Choi v Commissioner of Police, NSW Police Force

Procedural History n the Tribunal

1. On 11 March 2019 Ms Choi filed an application to review the Commissioner's decision in this Tribunal.
2. That application was first listed for directions before Senior Member Higgins on 17 April 2019. The Senior Member made a series of directions on that day which are self-explanatory, but which went awry. Her orders were: (1) The decision by Commissioner of Police, NSW Police Force to refuse access to specified information for which the applicant sought access made on 12 and 28 December 2018 is returned to Commissioner of Police, NSW Police Force for re-consideration. By 03 May 2019 Commissioner of Police, NSW Police Force is to tell the Tribunal and Jae Hee Choi whether the decision has been affirmed, varied or set aside and if there is a new decision. By 13 May 2019 Jae Hee Choi is to tell the Tribunal and the Commissioner whether she is continuing or withdrawing her application. If Jae Hee Choi advises that she is continuing her application, she is to tell the Tribunal and the Commissioner the specific information she presses access. (2) In the event Jae Hee Choi tells the Tribunal and the Commissioner of Police, NSW Police Force that she is continuing with her application, the Commissioner is to give to the Tribunal and Jae Hee Choi the following material: evidence including statements, documents and submissions (including an indication as to whether the application can be adequately determined on the papers) on or before 11 June 2019. (3) The Respondent is to give to the Tribunal the following material on a confidential basis by 11 June 2019: (a) documents considered to be subject to a conclusive overriding public interest against disclosure in a sealed envelope marked 'conclusive presumption documents' (b) documents considered to be subject to a non-conclusive overriding public interest against disclosure in a sealed envelope marked 'non-disclosure documents'. (4) Jae Hee Choi is to give to the Tribunal and the Commissioner the following material in reply: evidence (if any) and submissions (including an indication as to whether the application can be adequately dealt with on the papers) on or before 25 May 2019. (5) Subject to any objection and submissions from either party, the applicant's application is to be determined on the papers after 25 June 2019.
3. On 2 May 2019 the Commissioner made a supplementary decision under the GIPA Act, having conducted further searches. The decision decided to grant full access to new information, namely: 1. two requests for information from Victims Services received by the Commissioner, regarding Ms Choi's report of rape, made on 9 August 2017 and 7 February 2018; 2. a response prepared by Senior Constable Ashlee Kaufer on 12 February 2018 (the second decision). This information was not located in the original searches.
4. Ms Choi did not accept the second decision. She made this clear in submissions filed with the Tribunal on 8 May 2019.
5. Due to an internal "oversight" the responsible officers for the Commissioner were not aware that Ms Choi wished to proceed with her review application, as her email had gone to a wrong address. As a consequence, the Commissioner did not file materials to support the decisions and confidential copies of the information in issue were not provided to the Tribunal.
6. Ms Choi made submissions on 24 June 2019 seeking to have the application for review under the GIPA Act determined in her favour.
7. The matter was then referred to Principal Member Britton, in Chambers, given that the Commissioner had not filed anything further. On 3 July 2019 she determined that the matter was to be determined on the papers.
8. It was then referred to me for decision.
9. On 7 August 2019 the Tribunal received an application from the Commissioner for an extension of time in which to comply with the orders made by Senior Member Higgins, proposing a new time table. This request had been sent to Ms Choi who had refused to agree to an extension of time.
10. The request for an extension of time and Ms Choi's objection were referred to me. On 8 August 2019 I granted the extension of time and set out a new timetable for the filing of submissions and material, which included giving Ms Choi an opportunity to adduce further evidence and submissions in reply. I indicated that once the new materials and submissions were filed, I would consider afresh whether the matter should be determined on the papers. I gave short reasons for that decision which it is not necessary to repeat here. Those orders were amended to correct a slip on 14 August 2019.
11. Ms Choi then applied to have those orders set aside. That application was considered and refused by Principal Member Britton on 11 September 2019 (see Choi v Commissioner of Police, NSW Police Force [2019] NSTCATAD 191).
12. On 5 September 2019 Ms Choi filed a document headed "Summary" and a statement, with annexures.
13. On 13 September 2019, I declined to determine the matter on the papers and directed that the matter proceed to a hearing. As Ms Choi lives in South Korea, I made provision for her to participate in the hearing by phone, with the Tribunal to be assisted by an interpreter.
14. While the Commissioner considered that the application could be determined on the papers, Ms Choi believed that a hearing was necessary. She also identified specific witnesses she wished to cross-examine. I was satisfied that there were factual conflicts which an oral hearing might enable me to resolve. These were: 1. whether there was further information in the possession of the Commissioner that had not been disclosed with respect to alleged exchanges between Police and UTS staff, and Police and Victims Services; 2. whether such information had been properly searched for and how; and 3. the contest with respect to the public interests relied on by the respondent.
15. With respect to Ms Choi's desire to cross-examine specific witnesses I wrote: I note that in her submissions the applicant indicates that she wishes to cross-examine specific Police officers who have not provided witness statements on behalf of the respondent. The applicant should be aware that it is usual for the respondent to choose its own witnesses in reviews under the Government Information (Public Access) Act 2009. An Appeal Panel has been held that there are sound reasons why an applicant should not be able to choose which officers from an agency should give evidence: see Lonsdale v University of Sydney [2015] NSWCATAP 277 at [29-33]. The applicant should discuss her desire to cross-examine specific witnesses with the respondent's representative.
16. On 16 October 2019 Ms Choi made a series of application for summons directed to the following persons to give evidence: 1. Senior Constable Ashlee Kaufer; 2. Detective Senior Constable Jennifer Thom; 3. Marlene Parker, Review Officer; 4. "a male officer who interviewed me on 12 October 2016"; 5. "an unknown female police officer (I name F1)"; 6. "an unknown female police officer (I name F2)"; and 7. "a female police officer who called me on 7 November 2016" whose Ms Choi had recorded and provided a YouTube address for.
17. The Registrar, on 16 October 2019, refused to issue summonses in response to all these requests. Those addressed to unknown persons could not be issued, and each was found not to have any apparent relevance to the issues in dispute.
18. Ms Choi then sought to have each refusal reviewed. On 18 October 2019 Principal Member Pearson directed that the review applications in relation to the summonses be heard at the hearing scheduled for 22 October 2019.
19. The hearing proceeded on 22 October 2019. Ms Choi participated by phone. The respondent was represented by Ms N Urban from the Crown Solicitors Office.
20. I insisted that Ms Choi use the interpreter during the hearing to ensure that she understood what was being said, and to ensure that I understood what she said. She spoke in heavenly accented English, which I had difficulty understanding over the phone.
21. During the hearing some considerable time was spent narrowing the precise issues in dispute and hearing from a witness called by the Commissioner, Mr Matthew Smith, a senior advisory officer at Infolink.
22. At the commencement of the hearing the Commissioner proposed to undertake further searches suggested by Mr Smith in an effort to ensure that all appropriate searches had been undertaken for the information sought by Ms Choi.
23. The pace of the hearing was slow, and it soon became apparent that we would not have sufficient time to deal with all issues, e.g. to hear and determine the summons issues. As it was clear that the matter could not conclude until Mr Smith had undertaken further searches, I made a series of orders at the conclusion of the hearing which provided: (1) Within 14 days the Respondent shall file with the Tribunal and serve on the Applicant advice as to: (a) the outcome of further searches it has agreed to undertake in response to the Applicant's initial request for access to information; (b) whether or not information found as a result of those searches will be released to the Applicant or is subject to a claim that its release is not in the public interest; and (c) if the Respondent claims release is not in the public interest, why that is the case. (2) Within a further 14 days the Applicant shall file with the Tribunal and serve on the Respondent advice as to whether: (a) she wishes to proceed with her claim for access to the new information which the Respondent does not wish to release (if any); (b) if so, what information she seeks and why she says the Respondent's public interest arguments are wrong; (c) she still wishes to proceed with her application for summons; and (d) the outstanding issue in this case can be determined without a hearing on the materials supplied to the Tribunal. (3) Within a further 7 days the Respondent shall file with the Tribunal and serve on the Applicant: (a) any material in response to the Applicant's material provided in accordance with Order 2; (b) submissions as to the whether the summonses the applicant presses should issue; and (c) submissions as to whether the outstanding issues can be determined on the papers. (4) The matter is then to be referred to me to determine whether the matter can proceed without a hearing under s 50 of the Civil and Administrative Tribunal Act 2013 or whether a further hearing is required. (5) The Tribunal reserves its decision with respect to the applicants claim for access to the confidential documents produced by the Respondent to date, and will determine those issues when making a final determination of the matter.
24. Due to a mistake on my part, order 3, which I announced at the end of the hearing, was omitted from the written directions issued after the hearing. As soon as this error was drawn to my attention by the Commissioner, the written directions were amended (on 8 November 2019).
25. On 5 November 2019 the Commissioner made another supplementary decision (the third decision) which resulted in the release of further information as follows: 1. a copy of relevant parts of Detective Jennifer Thom's duty book (document 7), subject to redactions made because of an overriding public interest against disclosure as - 1. the information did not relate to the access application; 2. disclosure could prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14 Table 1(d)); 3. disclosure could prejudice the effective exercise by an agency of the agency's functions (s 14 Table 1(f)); 4. disclosure could endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person (s 14 Table 2(d)) - reliance on this public interest consideration against disclosure was subsequently abandoned by the Commissioner; and, 5. disclosure could reveal an individual's personal information (s 14 Table 3(a)); 1. a copy of relevant parts of Senior Constable Ashlee Kaufer's note book (document 8), subject to redactions made because of an overriding public interest against disclosure, because disclosure some of the information - 1. did not relate to the access application; and 2. could reveal an individual's personal information (s 14 Table 3(a)); 1. further email correspondence containing no redactions (document 9).
26. The third report also found that: 1. Senior Constable Ashlee Kaufer did not possess a duty book, just a note book; and 2. aside from the information outlined in the first, second and third reports, the Commissioner held no other information responsive to Ms Choi's requests.
27. On 20 November 2019 Ms Choi filed a document headed "Applicant's reply," (the third submission) together with a further statement. She responded to the third decision and advised that: 1. she wished to proceed with her application; 2. there were 8 pieces of information she was seeking that had not been disclosed; 3. there had not been a reasonable search for that information; 4. a search of the Police back up system is required, as are broader searches; 5. she wanted permission to issue summonses to Marlene Parker (the author of the first report), Jennifer Thom, Ashlee Kaufer, Sargent Damon Flakelar, Supervisor Caddy, Inspector Beazely and Commander Darcy; 6. the matter could not be determined on the paper because - … the respondent is not willing to release all information held, knowing there is further information in the possession of the respondent that has not been disclosed under the GIPA Act; and 1. she disagreed with some of the Commissioner's submissions with respect to whether or not, on balance, there is an overriding public interest against disclosure of information to her.
28. On 25 November 2019 the Respondent filed its final submissions entitled "Supplementary Further Submissions of the Respondent" (the respondent's third submissions).
29. On 13 December 2019 I made the following directions: In accordance with the Amended Directions made on 8 November 2019 the parties have filed evidence and submissions following the hearing which took place on 22 October 2019. Having had to the opportunity to consider that material I have determined that: 1. No further hearing is necessary and the issues requiring determination in this matter can be determined on the material and submissions filed (this includes with respect to the issues arising from Ms Choi's summons applications). 2. The entire matter is therefore reserved for decision. 3. Given the time of year and annual leave, the parties should not expect a reserved decision in the near future.

Material before the Tribunal

1. In considering this matter I have had regard to the submissions made and evidence given during the oral hearing on 22 October 2019, together with the following written material: 1. filed by Ms Choi: 1. Administrative review application filed 11 March 2019 with annexures, which include the report from the Office of the Information Commissioner; 2. Letter from Ms Choi dated 16 April 2019 with annexed email from Victims Services to her dated 28 February 2019. 3. statement (No 1) of Ms Choi dated 20 May 2019 with annexures; 4. "Applicant's submissions" dated 20 May 2019 with annexures (Ms Choi's first submissions); 5. statement (No 2) of Ms Choi dated 5 September 2019 with annexures; 6. submissions headed "Summary" dated 5 September 2019 with annexures including an audio recording (Ms Choi's second submissions); 7. one page submission related to the application for summonses headed "Applicant's reply" and dated 5 September 2019.with annexures (Ms Choi's third submissions) 8. statement (No 3) of Ms Choi dated 16 October 2019 with annexures; 9. bundle of documents headed "For Cross-examination at the hearing" filed on 22 October 2019 (Ms Choi's bundle) 10. document also entitled "Applicant's reply" dated 19 November 2019 (Ms Choi's fourth submissions); 11. statement (No 4) of Ms Choi dated 19 November 2019 with annexures; and 1. filed by the Commissioner - 1. the access application dated 13 November 2018; 2. the first decision together with copies of the information released to Ms Choi with redactions (and confidential copies without redactions provides to the Tribunal on a confidential basis); 3. the second decision with copies of the information released to Ms Choi; 4. statement of Matthew Smith, Senior Advisory Officer, Infolink, made 21 August 2019 (Mr Smith's first statement); 5. the first written submissions from the Commissioner received 21 August 2019 (the Commissioner's first submissions); 6. statement of Matthew Smith, Senior Advisory Officer, Infolink, made 17 October 2019 (Mr Smith's second statement); 7. submissions from the Commissioner dated 21 October 2019 and headed, "Supplementary Submissions of the Respondent" (the Commissioner's second submissions); 8. the third decision together with copies of the information released to Ms Choi with redactions (and confidential copies without redactions provided to the Tribunal); 9. open submissions from the Commissioner dated 25 November 2019 and headed, "Supplementary Further Submissions of the Respondent" (the Commissioner's third submissions); and 10. confidential submissions from the Commissioner dated 25 November 2019 and headed, "Supplementary Further Submissions of the Respondent" (the confidential third submissions).

Issues requiring determination

1. Four issues require determination in this matter.
2. Two are of an interlocutory or procedural nature. They are: 1. whether a further hearing is required, or whether the issues requiring determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal; and 2. a consideration of whether the summonses sought by Ms Choi requiring witnesses to attend and give evidence should issue.
3. The two issues requiring determination in the substantive proceeding are those set out in the Commissioner's third submission, namely: 1. Whether the respondent holds any further documents responsive to the access application, reviewable under s 80(e) of the GIPA Act; and 2. Whether there is an overriding public interest against disclosure of the material that has been withheld by the Commissioner, reviewable under s 80(d) of the GIPA Act.

Should the application be determined without a further hearing?

1. Subsections 50 (2) to (4) of the NCAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
2. In this case the Commissioner wants the outstanding issues to be determined on the papers, while Ms Choi wants a further hearing at which she wishes to cross-examine summonsed witnesses. Obviously, these two questions impact on each other, with a hearing being required if the summonses requested by Ms Choi issue.
3. The context in which I am required to decide whether this matter can be determined on the papers, without a further hearing, needs to be fully understood. All the records held by the Commissioner show that Ms Choi made a complaint of rape to Police on 4 November 2016. She does not agree with this and alleges that she made a complaint to Police and was interviewed with respect to the rape on 12 October 2019.
4. She is unable to identify the Police officers who she says she made a complaint to, and who interviewed her on that date. As a reading of her third statement, in which she outlines these events reveals, she is able provide generic descriptions of the individuals and places involved, including drawings, but no specifics.
5. The fact that the Commissioner has found no records relating to the events that Ms Choi says occurred on 12 October 2016, has led her to: 1. allege the Commissioner and officers involved in investigating her rape complaint are lying and deliberately hiding records; and 2. engage in a minute analysis and comparison of the records that have been released, in an effort to argue that the events they relate to did not occur or have been manipulated for some ulterior purpose.
6. Ms Choi's insistence on a new hearing is predicated on her belief that the Commissioner holds further information responsive to her request which is deliberately not being disclosed. In her fourth submissions she argues that broad searches are required (e.g. to cover the possibility of documents being referred to in a different COPS Event). There is no evidence that suggests that this is a real likelihood, beyond speculation on her part.
7. The situation is not helped by the reality that obtaining the information now disclosed as being in the Commissioner's possession has been a slow and repetitive process, requiring three attempts by the Commissioner to locate information responsive to the access application. It is a situation in which Ms Choi understandably approaches the information disclosed by the Commissioner with suspicion.
8. The Commissioner called evidence from Mr Matthew Smith who was cross-examined by Ms Choi. He gave evidence as to the searches undertaken, the further searches he proposed to undertake, and their sufficiency. He also gave evidence with respect to the why he thinks there is an overriding public interest against disclosure of the information that the Commissioner had not disclosed. His statements address the same issue. Ms Choi had the opportunity to cross-examine him.
9. The Commissioner does not propose to call any further evidence from Mr Smith or any other witness. The Commissioner relies on Mr Smith's evidence with respect to the public interests against disclosure in clause 1(d)and (f) of the Table to s 14 of the GIPA Act (in the context of the COPS Event), with respect to the redactions from the recently released document 7. Ms Choi was able to cross examine Mr Smith about that evidence.
10. The Commissioner does not wish to cross-examine Ms Choi. The Commissioner opposed summonses being issued to the Police officers and employees nominated by Ms Choi.
11. For the reasons set out below I have decided to refuse all Ms Choi's requests for summonses to issue to various officers and employees of the Commissioner. A hearing is therefore not necessary to enable them to give evidence and be cross-examined.
12. The only other purposes that would be achieved by a further hearing are: 1. to again address the public interests against disclosure relied on by the Commissioner in the recently disclosed document 7, about which Ms Smith has given evidence and been cross-examined on (with respect to other documents) and on which the Commissioner relies; 2. to allow for further oral submissions in circumstances where the parties have made written submissions addressing all issues.
13. In those circumstances, I accept the Commissioner's submission that Ms Choi will suffer no disadvantage if the proceedings are determined on the papers. The issues for determination in this case can be adequately determined by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. In reaching that conclusion I am cognizant of s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) which provides that - The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
14. Holding a further hearing would simply prolong the proceedings, I think for little or no benefit, and involve the parties and the Tribunal in further expense which is not in proportion with the importance and complexity of the subject-matter of the proceeding: see s 36(4) NCAT Act.
15. I therefore determine under s 50(4) of the NCAT Act that a further hearing is not required and dispense with a further hearing.

The summons applications

1. When I initially decided to set this matter down for hearing, it was apparent that Ms Choi wished to cross-examine all officers and employees of the Commissioner who had anything to do with her rape complaint and its investigation, and with her access application. At paragraph 22 above, I set out the warning I gave Ms Choi concerning the decision in Lonsdale v University of Sydney [2015] NSWCATAP 277, and the limits it places on her ability to choose (and summons) witnesses from the relevant agency.
2. In Lonsdale the Appeal Panel was hearing an appeal against a Tribunal's members refusal to issue summonses directed to staff of an agency. The Appeal Panel said - 31 The review jurisdiction of the Tribunal is not strictly adversarial in the way seen, for example, in civil jurisdictions such as consumer claims or home building disputes. The object of the proceedings is to ascertain the 'correct and preferable' administrative decision having regard to 'all relevant factual material' and 'any applicable written or unwritten law': Administrative Decisions Review Act 1997, s 63. To that end, the agency is obliged to furnish to the Tribunal all material in its possession that it considers relevant to the proceedings: s 58. The Tribunal has an active role to play in scrutinising and assessing the documents for which protection is sought, and forming a view as to what might be relevant to its consideration of the matter. It will first decide if the documents are of a kind to which the consideration relied upon by the agency applies. It will then weigh the considerations for and against disclosure, having regard to the leaning position in favour of access (GIPA Act, ss 12, 13). Critical to its consideration will be the evidence relied upon by the agency, and the testing of that evidence by the review applicant. Sometimes there will be little that the review applicant can effectively add to the process, because the applicant (and any witnesses called by the applicant) will not have seen the documents in issue. 32 It is clear law that no party has property in a witness of fact or in an expert witness (see, e.g., Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384-5 per Lord Denning MR). Allowing the respondent to summons witnesses (whether to produce documents or to attend) who belong to the staff of the agency (or, in a case of the present type, third parties with whom the agency has business relationships) has the potential to subvert the agency's ability to present its case, and introduce into the process persons who it could have called, but has chosen not to call. There would, we think, need to be strong reasons for allowing a summons to proceed to issue in those circumstances. There must be clarity as to the forensic purpose served by such a step. It is open to the Tribunal or the registrar to form a view as to whether the witnesses to be produced by the agency and the material produced in connection with the decision under review (including the documents in dispute) provide sufficient, relevant information to enable it to hear and determine the issues that arise. 33 It would, we think, ordinarily not serve any legitimate forensic purpose to allow a review applicant to call witnesses who are bound by the agency's position (its officers) or who support that position (the third parties). Those persons would often have knowledge of the content of the documents for which protection is sought, and there is a real danger that proceedings might be prejudiced or miscarry because of inadvertent disclosures or provision of contextual information. There might be a need to deal with hostile witness submissions. This all has the potential to make the proceedings more prolix. 34 Decisions allowing the issuance of summonses should be mindful, we think, of the emphasis in the NCAT Act on the adoption by the Tribunal of practices that facilitate the just, quick and cheap resolution of the 'real issues' in proceedings (s 36(1), the guiding principle), and 'are proportionate to the complexity of the subject-matter of the proceedings' (s 36(4)).
3. Ms Choi has not heeded my warning regarding the decision in Lonsdale.
4. Proceedings under the GIPA Act are concerned with access to government information. "Government information" is defined in s 4 to mean - … information contained in a record held by an agency. "Record" is then defined in Schedule 4, thus - (1) In this Act - record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
5. When one reads Ms Choi's second, third and fourth submissions it rapidly becomes apparent that her principal object in seeking to cross-examine operational police is to conduct a de facto review of the investigation that Police conducted into her rape allegation, and to establish that the investigation ended after Police were provided with information about her by staff from the University of Technology Sydney. This is, in turn, associated with a series of other applications Ms Choi has made against the University of Technology Sydney: see for example Choi v University of Technology Sydney [2020] NSWCATAP 18; Choi v University of Technology Sydney [2019] NSWCATAD 176; Choi v University of Technology Sydney [2017] NSWCATAD 198 among others. Ms Choi's aim is to gather evidence from the witnesses she wants to cross-examine that either: 1. provides her with further evidence about the course of the rape investigation, and the decision not to proceed with it; and/or 2. points to the existence of a record not disclosed by the Commissioner. There is no evidence that any such a record exists: only assertions on Ms Choi's part. She is on a search to see what she can find: a fishing expedition.
6. In her fourth submission, after requesting that summonses issue to her expanded list of witnesses, Ms Choi explained, referring to her amended access application (see paragraph 2 above) - 1. I need to see their appearance in relation to sub-point (1). 2. I need to listen to the voices of Jennifer Thom and Ashlee Kaufer in relation to sub-point 4. 3. I need to access the information in relation to UTS of sub-points (3) (5) (6) (7) (9) (10) (11) (12) (13) and (14).
7. Proceedings under the GIPA Act are concerned with the provision of government records: not information held in people heads and not information that is not found in a record. To attempt to use proceedings under the GIPA Act to review the conduct of government agencies and their officers or staff, amounts to the use of those proceedings for a collateral purpose. Attempts to use review proceedings in the Tribunal for a collateral purpose are to be rejected: Crewdson v Central Sydney AHS [2002] NSWCA 345; GA v The University of Sydney [2009] NSWADT 230.
8. Importantly, the explanations proffered by Ms Choi for wishing all of the summonses she seeks to issue do not disclose a legitimate forensic purpose in relation to the issues requiring determination in this case. Seeing peoples faces and hearing their voices in not a legitimate forensic purpose in the context of a review under the GIPA Act. The fact that Ms Choi wants or needs access to information that she asserts exists in a record, without more, does not constitute a legitimate forensic purpose.
9. Ms Choi has disclosed no basis, beyond that they were involved in the rape investigation, or in the consideration of access application, for wishing to call Sargent Damon Flakelar, Supervisor Caddy, Inspector Beazely and Commander Darcy.
10. I am not satisfied that there is any clarity as to the forensic purpose Ms Choi seeks to achieve by issuing summonses to the persons requested. In those circumstances, in accordance with the decision in Lonsdale, no summonses will issue.

Were reasonable searches made for the information sought?

1. There have been three separate decisions made by the Commissioner releasing information in accordance with Ms Choi's amended access application (see paragraph 22 above).
2. The first decision, made by Ms Parker as delegate of the Commissioner: 1. released COPS event E540486091 which was created on 4 November 2016, subject to redactions, in response to sub-points 1, 4 and 9; and 2. found that there was no information held in response to sub-points 10 - 13.
3. The Commissioner released on 28 December 2018: 1. relevant entries from Detective Senior Constable Thom's notebook (redacted); and 2. Email correspondence addressed to Detective Senior Constable Thom's from Ms Choi (but which reads as intended for Ashlee Kaufer) Ms Choi dated 7 November 2016.
4. The second decision, made by Mr Smith as delegate released in full: 1. a request for information from Victims Services dated 9 August 2017; 2. a second request for information from Victims Services dated 7 February 2018; and, 3. a report (apparently for Victims Services) from Senior Constable Kaufer dated 12 February 2018.
5. In his statement made on 17 October 2019 Mr Smith set out his understanding of the information systems used by NSW Police which include: 1. the Computerised Operations Policing System database (COPS) which is used to store information relevant to investigations, is updated as the matter progresses, and is only closed, with the authority of a senior officers, when there are no outstanding tasks left; 2. the records management system (RMS) database; 3. View IMS, a database used to store large material "including audio and visual material, recordings of interview and PDFs": it includes signed witness statements; 4. with respect to information exchange with Victims Services a system called IASK that allows both agencies to upload and download information. He also noted that Victims Services have independent but limited access to COPS with respect to applicants for victim's compensation; and 5. Mr Smith noted that individual Police also keep note or duty books in which they record their daily notes and have individual email boxes.
6. Mr Smith's statement outlined how he had searched each of the databases using search various terms associated with Ms Choi's name and time frames relevant to her access application. The time frames he used were between 1 October 2016 and 30 November 2016.
7. The COPS search had yielded two COPS entries. E540486091 (to which the access application was addressed) and E26304804. Mr Smith said that all records relating to E540486091 had already been provided to Ms Choi (albeit redacted). He had examined E26304804 (which was outside the scope of the request) and there was - … no indication in that record that [Ms Choi] had ever been formally interviewed at a Police station or that a case file had been created for that matter).
8. His search of the RMS using the name "Choi" had returned too many results to reasonably assess. A search using the name "Jae Choi" had returned the correspondence with Victims' Services that had already been disclosed. It also returned a document relating to another person with the name "Choi". A search using the name "Jae Hee Choi" returned the already disclosed Victims Services correspondence. There was no results relating to correspondence or communication with UTS.
9. At the hearing on 22 October 2019 the Commissioner proposed to undertake the following further searches: 1. a search of Detective Senior Constable Thom's email inbox; 2. a search of Detective Senior Constable Thom's duty book; 3. a search of Senior Constable Ashlee Kaufer's email inbox; and 4. a search of Senior Constable Ashlee Kaufer's note book.
10. As already noted, Mr Smith gave evidence and was cross examined on that day. Having heard his evidence, I accept that he is very familiar with and fully understands the record keeping systems maintained by the Commissioner. He has the authority necessary to thoroughly search those records. Having heard his evidence I have no reasons to doubt his credibility or expertise.
11. The third decision contains details of the results of the further searches which were performed after the hearing by Mr Smith of the duty book and note books, and (at his instigation) by the Digital Technology and Innovation Group of the email boxes. The decision outlines the search criteria used with the mail boxes. I am satisfied that these were wide enough to catch any communication within the scope of Ms Choi's requests, including all communication involving her, Victims Services and UTS. The email search resulted in the discovery of emails between Ms Choi and Senior Constable Ashlee Kaufer's in November 2016 (8 pages). These were released in full to Ms Choi.
12. The decision also explains that Mr Smith personally examined copies of Detective Senior Constable Thom's duty book (document 7) and Senior Constable Ashlee Kaufer's note book. He decided to release both in part, subject to fairly substantial redactions, many on the basis of relevance.
13. As the Commissioner points out in the Commissioner's second submission, the issue of whether or not an agency has complied with its obligation under 51(2) to conduct reasonable searched is not one over which the Tribunal has specific review jurisdiction under the GIPA Act: McClymont v Department of Family and Community Services [2017] NSWCATAD 202. The Tribunal does however have specific jurisdiction to review decisions that government information is "not held" by the agency under s 80(e). In doing so, the Commissioner bears the burden of establishing that the not held decision is justified. This will often necessarily involve a consideration of the searches conducted by the relevant agency under s 51: see Webb v Port Stephens Council [2018] MSWCATAP 224 at [40].
14. Section 53 of the GIPA Act provides - (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.
15. In Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5 Judicial Member N Isenberg wrote - 11 What constitutes a sufficient search has been considered by the Tribunal in a number of cases. In Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], the President said that the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, should be adopted in addressing sufficiency of search issues. In Shepherd the Information Commissioner said at [19] that there were two questions for consideration were: '(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.' 12 This approach has been followed by the Tribunal in a number of cases such as DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 ( Patsalis ); Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35; O'Hara v North Sydney Council [2005] NSWADT 100 (O'Hara ); and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56. 13 It is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69]. 14 With regard to the second part of the test set out in Shepherd, President O'Connor considered the key factors in assessing whether a sufficient search had been carried out in Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. These factors included, relevantly, the ability to retrieve any documents that are the subject of the request. What constitutes a sufficient search will vary with the circumstances. 15 In Patsalis at [63], President O'Connor said that the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate: see also O'Hara. In Patsalis, the documents to which the applicant sought access had existed but were subsequently lost. Numerous searches were conducted but failed to find them and, ultimately, his Honour concluded at [59] that 'it would be a waste of time to ask the agency to do any more searches'.
16. While the decision in Camilleri was set aside in part on appeal, Judicial Member N Isenberg's comments with respect to adequacy of search were not the subject of that appeal: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19. They retain their force and have been followed many cases: e.g. Saggers v Environment Protection Authority [2013] NSWADT 109; AIN and Medical Council of NSW [2013] NSWADT 112; Mizzi v Commissioner of Police NSW Police Force [2013] NSWADT 150 and Hula v Commissioner of Police NSW Police Force [2013] NSWADT 153.
17. In her fourth submission, from paragraphs 28 to 56, Ms Choi specified the information which she seeks, and laid out her grounds for believing the relevant records exist. These are: 1. A copy the COPS report for Event number E540486091 printed after 19 November 2019. Ms Choi suggests that there are may be updated versions of this document and wants a recent one. She has been supplied with a version printed at the time of her access application. The Commissioner says the document is unchanged. The reality is that Ms Choi has been provided with a copy of the COPS Event (with redactions) printed in response to her access application. She is not entitled to more. 2. A number of records relating to events that Ms Choi says took place on 12 October 2016 when she says she reported being raped to the Police. These include - 1. any records relating to an interview with her on 12 October 2019, including a statement given by Ms Choi - the only evidence that an interview occurred at that time is Ms Choi's insistence that it did, and her generic descriptions of the individuals and places involved. 2. a USB that Ms Choi says was provided to Police on 12 October 2016 - Ms Choi says that page 4 and 5 of the COPS Event suggest that she gave the Police audio files. While there is a discussion of the audio files in the COPS event, there is no suggestion that the files were given to Police or that the conversation took place on 12 October 2016. The record shows it took place on 4 November 2016. 3. the Duty Book and Note Book of Jennifer Thom regarding the investigation in late October 2016 - this request is based on Ms Choi not believing that the contents of Ms Thoms' duty book for 4 November 2016 is true. She insists that there must be other relevant entries that accord with her preferred time frame. This is contrary to the weight of all the evidence. 1. Further correspondence between Police and Victim's Services which Ms Choi suggests is likely to be backed-up on Police systems. as it was not found in the email searches. She says that because it was not found in the email searches the information must be "destroyed". I do not accept that proposition. The more likely and probable explanations is that there is no such record.
18. It follows that I do not accept that there are reasonable grounds for believing that the documents Ms Choi has specified exist.
19. In the light of all the evidence I am satisfied that the searches made by the Commissioner have been reasonable in all the circumstances. In making that finding, I acknowledge that Ms Choi continues to assert that she reported being raped on a different day to that indicated by Police records. On the evidence before me it is clear that the Police have now carried out comprehensive searches of their databases and the only pertinent records those searches have revealed are those connected to a report of rape made on 4 November 2016. The searches should have revealed records relating to any similar complaint made by Ms Choi on 12 October 2016. They did not.
20. Collectively, I am satisfied that all reasonable searches have been made in response to Ms Choi's access application. The Commissioner is not required to search back up systems in accordance with s 53(4) of the GIPA Act.

Requirements of the GIPA Act in relation to disclosure

1. The objects of the Act are set out in s 3(1) - In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
2. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).
3. Subsection 14(1) provides that government information described in Schedule 1 of the GIPA Act is to be conclusively presumed to give rise to a public interest consideration against disclosure.
4. With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides - Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information 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
5. In considering Ms Choi's access application it is clear that disclosure would reveal her personal information. This favours disclosure. So too, is the general public interest in favour of disclosure and Ms Choi's right to have access to government information relating to her.
6. While Ms Choi maintains that release of the information is likely to reveal misconduct in the investigation of her rape complaint, I am not persuaded this is the case or that it constitutes a public interest in favour of disclosure.
7. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides - There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
8. In considering whether there is an overriding public interest against disclosure s 16 provides that the following principles apply - (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
9. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that - The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
10. The public interest considerations against disclosure relied on by the Commissioner in this case are to be found under the following categories in the Table to s 14: 1. "Responsible and effective government", specifically cl 1(d) and (f) which provide: 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) … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) … (f) prejudice the effective exercise by an agency of the agency's functions, … 1. "Individual rights, judicial processes and natural justice", specifically cl 3(a) - There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, …
11. Before deciding an access application which, among other things, seeks an individual's personal information, s 54 of the Act requires that the agency take such steps as are reasonably practicable to consult with that person before providing access. In this case the individuals concerned oppose release.
12. Section 55 provides that personal factors relating to an applicant can be considered in deciding to grant access. In limited circumstances they may also be considered in refusing access. That section provides - (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. (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.
13. In this case, personal factors are only applicable to the personal information consideration under clause 3(a). As Ms Choi does not press for release of the personal information of others, it is not necessary to consider personal factors further.
14. In exercising functions under the Act s 3(2) instructs that - It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
15. Section 73 requires that access be unconditional.

Material redacted because it is irrelevant

1. In the note book and duty book entries disclosed there a redactions made on the basis that the material blacked out relates to other matters and is not material to Ms Choi's access application. I have examined the confidential copies of all of the documents concerned and can confirmed that the redacted material is not relevant to Ms Choi's request.

Consideration of claimed public interests against disclosure

Section 14 - T 3(a) - Disclose personal information

1. As I understand Ms Choi's submissions, she does not seek to have access to the personal information relating to other individual persons. This is also the understanding of the Commissioner, who, out of caution, has also made general submissions that personal information of other should not be disclosed.
2. I have examined the confidential copies of all of the documents concerned and can confirmed that the information which has been redacted because it is the personal information of an identified or identifiable individual, is exactly what it is claimed to be. I accept that there is a public interest consideration against disclosure with respect to that information.

Section 14 - cl T 1(d) - Prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions

1. The Agency submits this applies to: 1. information redacted from pages 4, 5 and 6 of COPS Event E 540486091; and 2. the information on pages 2 and 3 of Detective Senior Constable Thom's duty book (document 7).
2. In Commissioner of Police NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] the Appeal Panel of the Administrative Decisions Tribunal outlined the general approach to be adopted in determining whether or not information is confidential information. In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service.
3. In McDonald v Commissioner of Police, NSW Police [2019] NSWCATAD 6 the Tribunal explained, at [66]-[67] that - It is not necessary to show that there is an express obligation or understanding about the information being obtained in confidence as this can be inferred from the circumstances in which the information was obtained (see Bray v North Coast Area Health Service [2009] NSWADT 93). One determines whether or not the information is confidential by referring to what the agency says the conditions were under which it conducts its services in relation to such matters particularly the circumstances at the point of receipt of such information, see Commissioner of Police for NSW and Camilleri [2012] NSWADTAP19. In deciding whether or not information is confidential the informants may have been advised that it would be treated confidentially, or they may have a reasonable expectation of that. See Amos v Western NSW Local Health District [2017] NSWCATAD 359. What I must also determine is whether disclosure could reasonably be expected to have the prejudicial effect. In considering whether or not there would be a prejudice to the future supply of confidential information one does not ask whether it would reasonably be expected that a particular person considering disclosure may refuse to supply such information but rather whether the agency's general ability to obtain such information in the future would be likely to be prejudiced (Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19).
4. In his first statement Mr Smith explained that these redactions from COPS Event E 540486091 are a mixture of confidential information and personal information relating to the person named as a suspect. The confidential information provides relevant background and current information obtained by police concerning the allegations made by Ms Choi. Mr Smith gave evidence that release of this information would prejudice the ability of police to obtain information form witnesses who voluntarily come forward to speak with Police.
5. In response Ms Choi argued that the person suspected of a crime (and associates) are not witnesses. Mr Smith took issue with this in the course of his evidence, stating that anyone questioned by Police during an investigation is regarded as a witness. I think the common understanding is that any person who was present when an alleged offence was committed (including perpetrators and victims), or persons who are able to provide evidence relevant to such an offence, are witnesses.
6. Ms Choi in submissions speculated about what the suspect might have told police, and asserted that release of what a suspect (and associates) voluntarily told police would not prejudice the future supply of confidential information. I do not accept that argument. I am of the view that Mr Smith's evidence with respect to confidential communications between Police and witnesses is to be preferred. I accept that disclosure of what witnesses, including a potential suspect, tell Police will prejudice the supply to Police of such confidential information, and will, in turn, impact on the effective exercise of Policing functions.
7. With respect to the redactions from Detective Senior Constable Thom's duty book the Commissioner relies on Mr Smith's evidence with respect to the COPS events, saying that the information contained in the duty book is substantially the same as the material redacted from the COPS event, about which Mr Smith gave evidence. I agree that the information is substantially the same, although the COPS Event provides more detail. For the same reasons as those given above, I accept that disclosure of the redactions form Detective Senior Constable Thom's duty book would prejudice the supply to Police of such confidential information, and would, in turn, impact on the effective exercise of Policing functions.

Section 14 - cl 1(f) prejudice the effective exercise by an agency of the agency's functions

1. The Agency submits this applies to: 1. information redacted from page 6 of the COPS Event; 2. information on pages 2 and 3 of Detective Senior Constable Thom's duty book.
2. The Commissioner has redacted one sentence from page 6 of the COPS Event on this basis. That sentence is a surmise, or a conclusion of fact, by the author. In his first statement Mr Smith explained - The information redacted under T 1 (f) relates to an opinion by the author relating to the nature of the complaint made by the applicant. Such opinions are kept by Police officers on COPS Events in order to best deal with individuals in the future. I am of the opinion that the release of this information would dissuade officers from recording such information in the future… In his evidence Mr Smith added that the release of the information might disclose Police methods.
3. I do not accept Mr Smith's characterisation of the opinion as, "relating to the nature of the complaint made by the applicant." Rather, the opinion is an observation about the post complaint conduct of certain persons and an attribution of the motivations for that conduct. I do not accept that release of the information would disclose a police method. Release would do no more than demonstrate that police draw conclusions based on observable facts: hardly an investigative method, and not a surprising revelation. I do not accept that disclosure of the fact that police draw such conclusions, in the course of an investigation, is likely to prejudice effective policing by deterring police from recording such opinions. The NSW Police Force is more robust than that.
4. The Commissioner relied on the decision in Dezfouli v Justice Health [2006] NSWADT 274 in which it was found that the disclosure of opinions about a patient written by clinical staff would prejudice the effective exercise by Justice Health of its functions. There the concern of the agency was that disclosure of the notes would reveal the identity of clinicians and staff who work in a forensic hospital, where there were many unwell patients with a history of violence. The Tribunal found, at [37] - … that disclosure of the identity of staff making notes and recording observations could lead to staff being less likely to make accurate and comprehensive written notes, and that this could reasonably be expected to have a substantial adverse effect of the ability of the respondent to provide comprehensive and appropriate health care to patients.
5. The situation in Dezfouli is not comparable with the situation here. There is no evidence here suggesting a potential danger to Police officers from release of the information in issue. Their identities are known. There is no evidence from police officers indicating that the release of opinions of this nature would dissuade them from recording such opinions in the future, just an assertion from Mr Smith who characterisation of the nature of information I reject. This is to be contrasted with the situation in Dezfouli where there was evidence from a number of clinicians which pointed to real fears and concern about the release of information from which their identity could be ascertained or deduced.
6. It follows that I am not persuaded that release of the information on page 6 of the COPS Event would prejudice the effective exercise by the Commissioner of his agency's functions. As a result that information will be released to Ms Choi.
7. With respect to the information on pages 2 and 3 of Detective Senior Constable Thom's duty book, I have already found that disclosure would prejudice the supply to the Commissioner of confidential information that facilitates the effective exercise of the Commissioner's functions. In submissions the Commissioner argued that, in the alternative, disclosure would prejudice the effective exercise by the Commissioner of his agency's functions. Given the conclusion I have reached with respect confidentiality, I do not think it necessary to go down that path.

Balancing the public interests

1. I have identified that following public interests in favour of disclosure. 1. the general public interest in favour of disclosure under s 12(1); and 2. disclosure would reveal some of her personal information. I consider that the first carries significant weight, and that the second carries less, but nonetheless real, weight.
2. I have identified the following public interest consideration against disclosure. That release could reasonably be expected to: 1. prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions; 2. result in the disclosure of personal information of others.
3. I consider that each of these carries significant weight. Ensuring confidential communications with police is an essential facet of police operations. Protecting individuals who provide information to police from having their personal information disclosed to the world as large is vital.
4. In my view, the public interest consideration against disclosure of the information remaining in issue outweigh the public interest considerations in favour of disclosure.

Conclusion

1. As a consequence of the above, I make the following orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a further hearing in this matter is dispensed with. 2. Ms Choi's various applications to issue summonses in this matter are dismissed. 3. The decision of the Commissioner made 12 December 2018 is set aside with respect to the redacted information on page 6 of COPS Event E 540486091. In substitution for that decision, the Tribunal determines to disclose the redacted information on page 6 of the COPS Event, such information to be disclosed within 30 days of publication of these reasons. 4. Otherwise the decisions of the Commissioner are 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: 03 April 2020