Choi v Commissioner of Police, NSW Police Force

Choi v Commissioner of Police, NSW Police Force - [2020] NSWCATAP 211 - NSWCATAP 2020 case summary — Zoe

[3]

Application under the GIPA Act

In 2016, Ms Choi was studying at the University of Technology, Sydney and living in the same house as a man we will call Mr X. Ms Choi says she went to a police station in October 2016, shortly after she had moved out of the house, and alleged that Mr X had assaulted her when they had been living together. Ms Choi wrote in her submissions that although she had used the term when making the allegations, she found that word upsetting. We have not used that word unless it is contained in a quote.
A COPS Event records that Ms Choi attended the police station on 4 November 2016. Ms Choi says she attended on 12 October 2016.
The COPS Event sets out the details of Ms Choi's allegations and Mr X's version of events following an informal interview with him. Mr X is referred to in the document as PN (person named). Police acknowledge that, as part of the investigation of Ms Choi's allegations of assault, Senior Constable Thom telephoned an employee of the University of Technology and then spoke to Ms Choi on the phone. Following the investigation, police did not take any action against Mr X.
About two years later, on 13 November 2018, Ms Choi applied under the GIPA Act for certain information. She included the following context in her application: In/around October 2016, I met two police officers at Dee Why Police Station to report about [name deleted] who raped me. On/around 7 November 2016, one female police officer called me and stated that she had called the University of Technology Sydney ("UTS") where I was studying at that time. This female police officer closed my file against my interest because she was influenced by UTS's statement. One police at Dee Why officer (sic) told me that this female police officer was Ms Ashlee Kaufer. However, Ms Kaufer said it is DSC Thom.
Ms Choi then listed the information to which she sought access. Later she updated that list to request the following 14 items: (1) The names of the two police officers who interviewed me at Dee Why Police Station in/around October 2016. (2) The names of the police officers who contacted and communicated with University of Technology Sydney ("UTS"). (3) The dates when the police officers communicated with UTS. (4) The name of the female police officer who called me on/around 7 November 2016. (5) The information which UTS disclosed to the police officer(s). (6) The information which the police officer(s) disclosed to UTS. (7) The names of the UTS's staff who the police officer(s) communicated. (8) Emails/correspondences/documents the police officer(s) received from UTS Emails/correspondences/documents the police officer(s) received from [three names] (Note - [three email addresses] their email addresses. They may have used other email accounts). (9) The documents produced by the police officers regarding my matter. (10) The names of the police officer(s)'s names who communicated with Justice Victims Services. (11) All the information or documents disclosed to the Justice Victims Services. (12) All the emails/correspondence from the Justice Victims Services. (13) The names of the staff at the Justice Victims Services who the police officer(s) communicated. (14) The documents produced by myself in/around October 2016.
The background to items 10 - 13 is that Ms Choi had applied to Victims Services, an agency of the Department of Communities and Justice, for support following the alleged assault. Victims Services had contacted the NSW Police Force requesting information about those allegations.
After conducting further searches, the Commissioner provided Ms Choi with the following additional information: 1. two requests for information from Victims Services received by the Commissioner, regarding Ms Choi's report of assault, made on 9 August 2017 and 7 February 2018; and 2. a response prepared by Senior Constable Ashlee Kaufer on 12 February 2018.
At the beginning of the Tribunal hearing on 22 October 2019, the Commissioner requested more time to conduct further searches for the information. Following those searches Ms Choi was given access to parts of Detective SC Thom's duty book and parts of SC Kaufer's notebook.
Ms Choi was not satisfied with the Commissioner's decision. She pressed her request that summonses be issued to certain people to attend and give evidence about the information to which she was seeking access. The Tribunal refused that application and dispensed with a hearing: NCAT Act, s 50.
In summary, in response to Ms Choi's application and further searches, the Commissioner gave Ms Choi access to: 1. the record of her version of events in the COPS Event (redacting personal information and Mr X's version of events); 2. extracts from Detective Senior Constable Thom's duty notebook (with redactions in relation to entries which did not relate to Ms Choi); 3. extracts from SC Kaufer's notebook (with redactions in relation to entries which did not relate to Ms Choi); 4. the entire email correspondence between Ms Choi and Detective SC Thom and SC Kaufer; and 5. a complete copy of the request for information from Victims Services dated 7 February 2018 and a complete copy of the report for Victims Services from SC Kaufer dated 12 February 2018.
The Commissioner maintained the position that he did not hold any other information responsive to Ms Choi's access application.

[7]

Submissions and findings about alleged earlier report to police

Ms Choi has asserted that she reported the alleged assault to police on 12 October 2016, not 4 November 2016, and the Commissioner must hold information relating to that earlier report. The Tribunal found at [84], that the Commissioner had conducted reasonable searches for that information and affirmed that part of the Commissioner's decision. The Tribunal also noted that the Commissioner "is not required to search for information in records held by the agency in an electronic backup system": GIPA Act, s 53(4).
In reviewing the decision that the Commissioner did not hold certain government information, the Tribunal applied the reasoning in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19. That case followed a decision of the Queensland Information Commissioner in Shepherd v Department of Housing, Local Government and Planning (1994) 1QAR 464. The approach was that the Tribunal would first determine whether there were "reasonable grounds to believe that the requested documents exist and are documents of the agency". If so, the second question was "whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case." The Tribunal concluded at [83], that the answer to the first question was "no" and there was no need to ask whether the search efforts made by the agency to find the information were reasonable.
Several months after the Tribunal made its decision, the Appeal Panel handed down a decision clarifying the Tribunal's role when reviewing "a decision that government information is not held by an agency": Wojciechowska v Commissioner of Police [2020] NSWCATAP 173. The Appeal Panel concluded that the previous approach was not consistent with s 105 of the GIPA Act, which places the burden on the agency to establish that its decision that information is not held, is justified. At [44], the Appeal Panel summarised the Tribunal's task as being 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.
Despite the fact that the Tribunal in this case approached its task in a slightly different way, the Commissioner submitted that the Tribunal correctly identified the relevant factual issues and made findings about them. The Tribunal summarised the information to which Ms Choi sought access, her grounds for believing that the information exists, and the conclusions about that information as follows at [82]: (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 assaulted to the Police. These include - (a) 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. (b) 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. (c) 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 Thom's' 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. (3) 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.
Ms Choi submitted that the Tribunal based its conclusion that the Commissioner had undertaken reasonable searches for the information, on the wrong facts. For example, Ms Choi states that the finding at 82 set out above, is incorrect. She applied for the information on 13 November 2018 and the COPS Event provided shows "4/12/" but does not include the year. She maintains that the Commissioner's witness, Mr Smith, gave evidence that the year "2016" is missing. In that case, Ms Choi submitted that the Tribunal was wrong to state the document was printed at the time of her access application. Ms Choi also challenged the assertion that "the document is unchanged" when she is in possession of other versions of the COPS Event. She said the COPS Event is eight pages and Police did not provide the last page.
This ground of appeal challenges factual findings. It does not identify a question of law. We have decided not to give Ms Choi permission to appeal on these grounds because there is no reasonably clear injustice to Ms Choi in relation to the different versions of the COPS Event. The variations are minor and do not relate to the substantive information contained in that document.

[8]

Submissions and findings about existence of records relating to phone call

These grounds of appeal appear to relate to the information Ms Choi requested about the phone call between DSC Thom and an employee of UTS. Ms Choi requested the names of those involved, the information each disclosed and any emails or other communications between the investigating officers and UTS. The Commissioner's decision was that no information was held in response to this part of Ms Choi's application. The Tribunal's reasoning, affirming that part of the decision, is at [62]: 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.
Ms Choi submitted that information expressed to other public sector agencies, such as UTS, or gained through the investigation, is government information under the GIPA Act. The information from DSC Thom and SC Kaufer can be regarded as information that is held in data form and police are obliged to make a new record under s 75(1) of the GIPA Act.
This ground of appeal raises questions about the proper construction of the terms "government information" and "record" and the meaning of s 75(1) of the GIPA Act. Those are questions of law. In our view, the Tribunal has construed the definitions correctly. As the Tribunal explained at [59] - [60] and [62], government information is defined in s 4 of the GIPA Act as "… information contained in a record held by an agency." The word "record" is then defined in Sch 4 to mean: (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.
Consequently, an agency may decide that it does not hold "government information". Despite the Commissioner searching for any "record" which would contain the information Ms Choi requested, none was found. As the Tribunal pointed out at [62], a person's knowledge, (information held in people's heads) is not information in a record. We agree with the observation of the Appeal Panel of the Administrative Decisions Tribunal that the GIPA Act, "is not a vehicle for seeking answers to questions a person might have in regard to . . . action taken by a government agency, or seeking an explanation by an agency as to why particular action was taken": Davison v NSW Department of Education and Training [2013] NSWADT 25, [3] and [24].
The terms of s 75 of the GIPA Act do not support Ms Choi's submission that police are obliged to make a new record of government information. Section 75(1) provides that: (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (Emphasis added.)
Section 75(1) only applies to government information held by the agency. If the agency has made a decision under s 58(1)(b) that "the information is not held by the agency", the question of how access may be provided does not arise. The Tribunal has affirmed the Commissioner's decision that it does not hold any government information about certain matters including the phone call between DSC Thom and a UTS employee.

[9]

Finding that redacted information in the COPS Event and note books should not be released (Question of Law Raised 7)

Police gave Ms Choi the COPS Event with certain personal information and Mr X's version of events redacted. The Tribunal decided that certain previously withheld information in the COPS Event should be released. The Commissioner has now given Mr Choi access to that information. Personal information was redacted from Detective SC Thom's duty book.
After the Tribunal hearing, Ms Choi obtained a copy of the COPS Event, apparently from Victims Services, with only the personal information redacted. Consequently, she now has a copy of Mr X's version of events, which was redacted from the version given to her by the Commissioner. The fact that she has obtained that information does not make the Commissioner's decision to withhold it wrong. We will address the grounds of appeal relating to the Tribunal's decision that certain information in the COPS Event should not be disclosed because there is an overriding public interest against disclosure.
Ms Choi was initially under the impression that the Tribunal did not have access to a complete copy of the COPS Event. In those circumstances she submitted that the Tribunal could not properly assess whether there was an overriding public interest against disclosure of the redacted information. There is no need to address this aspect of the ground of appeal because we are satisfied that the Tribunal did have a confidential copy of the COPS Event without redactions. (See 37(b) and (h) of the Tribunal's decision.)
At [86] - [94], the Tribunal set out the principles relating to the disclosure of the government information requested by Ms Choi. In brief, under s 12 there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 13 provides that there will only be an overriding public interest against disclosure if "there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure." The public interest considerations against disclosure are limited to those in the Table to s 14. Below we address the public interest considerations against disclosure, which the Tribunal took into account and Ms Choi's grounds of appeal relating to those considerations.

[10]

Supply of confidential information

Under cl 1(d) of the table to s 14, 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) - (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions
Based on the evidence of Mr Smith, the Tribunal concluded that disclosing the information Mr X gave to police is likely to prejudice the supply to police of such confidential information and to impact on the effective exercise of policing functions. The Tribunal came to the same conclusion about the redactions from Detective SC Thom's duty book.
Ms Choi asserted that, contrary to the Tribunal's finding, the information Mr X told Detective SC Thom was not confidential information. The Tribunal's conclusion was based on his own assessment of the material and Mr Smith's evidence. Ms Choi did not persuade the Tribunal at the time that her view should be preferred. We are satisfied that the Tribunal's conclusion was open on the evidence before it and there has been no error of any kind in the Tribunal's reasoning or findings on this issue.
Ms Choi also claimed that police should be required to disclose information that was not recorded in the COPS Event to allow her to correct wrong information. We do not accept that submission because, under s 15 of the Privacy and Personal Information Act 1998 (NSW), Ms Choi's right to correct information held by the Commissioner is limited to personal information about her. The information, which she has identified as not being disclosed, is not her personal information.
Ms Choi disputed the Tribunal's finding at [110] that the information contained in the duty book is substantially the same as the material redacted from the COPS Event. The only basis for that assertion is that the information was recorded on different dates. The Tribunal had access to a full copy of both documents and Ms Choi has not provided any reasonable basis on which it can be implied that this finding was incorrect. We refuse leave to appeal on that ground.
Ms Choi claims that the Tribunal failed to consider police operations when weighing considerations for and against disclosure. Providing access to the redactions was said to be the first priority for police operations. She claimed that the information Mr X gave to police was "all lies." We assumed that Ms Choi is referring to one of the examples of public interest considerations in favour of disclosure in the note to s 12 - namely, "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." The Tribunal reproduced s 12 at [89] of the decision but neither party submitted that the Tribunal should take that consideration into account. We refuse to give Ms Choi permission to raise this issue for consideration when she did not raise it in the Tribunal proceedings.
Ms Choi raises the question as to whether clause 1(d) of the Table to s 14 should apply to every word in the box blocked out at pages 4-6 of the COPS Event. She provides no supporting argument. Neither this point, nor any of the other grounds of appeal identified above demonstrate that the Tribunal has made an error when applying cl 1(d) of the Table to s 14 of the GIPA Act.

[11]

Exercise of agency's functions

Under cl 1(f) of the table to s 14, 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,
Ms Choi submitted that cl 1(d) and cl 1(f) are separate considerations but the Tribunal considered them together in relation to Detective SC Thom's duty book. At [117], the Tribunal held that: 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.
This reasoning is logical because the Commissioner's submission was put in the alternative. As the Tribunal had found that disclosure would prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, and that consideration displaced the presumption of disclosure in s 5, there was no need for the Tribunal to consider the Commissioner's alternative argument.
Ms Choi considers that the Tribunal should have taken into account that the effective exercise of the agency's functions includes determining any future complaints she may make. She says that unless the redacted material is disclosed, and she is given an opportunity to correct it, police may regard any future complaint as a false claim. We have noted above that Ms Choi may only apply to correct her personal information. At [90] and [118], the Tribunal considered, and attributed weight to the fact that some of the information was Ms Choi's personal information. Ms Choi has not provided any basis on which the decision to redact any personal information discloses an error.

[13]

Decision not to issue summonses (Question of Law Raised 2)

This ground of appeal is that the Tribunal was wrong to dismiss Ms Choi's application to issue summonses to various people to attend and give evidence at the hearing.
The Tribunal's reasons for dismissing the summonses is at [56] - [65]. At [60], the Tribunal concluded that Ms Choi's "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."
The Tribunal referred to the decision of Lonsdale v University of Sydney [2015] NSWCATAP 277 relating to the issuing of summonses in proceedings under the GIPA Act. Ms Choi submitted that the Tribunal wrongly applied that decision because the information sought has no relation to legal professional privilege. The Tribunal did not mention legal professional privilege in the decision and we do not understand the relevance of that submission. Ms Choi added that her application to summons Detective SC Thom and SC Kaufer had merit because "most information sought could be simply obtained by cross-examining" those police officers. As the Tribunal said, the GIPA Act does not give Ms Choi the right to request access to information that is in people's heads. The Tribunal went on at [62], to say that: 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.
Ms Choi submitted that the Tribunal's finding that she was using proceedings under the GIPA Act for a collateral purpose was wrong. She did not elaborate on that submission. Whether or not Ms Choi was using the proceedings for a collateral purpose was not an issue the Tribunal needed to consider in determining whether the Commissioner had made the correct and preferable decision. As that finding had no effect on the Tribunal's ultimate decision, we refuse permission for Ms Choi to appeal on this ground.
Ms Choi submitted that the Tribunal made an error by considering her applications to issue summonses to seven people when she only requested that summonses be issued to DSC Thom and SC Kaufer. We note that Ms Choi asks the Appeal Panel to amend the number of people she wishes to summons from six to two and to review the Tribunal's decision to refuse to issue summonses to DSC Thom and SC Kaufer to attend and give evidence. The submission that she would have changed her mind about the number of summonses had there been a review of that request before the hearing, does not raise a question of law and, applying the principles in Collins v Urban at 84, we refuse permission for her to appeal on a ground other than a question of law.

[15]

Ignoring allegations of misconduct (Question of Law Raised 5)

Ms Choi claims that the Tribunal ignored her applications "under s 112 and s 12(2)(e)" and that has given rise to unfairness.
Section 12(2) of the GIPA Act gives various examples of public interest considerations in favour of disclosure of information. one example is where: (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.
In relation to that provision the Tribunal stated at [91], that: 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.
According to Ms Choi the Commissioner engaged in misconduct by attempting to conceal the conversation DSC Thom had with an employee of UTS. The Tribunal made findings about Ms Choi's submission about misconduct. There was no error in those findings nor do they disclose bias against Ms Choi.
Section 112 of the GIPA Act gives the Tribunal power, on its own initiative, to report conduct of an agency to the relevant Minister. 112 Report on improper conduct If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of - (a) the Minister who appears to NCAT to have responsibility for the agency, or (b) if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner.
Ms Choi requested the Tribunal to "report the Respondent's bad faith to the Minister in pursuant to s 112 of the GIPA Act after completing the review thoroughly." The Tribunal did not refer to that request in the reasons. There can be no breach of procedural fairness, by actual bias or otherwise, because of a failure to consider an application under s 112. That provision does not give an applicant the right to apply for a matter to be referred to the Minister. The terms of that provision state that the Tribunal may bring the matter to the attention of the Minister "on its own initiative."

[21]

29 April 2020 decision

In response to her application for a sound recording of the 22 October 2019 hearing, Ms Choi states that the Tribunal gave a "no response" decision. She purports to appeal from that decision on a question of law. That question is framed as follows: Whether in the circumstances SM Molony requested the Appellant not to put the hearing sound recording files on YouTube, there was no determination of a closed hearing, there is no restriction for the publication in the Reasons for Decision, and no order in relation to the confidential application, the refusal to provide the hearing sound recording CD is reasonable.
Ms Choi attempted to elaborate on this ground of appeal in a 'statement' dated 2 May 2020; I lodged an application for hearing sound recording CD. However, on 16 April 2020, NCAT refused to provide stating that the hearing was confidential hearing. However, Senior Member Molony did not say that. He even requested me not to upload the hearing file at the YouTube. Thus, I committed that I would not upload the hearing recording file.
Ms Choi attached a copy of the 16 April 2020 email from the NCAT Registry and a copy of her email to the Registry dated 26 April 2020. Her query was whether the Registrar's decision about her entitlement to a sound recording or transcript of the hearing was the Registrar's decision or the Tribunal's decision. She said she needed any decisions to lodge an internal appeal.
We understand Ms Choi to be appealing from the Tribunal's failure to make a decision about her access to a sound recording or transcript of the hearing or from the Registrar's decision on that subject. The decision, expressed in an email dated 10 June 2020, was that: This is to confirm that, there was a public session and a confidential session at the hearing of Matter 2019/78831 on 22 October 2020. Therefore, the Tribunal cannot provide the sound recording. You can access the transcript of the non-confidential part of the hearing. If you are interested in the non-confidential part, please complete the transcript application form.
We note that this information accords with the information provided on NCAT's website.
A decision as to whether a party may be given a sound recording or a transcript of proceedings, is not a decision made under the NCAT Act or the NCAT Regulation or NCAT Rules. Consequently, it is not a decision that comes within the Appeal Panel's internal appeal jurisdiction.
We also note that Ms Choi's appears to be aggrieved because she was not aware that a confidential hearing was held on 22 October 2020. The Commissioner has provided her with the references in the transcript where the Tribunal told her that she would be excluded from that part of the hearing.

At a glance

Court

Decision date

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Judgment (24 paragraphs)

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Legislation Cited (5)

Cases Cited (7)

Cited By (10)