in fact, returned by the BTS searches. Mr Smith stated that he had overlooked this when he was preparing the additional information provided to the applicant pursuant to the supplementary decision.
Mr Smith states that he had undertaken a further review of the emails that were identified because of the searches conducted by BTS and "no further emails were identified beyond those provided to the applicant and the email of 14 October 2016".

RESPONDENT'S EVIDENCE-CONFIDENTIAL HEARING

[NOT FOR PUBLICATION]
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STATUTORY FRAMEWORK FOR REVIEW

The grounds upon which the respondent has not produced information to the applicant pursuant to the GIPA request are as follows: 1. Information not held (Items 1; 2; 3; (in part); 5 (in part); 6 (in part); 7 (in part); 9; 11; 12; 13; and 14 (in part). 2. Public interest considerations against production outweigh public interest considerations in favour of production (Item 4; 6 (in part); 7 (in part); and 14 (in part).
The Tribunal has summarised the statutory framework for review in the context of whether public interest considerations against production outweigh public interest considerations in favour of production in Fisher v Commissioner of Police [2021] NSWCATAD 44 at [82]-[102]. Relevantly:
The objects of the GIPA Act are set out in s 3 (1) as being to open government information to the public, in order to maintain and advance a system of government that is open, accountable, fair and effective. That is done by: 3 Object of Act … (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. …"
Pursuant to s 3 (2) of the GIPA Act, the Act is to be interpreted and applied to further the objects of the Act; and discretions are to be exercised, as far as possible, to facilitate and encourage promptly and at the lowest reasonable cost, access to government information.
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 9(1) of the GIPA Act provides that a person who makes an application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the GIPA Act unless there is an overriding public interest against disclosure of the information.
Section 12 (1) of the GIPA Act states that there is a general public interest in favour of the disclosure of government information. Section 12 (2) of the GIPA Act states that nothing in the Act limits any other public interest considerations in favour of the disclosure of government information that may be considered for the purpose of determining whether there is an overriding public interest against the disclosure of government information and the Note to s 12 (2) provides examples of public interest considerations in favour of disclosure of information.
There are two situations where there will be an overriding public interest against disclosure.
The first is where there is a conclusive presumption under s 14 (1) of the GIPA Act against any disclosure of the government information described in Schedule 1 of the GIPA Act. No issue arises in these proceedings that the information sought by the applicant falls within Schedule 1 of the GIPA Act, nor that the information sought falls within excluded functions of agencies under s 19 and Schedule 2 of the GIPA Act.
The second is where there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (s 13 of the GIPA Act).,
The Table in s 14 of the GIPA Act sets out the only considerations against disclosure that may be considered when applying the public interest test in s 13 of the GIPA Act.
Relevant to this application are the following matters set out in the Table: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)- … (f) prejudice the effective exercise by an agency of the agency's functions, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of any agency by revealing its purpose, conduct or results (whether or not commenced and whether or not complete 2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, … (d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person, …
In respect of a decision that information is not provided because there is an overriding public interest against disclosure, Section 55 of the GIPA Act deals with the extent to which, if any, the personal factors of the applicant can be considered. Section 55 of the GIPA Act states: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section - (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) 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. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note - An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.
The manner in which applications for access are decided is set out in Division 4 of the GIPA Act.
Section 58 of the GIPA Act states as follows: 58 How applications are decided (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note - These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
In respect of s 58 (1) (c) of the GIPA Act, s 59 states as follows: 59 Decision that information already available to applicant (1) An agency can decide that information is already available to an applicant only if the information is - (a) made publicly available by the agency or some other agency in accordance with a legislative instrument other than this Act, whether or not availability of the information is by inspection only and whether or not availability is subject to a charge, or (b) available to the applicant from, or for inspection at, the agency free of charge in accordance with this Act or the agency's policies and practices, or (c) contained in a document that is usually available for purchase, or (d) available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant's possession, or (e) publicly available on a website, or (f) available to the applicant by way of a standing rule or order of the Legislative Council or Legislative Assembly. (2) An agency is not required to provide access to information that the agency has decided is already available to the applicant, but notice of the decision must indicate why the agency believes the information is already available to the applicant and, if necessary, how the information can be accessed by the applicant.
In respect of s 58 (1) (e) of the GIPA Act, s 60 states as follows: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason) - (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989, (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note - See section 70. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order, (e) the agency reasonably believes the applicant, or a person acting in concert with the applicant, is - (i) a party to current proceedings before a court, and (ii) able to apply to that court for the information. (2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided. (3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications. (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. (6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
Section 72 of the GIPA Act provides for the forms in which access is to be granted. Section 72 states: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways - (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless - (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note - Decisions about how to provide access are reviewable under Part 5.
The decision of the respondent to refuse access is a reviewable decision under s 80 (d) (e) and (f) of the GIPA Act. The Tribunal has jurisdiction to conduct the review by reason of ss 7, 8, and 9 of the Administrative Decisions Review Act 1997 (NSW) ('the ADR Act').
The Tribunal's function on review is to decide the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law (s 63 (1) ADR Act). In deciding what is the correct and preferable decision, the Tribunal stands in the shoes of the decision maker and remakes the decision, as if it were the administrator (s 63 (2) of the ADR Act).
In conducting a review, the Tribunal is not constrained to have regard only to the material that was before the agency but may have regard to any material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179). The time at which the Tribunal is to determine the correct and preferable decision is at the time the Tribunal makes its decision (YG and GG v Minister for Community Services [2002] NSWCA 247 at [55]; Shi v Migration Agents Registration Authority [2008] HCA 31; Betzis v Commissioner of Police [2020] NSWCATAD 71 at [24]).
In opposing release of information under the GIPA Act, a respondent may raise, and the Tribunal may consider, grounds other than those relied upon by the original decision maker (Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277; Danis v Commissioner of Police, NSW Police Force [2020] NSWCATAD 138 at [33]).
In respect of the burden of establishing that a decision is justified, s 105 of the GIPA Act states: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. (4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.
In respect of a decision that information is not held by an agency, Section 53 of the GIPA Act states as follows: 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.
In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 ('Wojciechowska') the Appeal Panel of the Tribunal set out the applicable principles to adequacy of searches at paragraphs [42]-[44] as follows: 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. 44. In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.

Item 1& 2

The salient issue is whether the respondent has conducted reasonable searches as may be necessary to find any of the government information applied for that was held by the respondent when the application was received under s 53 (2) of the GIPA Act.
Whether such searches were reasonable and adequate; and whether further searches are likely or unlikely to locate the information sought is a question of fact (Thomson v Commissioner for Police [2021] NSWCATAD 53 at [57]-[58]).
The principles set out in Wojciechowska require clear identification by the respondent of its information management systems, so that identification can be made as to whether the agency had complied with its obligations under s 53 (2) of the GIPA Act can be ascertained.
The statement of Mr Smith dated 14 April 2020 clearly sets out the information systems of the respondent (at paragraphs [9]-[17]) and the searches conducted by Mr Smith for the information sought in Items 1 and 2 (paragraphs 20]-[21]). Mr Smith stated that he personally conducted searches of COPS to identify whether any COPS report or records had been generated, using searches by the applicant's full name (and an abbreviation of her name) and, additionally, the other person identified, Mr Nelson. No COPS records were found.
In her submissions filed on 12 May 2020, the applicant submits that searches were inadequate, because no search had been conducted using the applicant's "CNI" number. CNI is an anacronym for "Central Names Index".
In his statement of 26 May 2020, Mr Smith states that a search of the COPS system using the applicant's name would have the same effect as a search using a CNI number, because both are linked in the respondent's information systems.
The Tribunal is satisfied on the evidence of Mr Smith that: 1. The respondent has provided comprehensive evidence of its information systems. 2. The respondent conducted searches of its information systems responsive to the request for information under Items 1 and 2. 3. No information responsive to Items 1 and 2 was found. 4. Any search using the applicant's name (and abbreviation of her name) would have identified any COPS Event report responsive to Items 1 and 2 of the information sought. 5. A further search using the applicant's CNI would not have produced any information that was not produced using a search of the applicant's name (and abbreviation of her name). 6. The respondent has conducted reasonable searches necessary to find the information sought in respect of Items 1 and 2.
The submissions of both parties refer to a dispute as to whether the applicant agreed at the interlocutory case conference before the Tribunal to refine the scope of the request for information under Items 1 and 2. The dispute involves whether the applicant was now only seeking information in respect of any COPS Event Report or was additionally seeking information including notebooks; duty books and other documents.
It is unnecessary to make findings on this issue because the Tribunal is satisfied that the respondent has conducted reasonable searches necessary to find the information sought and no information responsive to Items 1 and 2 was found based upon the original scope of the request for information.

Item 3

The respondent submits that it has now provided an unredacted copy of all information found for COPS Event E 55599078 and the name of the officer who spoke to the applicant. A further copy of the documents, without any redactions, was attached to the respondent's submissions of 14 April 2020.
In her submissions of 12 May 2020, the applicant disputes that all the pages of the COPS Event report have been produced (she asserts one page is missing); that a "hard copy" should have been provided; and that documents including police notebooks should have been produced.
In respect of the applicant's submission that a "hard copy" of the documents should have been produced, it is unclear what is meant by this. The documents produced are hard copies of electronic records of the respondent. There is no evidence to indicate that the documents produced are not an accurate and reliable copy of the electronic information held by the respondent.
In her submissions of 28 May 2020, the applicant submits at paragraphs [19]-[22] how the respondent "failed to conduct a reasonable search" in respect of documents sought relating to COPS Event E 55599078. The matters criticised by the applicant relevantly include failing to conduct a "CNI" Number search; failing to correctly search the applicant's name (and abbreviation of her name); using an incorrect search term; and that , by reference to documents she had obtained in respect of a different COPS Event, the applicant believed the documents produced had been "manipulated".
In respect of other documents being available that have not been produced, the statement of Mr Smith dated 14 April 2020 sets out in detail at paragraphs [23]-[34] the searches conducted by Mr Smith in respect of the information sought.
Having viewed the documents produced to the applicant, there is also nothing to indicate there is a page missing from the documents.
The Tribunal has considered the criticisms of the search raised by the applicant, but her subjective views are inconsistent with the evidence of Mr Smith and the documents attached to the respondent's submissions of 14 April 2020.
The Tribunal is satisfied on the evidence of Mr Smith that: 1. The respondent has provided comprehensive evidence of its information systems. 2. The respondent conducted searches of its information systems responsive to the request for information under Item 3. 3. Other than the information that has been produced to the applicant (in its final form, on 14 April 2020) no information responsive to Item 3 was found. 4. The respondent has conducted reasonable searches necessary to find the information sought in respect of Item 3 and there is no reasonable prospect that any further searches would find any further information responsive to Item 3.

Item 4

This item pertains to the log records for COPS Event Number E 55599078. That information has been withheld by the respondent on grounds that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure.
The same issue for consideration arises in respect of Items 6, 7 and 14. Such Items (and the issue of whether the public interest considerations outweigh the public interest considerations against disclosure) will be considered together later in this decision.

Item 5

This Item is in respect of information pertaining to COPS Event Reports E 62304804 and E 26304804
In respect of COPS Event E 26304804, Mr Smith states at paragraphs [40]-[41] that he conducted a COPS system search in respect of that Event number and no information was obtained. Mr Smith states that he believes the applicant's reference to such a COPS Event number arises from a typographical error in a witness statement he provided in other GIPA proceedings involving the parties.
In her submission of 12 May 2020, the applicant does not accept that there is no COPS Event E 26304804 as she had "repeatedly" requested the respondent confirm that there was no typographical error in other proceedings between the parties. Her submissions dated 28 May 2020 do not take the issue any further.
The Tribunal accepts the evidence of Mr Smith that he has conducted searches of COPS Event E 26304804, and that no information has been provided. The Tribunal also accepts that the respondent has provided comprehensive evidence of its information systems and that the respondent has conducted reasonable searches necessary to find the information sought in respect of COPS Event E 26304804 and that there is no reasonable prospect that any further searches would find any information responsive to COPS Event E 26304804.
In respect of COPS Event E 62304804 the respondent provided information (with minor redactions) to the applicant in the supplementary decision of 10 February 2020. The redactions involved personal identification information of a named person identified in the COPS Event as the "PN" (i.e. "person named"). A further copy of the information provided to the applicant was attached to the respondent's submissions of 14 April 2020.
The submissions of the applicant dated 12 May 2020 and 28 May 2020 do not seek that the applicant be provided with an unredacted copy of the information provided by the respondent. Accordingly, the Tribunal does not regard production of an unredacted copy as part of the issues in dispute.
Rather, the submissions of the applicant focus upon the purported failure of the respondent to conduct reasonable searches. In particular, the applicant relies on the fact that she had sent an email to Constable Southcott on 14 October 2016, and this was not a document that had been produced to her pursuant to the supplementary decision and was not produced on 13 February 2020.
The searches performed by the respondent in respect of documents involving the COPS Event E 62304804 is deal with in paragraphs [42]-[48] of Mr Smith's statement of 14 April 2020; and paragraphs [5]-[7] of Mr Smith's statement of 26 May 2020.
Relevantly, Mr Smith states in his statement of 26 May 2020 that the email of the applicant to Constable Southcott was returned by the BTS search conducted by Mr Smith, but Mr Smith had erroneously failed to provide a copy to the applicant. Mr Smith states that he had conducted a further search after the applicant' submissions and no further emails were identified beyond those provided to the applicant and the email of 14 October 2016.
There is no evidence before the Tribunal for an inference to be drawn that Mr Smith's error in failing to produce the email of 14 October 2016 was anything other than an innocent error; or that an inference can be drawn that inadequate searches were performed.
The Tribunal is satisfied on the evidence of Mr Smith that: 1. The respondent has provided comprehensive evidence of its information systems. 2. The respondent conducted searches of its information systems responsive to the request for information under Item 3. 3. Other than the information that has been produced to the applicant no information responsive to Item 5 was found. 4. The respondent has conducted reasonable searches necessary to find the information sought in respect of Item 5 and there is no reasonable prospect that any further searches would find any further information responsive to Item 5.

Item 6

Item 6 involves the log records for COPS Event E 62304804. Two issues arise. The first is whether the respondent is entitled to withhold the log records on the basis that public interest considerations against disclosure outweigh public interest considerations in favour of disclosure. This issue will be deal with later in the decision.
The second issue is whether the respondent has conducted reasonable searches. The applicant submits that the respondent has failed to conduct adequate searches in respect of the log records, for essentially the same reasons as she submits that adequate searches have not been made in respect of the other items that constitute the GIPA application.
Evidence is provided by Mr Smith at paragraphs [49]- [51] of his statement dated 14 April 2020 of the searches conducted and that the only log records responsive to the request for information are the log records that have been withheld from the applicant on public interest grounds.
The Tribunal accepts the evidence of Mr Smith regarding the searches performed, and as discussed previously, he has given comprehensive evidence of the respondent's information systems. The Tribunal is satisfied in accordance with the principles in Wojciechowska that the respondent has conducted reasonable searches necessary to find the information sought.

Item 7

Item 7 involves the log records for COPS Event No E 540486091. Records for COPS Event No E 540486901 (other than log records) were provided by the respondent to the applicant in previous NCAT proceedings (statement of Mr Smith dated 14 April 2020 at paragraph [52]).
Again, two issues arise. The first is whether the respondent is entitled to withhold the log records on the basis that public interest considerations against disclosure outweigh public interest considerations against disclosure. As discussed previously, that issue will be considered (along with all of the Items where the respondent is relying upon Section 58 (1) (d) of the GIPA Act) separately in this decision.
In respect of Item 7, it is unclear from the applicant's submissions whether she contends that there are other records available responsive to Item 7 that have not been produced and that the respondent has conducted inadequate searches. Item 7 is identifies "the log records showing when information relating to E 540486091 was accessed" and, for the purposes of the review of the decision, the Tribunal cannot expand the scope of the information sought by the applicant.
However, to the extent that the application for review involves consideration as to whether the respondent conducted adequate searches of the respondent's RMS, IMS and I-ASK systems raises the issue of whether the respondent has conducted reasonable searches necessary to find the information sought, the Tribunal shall consider this issue.
The evidence of Mr Smith in his statement of 14 April 2020 at paragraphs [52]-[56] is that other than the log records of COPS, no other log records can be generated. The Tribunal accepts this evidence and is satisfied that the respondent has conducted reasonable searches necessary to find the information sought in accordance with the principles in Wojciechowska.

Item 8

This item seeks the name of the female officer who spoke to the applicant at the reception area at the foyer of Dee Why Police Station at around 4 November 2016.
The respondent provided the information in its supplementary decision of 10 February 2020. The name provided was Senior Constable Kaufer.
In her submissions of 12 May 2020 the applicant asserts that the information provided was incorrect for reasons identified in paragraphs [23]-[25] of her submissions.
The applicant's submissions correctly accept that it is not within the scope of the GIPA Act to consider the accuracy of the information provided.
The relevant enquiry is whether the respondent conducted reasonable searches necessary to find the information sought.
Mr Smith gives evidence at paragraphs [57]-[60] of his statement dated 14 April 2020 of the searches conducted to ascertain the information that the person who spoke to the applicant was Senior Constable Kaufer.
The Tribunal is satisfied, in accordance with the principles in Wojciechowska that the respondent has conducted reasonable searches necessary to find the information sought.

Item 9

This item seeks the "name of the Officer at reception at the foyer of Dee Why Police Station at around 11.00 am on 12 October 2016 (possibly male)." The respondent in its supplementary decision stated that such information was not held by the respondent.
The respondent can only search for information that was identified with sufficient specificity in the request for information. The respondent is not under a duty to attempt to decipher every possible permutation of the information sought in the GIPA request. The request for information by the applicant was not framed as a request for the shift records of all police officers on duty at a particular police station on a particular day, but for "the name of the officer at reception…"
In her submissions of 12 May 2020 the applicant stated that she would reduce the scope of the information sought to "a male admin officer who was not wearing a police uniform". However, this is not a narrowing of the scope of the information sought, it is reference to different information sought and not within the scope of the GIPA application decision that is the subject of review.
At paragraphs [61]-[63] of his statement dated 14 April 2020, Mr Smith sets out the searches made (relevantly the log records of the police station setting out who was on shift on 12 October 2016) and states that the records did not identify who was on the front desk on the day.
The Tribunal is satisfied in accordance with the principles in Wojciechowska that the respondent has conducted reasonable searches necessary to find the information sought in Item 9 and that there is no information responsive to the applicant's request.

Item 10

This item seeks the name of the "…officer at reception at Dee Why Police Station between 9.30 am and 11 am on 4 November 2016 and author of an identified post-it-note".
The respondent has provided this information in its supplementary decision.
The applicant states in her submissions of 12 May 2020 that she does not have any dispute regarding the information provided.
Accordingly, there is no issue for consideration in respect of Item 10.

Items 11 and 12

Items 11 and 12 involve a duplication of the same request for information, as both Items request "A copy of the COPS Event No E 540486901 printed in December 2019 (including printing date on right top)".
At paragraphs [67]-[68] of his statement dated 14 April 2020 Mr Smith states that when COPS Events records are printed the date on which they are printed is contained in the top right of the page. Mr Smith states he is unaware of when COPS Event records for Event No E 540486901were printed on the date specified by the applicant in a hard copy form, and if they were, where they could be located. According to Mr Smith, it is not the usual practice for police to print out COPS Event documents in hard copy and the usual procedure of police is to refer to a soft copy database entry for a COPS Event report if necessary.
In her submissions the applicant asserts that the COPS Event No E 540486901 previously provided has missing information and "at least three different versions". Accordingly, the applicant seeks the respondent provide a "hard copy" of the documents previously provided so that she can be satisfied of their authenticity.
As discussed previously, it is not within the scope of the GIPA Act to consider the accuracy of the information provided. The relevant enquiry is whether the respondent conducted reasonable searches necessary to find the information sought.
Accepting the evidence of Mr Smith regarding the searches performed, the Tribunal is satisfied in accordance with the principles in Wojciechowska that the respondent has conducted reasonable searches necessary to find the information sought and no further information responsive to the requests in Items 11 and 12 is held.

Item 13

The information sought is "… my information kept by Sgt Flakelar in September, October and November including Duty Book and notebook".
Mr Smith states at paragraphs [70]-[72] of his statement dated 14 April 2020 that he understood the request for information to be any material held by Sgt Flakelar relating to COPS Event No E 540486091.
The Tribunal accepts that such an interpretation of the request for information is a reasonable interpretation of the request.
Mr Smith states that he had reviewed email correspondence with Sgt Flakelar in which Sgt Flakelar confirmed he was not involved in the investigation relating to COPS Event No E 540486091 and his only action was to "verify the event in order to close the matter" which is part of the usual duties of a senior officer to "close a COPS entry when there are no outstanding tasks left in a matter".
In her submissions of 12 May 2020 and 28 May 2020, the applicant submits that, firstly, the interpretation by the respondent of her request for information is incorrect; secondly, she seeks "all information held by Sgt Flakelar" not just "my information"; and thirdly she would "revoke" Item 13 if the respondent provided an affidavit of Sgt Flakelar stating he was not involved in the investigation pertaining to COPS Event No E 540486091.
The Tribunal does not accept that the respondent misinterpreted the scope of the applicant's request for information. The failure of the respondent to serve a statement or affidavit from Sgt Flakelar is an issue pertaining to the weight of evidence, in circumstances where the respondent has the onus of justifying its decision.
The Tribunal is satisfied based on the evidence contained in the statement of Mr Smith and in accordance with the principles set out in Wojciechowska that the respondent has conducted reasonable searches necessary to find the information sought. The Tribunal is satisfied that there is no further information responsive to Item 13 and there is no reasonable prospect that any further searches would find any further information responsive to Item 13.

Item 14

There are two issues pertaining to this request for information. The first is whether the public interest considerations against disclosure in respect of the COPS Audit Log records produced outweigh the public interest considerations in favour of disclosure. That issue will be dealt with separately.
The second issue is whether the respondent has conducted reasonable searches in respect of audit records in respect of RMS; I-ASK and IMS.
The evidence of Mr Smith in his statement of 14 April 2020 at paragraphs [75]-[77] sets out in detail the searches conducted by the respondent in respect of RMS; I-ASK and IMS records, in the context of the evidence of Mr Smith contained in that statement giving a detailed explanation of the information systems of the respondent.
Importantly, at paragraph [75] of his statement dated 14 April 2020, Mr Smith states: "As far as I am aware it is not possible to audit RMS View IMS or I-ASK by reference to a particular user and obtain information about how they used the database in an identified time period".
Mr Smith goes on to state in that paragraph that even if such a search were possible, it would likely result in a huge number of results which would have nothing to do with the applicant or any identified COPS Event.
In her submissions of 12 May 2020 the applicant submits that the searches have been inadequate as she sought "what records (the named officers) accessed or/and created when they accessed or/and crated and what keywords they entered within their passwords". The applicant further submits that search results would not have produced excessive amounts of documents as the search related only to her information and was a for a short period of time. The applicant also submits that the respondent should have conducted a 'CNI' search (an issue that has been dealt with previously in this decision).
However, the key issue is whether the respondent conducted reasonable searches of the RMS, IMS and I-ASK databases to locate "audit trails and log records" of 3 identified police offices accessing those systems for the period between September to November 2016.
Accepting the evidence of Mr Smith, any such audit records and log records are exclusively the records produced regarding the COPS system (which the respondent has produced but denies access) and it is not possible to conduct an "audit" by reference to use by an individual user of the RMS, IMS and I-ASK databases.
Accordingly, the Tribunal is satisfied in accordance with the principles in Wojciechowska that the respondent has conducted reasonable searches necessary to find the information sought in Item 14 and that other than the COPS Event log reports, there is no information responsive to the applicant's request. The Tribunal is further satisfied that there is no reasonable prospect that any further reasonable searches would produce log records or audit records other than the COPS Event log reports.
The decision of the respondent that information is not held other than the information provided to the applicant is the correct and preferrable decision.

Items 4; 6; 7 and 14-COPS Audit Reports for COPS Events E 5559078; E 62304804; E 540486091 and COPS Audit Records of Officers Thom, Kaufer and Flakelar

The request for information regarding the above items has been refused by the respondent on grounds that public interest considerations against disclosure outweigh public interest considerations in favour of disclosure.
No submission was made by the respondent that the creation of a COPS Event Audit Record ('reverse audit') involved the creation of a "new record" under s 75 (2) (a) and/or (c) of the GIPA Act. This issue has, in any event, been considered by the Appeal Panel of the Tribunal in Commissioner of Police v DYD [2020] NSWCATAP 224 at [35]-[40].
The request for "log records" and "audit records" of COPS Event reports on the respondent's information system involves records showing who and when employees of the respondent accessed the said COPS Event reports.
The request for log records and audit records of Officers Thom, Kaufer and Flakelar is a request for information that reveals the identified officer's usage of the COPS database during the period the information is sought.
In Fisher v Commissioner of Police [2021] NSWCATAD 44 at [163]-[169] the Tribunal set out the salient principles for consideration of balancing whether public interest considerations against disclosure outweighed public interest considerations in favour of disclosure as follows:
When considering public interest considerations, the Tribunal must adopt a staged approach that involves identifying the public interest considerations in favour of disclosure, identifying the public interest considerations against disclosure and the determining where the balance lies between competing public interests (Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [23]-[30]).
In the Table to Section 14 of the GIPA Act, the phrase "would reasonably be expected to" is given its ordinary meaning. Applicable principles are discussed in Betzis v Commissioner of Police [2020] NSWCATAD 71 at [47]-[49] as follows: 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]: "[25] … The test to be applied is an objective one, approached from the viewpoint 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]).
The public interest considerations in cl. 1 (d) and (f) of the Table in Section 14 of the GIPA Act requires there be some relevant "prejudice" to the agency. The word "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]). However, the respondent needs to show more than the mere possibility, risk, or chance of prejudice. Prejudice needs to be based on real and substantial grounds (Australian Vaccination Network v Department of Finance and Services [2013] NSWADT 60 at [22].
In respect of "functions" under cl. 1 (f) of the Table in s 14 of the GIPA Act, the word functions include, in respect of NSW Police, the detection, investigation and prosecution of breaches of the law, which is to be examined at the broader operational level. The respondent is not required to establish that the disclosure of information could reasonably be expected to compromise a particular investigation (Commissioner for Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 at [26]).
In respect of cl. 1 (d) of the Table in Section 14 of the GIPA Act, the relevant test is not whether a particular person whose confidential information is being considered for disclosure could reasonably be expected to refuse such information in the future, but whether the agency will be able to obtain such information in the future (Camilleri v Commissioner of Police, NSW Police Force [2013] NSWADT 80 at [38]).
When considering the public interest in the disclosure of information in the course of detection and investigation of a potential criminal offence, Smart AJ stated in Simring v Commissioner of Police, NSW Police [2009] NSWSC 270 at [69]: When a person speaks with the police in respect of a criminal offence and reveals sensitive matters that person expects that statements made will only be used for the purpose of the Court proceedings and not otherwise. There are limits on what can be published. There is a strong public interest in criminal offences being reported to the police and the sources of information not drying up. If victims of crime thought that statements made in the course of a criminal investigation revealing their personal affairs, or some of them, could be released to an applicant under the FOI Act, those sources of information may well dry up or at least there could be a reduction in the flow of information available to the police.

Public Interest Considerations In Favour of Disclosure

In its submissions of 14 April 2020, the respondent submits that in addition to the general public interest in favour of disclosure in s 12 (1) of the GIPA Act, the disclosure of COPS Audit Reports could reasonably be expected to promote government accountability and transparency in the exercise of law enforcement functions, in particular with respect to the audit processes and use of the COPS system.
In her access application, the applicant identified reasons for seeking the COPS Audit Reports as including the following: 1. Finding which police officers accessed her personal information, and when they accessed the information. 2. Identifying why the respondent regarded her complaint in COPS Event E 540486091 (involving an allegation of sexual assault) as, in her view, a "false complaint". The Tribunal interprets this public interest consideration to include reasons why the respondent failed to investigate, or adequately investigate the complaint and take further action such as arrest and prosecution. 3. Identifying whether the COPS Event reports had been reviewed or altered.
In her submission of 12 May 2020 the applicant does not refer specifically to other public interest considerations in favour of disclosure, but (at paragraphs [22]-[31]) focusses upon why the public interest considerations against disclosure do not outweigh public interest considerations in favour of disclosure.
However, on the issue of public interest considerations in favour of disclosure, the Tribunal interprets the applicant's submissions as raising the following considerations: 1. The applicant asserts that information held by the respondent about the applicant is false, inaccurate, and biased. 2. Release of the information would allow the applicant to make further enquiries as to why the respondent created or entered information in the COPS Event Reports which was, in her view, false, inaccurate, and biased. 3. It is in the public interest that police make accurate entries into the COPS system and do not inappropriately alter or falsify information. 4. Access to the COPS log records (including the log records of the identified officers in Item 14) might generally be expected to enhance the respondent's accountability in respect of its incident response and resolution processes. 5. The investigation of the applicant's complains to the police were serious matters (in particular, the complaint regarding sexual assault) and it was in the public interest for the respondent to be transparent regarding the veracity of the information contained in the COPS system.
In her submissions of 28 May 2020, the applicant continued to assert that the respondent had "falsified" records and that it was attempting to conceal this by refusing to give her access to the COPS Audit Records sought.

Public Interest Considerations Against Disclosure

In its submission of 14 April 2020 the respondent submits that the public interest considerations against disclosure are as follows:

Table 1 (f) of s 14 of the GIPA Act-Prejudice the effective exercise of the agency's functions; and Table 2 (b) of s 14 of the GIPA Act-Prejudice the prevention, detection, or investigation of a possible contravention of the law or prejudice the enforcement of the law.

The respondent submits that: 1. The ability to access COPS is of great value to operational police officers in the course of performing their duties of public safety and law enforcement (for reasons set out in the affidavit of Chief Inspector McCarthy at paragraphs [17]-[24] and [55]). 2. In discharging the agency's functions, individual officers are regularly required to undertake searches of the COPS system using parameters such as a person's name, address, or vehicle registration number. Such searches are undertaken in a wide range of situations (paragraph [29] of the affidavit of Chief Inspector McCarthy). 3. Disclosure of COPS Audit Reports could cause detriment to the ability of the respondent to effectively discharge its functions by: 1. Enabling persons to become aware whether they have been, or are, under investigation by police (paragraph [50] of the affidavit of Chief Inspector McCarthy). 2. Ascertaining ways to modify their behaviour in order to disrupt future law enforcement efforts (paragraph [52] of the affidavit of Chief Inspector McCarthy). 3. If police release COPS Audit Reports in circumstances where there was no ongoing investigation, a later refusal of an application for the same type of information would allow the applicant to deduce that they had come under police scrutiny or investigation in the intervening period (paragraph [59] of the affidavit of Chief Inspector McCarthy). 4. Disclosure of the fact that a person is not the subject of an ongoing investigation could be valuable information for a person who is undertaking unlawful activities and could assist their continued efforts to evade police attention (paragraph [60] of the affidavit of Chief Inspector McCarthy). 5. Although release of a COPS Audit Report may only appear to confirm or deny whether a particular action has been taken or not taken, it could be used by the recipient to deduce whether information has been supplied to or come to the attention of police, which would prejudice the ability of police to prevent, detect and investigate contraventions or possible contraventions of the law (relying upon the authorities including Rivero v Commissioner of Police, NSW Police Force [2019] NSWCATAD 115 ('Rivero') and Denyer v Commissioner for Police, NSW Police Force [2018] NSWCATAD 160 ('Denyer'))

Table 1 (h) of s 14 of the GIPA Act-Prejudice the conduct, effectiveness, or integrity by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)

The respondent submits that: 1. The release of COPS Audit Reports could reasonably be expected to prejudice the conduct or integrity of audits of officers' use of the COPS system performed by the respondent by revealing their conduct. In this regard, the respondent relies on the evidence of Chief Inspector McCarthy at paragraphs [34]-[37] and [44]-[47] of his affidavit where he gives evidence of the use of 'reverse audits' of police accessing the COPS system by managers and internal investigators of the respondent to prevent police corruption.
In respect of this public interest consideration against disclosure, the respondent relies on the authorities of Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 at [54] and Rivero at [54]).

Table 2 (a) of s 14 of the GIPA Act-Reveal or tend to reveal the identify of an informant or prejudice the future supply of information from an informant; and Table 2 (d) of s 14 of the GIPA Act-Endanger or prejudice any system or procedure for protecting the life, health, or safety or any person

The respondent submits that:
The release of COPS Audit Reports could compromise the identity of informants, which created a systemic concern that informants would not be prepared to assist police in their investigations and enquiries (affidavit of Chief Inspector McCarthy at paragraphs [53]-[56]).
The release of COPS Audit Reports would show details of officers who had accessed or created information in a particular COPS Event Number, which created a systemic concern that such officers could be targeted by criminals or persons associated with criminals (affidavit of Chief Inspector McCarthy at paragraph [57]).

Consideration-Balancing Public Interest Considerations

Public Interest Considerations in Favour of Disclosure

The Tribunal is satisfied, based on the evidence contained in the affidavit of Chief Inspector McCarthy at [39]-[42] that the information sought in Items 4, 6, 7 and 14 is a "reverse audit" of the COPS system. That information involves who, if any, of the uses of COPS have written, edited or deleted information in the COPS system relating to the specified COPS Event Reports; and whether specified officers have written, edited or deleted information in the COPS system.

Section 12 (2) (a) of the GIPA Act

The Tribunal accepts that the disclosure of the "reverse audits" could be expected to promote open discussion of public affairs, enhance Government accountability, or contribute to informed debate on issues of public importance (s 12 (2) (a) of the GIPA Act).
It is a matter of public importance that procedures of the respondent in respect of the way police enters information in its COPS system; who accesses that system; and the way the system is accessed could reasonably be expected to enhance the accountability of the agency.
The way police access the COPS system is relevant to the exercise of their powers and responsibilities, which is a matter of public importance. The reverse audits of the COPS system sought by the applicant could reasonably be expected to contribute to informed debate on an issue of public importance.
However, as set out in the evidence of Chief Inspector McCarthy, it is necessary for police as part of their lawful duties to access the COPS system on a regular basis.
The mere fact that there has been an entry in the COPS system, or access to the COPS system by an officer, or changes in information does not, of itself, indicate that police have acted outside the scope of their lawful duties in accessing the COPS system; entering information in the COPS system; or altering information in the COPS system.
The Tribunal gives moderate weight to the public interest consideration in favour of disclosure under s 12 (2) (a) of the GIPA Act.

Section 12 (2) (b) of the GIPA Act

The Tribunal accepts that the "reverse audit" information sought could reasonably be expected to inform the public about the operation of agencies, and in particular, their policies and practices dealing with members of the public (s 12 (2) (b) of the GIPA Act. That consideration overlaps with the consideration in s 12 (2) (a) of the GIPA Act in the circumstances of this matter, as the way police access the COPS system; what information is entered; and what (if any) changes to information is made could reasonably be expected to inform the public about the operation of the agency in the context of enhancing the accountability of the agency.
As with the consideration in s 12 (2) (a) of the GIPA Act, the Tribunal gives moderate weight to the public interest consideration in s 12 (2) (b) of the GIPA Act.

Section 12 (2) (c) of the GIPA Act

There is nothing in the "reverse audit" log records or evidence before the Tribunal that raise any reasonable prospect that the disclosure of the information the disclosure of the information could reasonably be expected to ensure the effective oversight of the expenditure of public funds (s 12 (2) (c) of the GIPA Act. The Tribunal gives no weight to this consideration.

Section 12 (2) (d) of the GIPA Act

The "reverse audit" COPS log records contain some personal information of the applicant by reason of the fact COPS Events involve the applicant. However, the substance of the records sought but not produced by the applicant involve the occasions and way police officers have accessed the COPS system. The Tribunal gives minimal weight to this consideration.

Section 12 (2) (e) of the GIPA Act

This consideration is where such disclosure could reasonably be expected to reveal or substantiate that an agency or member of an agency has engaged in misconduct or negligent, unlawful, or improper conduct.
A mere assertion that the information sought could reasonably be expected to reveal misconduct or negligent, unlawful, or improper conduct is insufficient for the Tribunal to give weight to this consideration. In Commissioner for Police, NSW Police Force v Barrett [2015] NSWCATAP 68 at [136]-[137] the Appeal Panel held: It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that 'disclosure ... could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.' As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal's reasons to indicate that it had any material that 'could reasonably be expected to reveal' the types of improper conduct to which the above formulation refers.
There is nothing in the material before the Tribunal to indicate a reasonable basis for making a finding that the "reverse audit" information sought could reasonably be expected to reveal or substantiate that the agency, or member of an agency has engaged in misconduct or negligent, unlawful, or improper conduct.
Accordingly, the Tribunal gives no weight to the consideration in s 12 (2) (e) of the GIPA Act.

Personal Factors of the Applicant in Favour of Disclosure

Under s 55 of the GIPA Act, motives of the applicant can be considered. Motive must be established on reliable evidence, and not by mere assertion (Donnellan v Ku-ring-gai Council [2013] NSWADT 115 at [60]).
The Tribunal has taken the following relevant personal factors of the applicant into account in favour of disclosure: 1. The applicant states she is the victim of sexual assault; the assault had not been adequately investigated; and appropriate action has not been taken by police to arrest and prosecute the perpetrator of the assault. 2. The applicant states police have modified information in COPS Events reports; failed to enter information in the COPS system; entered inaccurate information; and failed to provide accurate information to the applicant in this and previous GIPA Act applications. 3. The applicant states that police falsely regard her as a 'troublemaker' (i.e. not creditable) and do not properly investigate or respond to her complaints. 4. A motive of the applicant in seeking the information is to ensure that police act in accordance with the law and are held accountable if they fail to do so.
The Tribunal does not regard any other personal factors of the applicant as being a relevant consideration.
The Tribunal gives minimal weight to the relevant personal factors of the applicant in favour of providing the applicant with access to the information.
The respondent pointed to no personal factors of the applicant as factors against providing access (s 53 (3) of the GIPA Act). Accordingly, the Tribunal does not take any personal factors of the applicant into account as a consideration against disclosure.

Public Interest Considerations Against Disclosure

The Tribunal has previously set out in detail the evidence of Chief Inspector McCarthy and the submissions of the respondent as to why public interest considerations against disclosure outweigh public interest considerations against disclosure. It is unnecessary to repeat such evidence and submissions.
The Tribunal is satisfied based on the evidence of Chief Inspector McCarthy and the documentary evidence of the respondent that release of the 'reverse audit report' information withheld in Items 4, 6, 7 and 14 could reasonably be expected to: 1. Cause detriment to the ability of the respondent to effectively discharge its functions by enabling persons to become aware of whether they have been, or are, under investigation (Table 1 (f) and 2 (b)). 2. Enable a person to ascertain ways in which to modify their behaviour in order to disrupt future law enforcement efforts (Table 1 (f) and 2 (b)). 3. Allow a person to deduce they had come under police scrutiny or investigation in the period between release of COPS Audit Reports, if the respondent released COPS Audit Reports in circumstances where there was no ongoing investigation, but later refused a GIPA application for the same type of information (Table 1 (f) and 2 (b)). 4. Disclose to a person who has, or is, committing unlawful activities that their conduct has not come to the attention of the respondent, and accordingly assist their efforts to evade police attention (Table 1 (f) and 2 (b)). 5. Put at risk the security, integrity and confidentiality of the auditing processes and standards of the respondent, in circumstances where COPS 'reverse audits' are used by the respondent internally as a method of detecting and investigating potential police corruption (Table 1 (f) and 2 (b)). 6. Reveal information which could then be used by a GIPA applicant to request COPS Event Reports, the narratives of which could reveal information that allows the applicant to deduce the identity of the police informant who provided the information (Table 2 (a)). 7. Identify police officers, who could be targeted by reason of their involvement in an investigation or access to the COPS system (Table 2 (a)). 8. Put at risk the security, integrity and confidentiality of the respondent's auditing processes and standards, in circumstances where "reverse audits" of the COPS system is used by the respondent internally as a tool to prevent (and identify) potential corrupt conduct (Table 1 (h)).
The Tribunal gives substantial weight to the public interest considerations against disclosure. Such an approach is consistent with the weight given by the Tribunal to such public interest considerations against disclosure in Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 at [76]-[77] and Rivero v Commissioner for Police, NSW Police Force [2019] NSWCATAD 115 at [55]-[60].

Conclusion-Balancing Public Interest Considerations

The Tribunal is satisfied that public interest considerations against disclosure of the 'reverse audit' COPS Audit Reports in Items 4, 6, 7 and 14 outweigh the public interest considerations in favour of disclosure.
The decision of the respondent to withhold information from the applicant on grounds that public interest considerations against disclosure outweigh public interest considerations in favour of disclosure is the correct and preferrable decision.

ORDERS 1. The decision under review is affirmed.

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: 04 June 2021

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