Commissioner of Police, NSW Police Force v Barrett - [2016] NSWCATAP 86 - NSWCATAP 2015 case summary — Zoe

NSWNSWCATAP

Commissioner of Police, NSW Police Force v Barrett

[2016] NSWCATAP 86

NCAT Appeal Panel|2015-08-04

At a glance

AI case summary

Result

appellant. Partially allowed. The agency's determinations were affirmed for items 1-5 and 7 (both applicants) and item 6 (John). The determination for item 6 (Lara) was set aside and remitted to the...

Key principles

The Tribunal must assess the agency's case at the systemic level when evaluating public interest considerations against disclosure (PICADs) under s 14 of the Government...
Disclosure of 'computer printed audit trails' of database searches (items 1-5) could reasonably be expected to prejudice the conduct, effectiveness or integrity of audit...
The personal factors of the applicant under s 55 of the GIPA Act (including identity, relationship with others, motives, and other particular factors) may be taken into account...
A decision under s 58(1)(f) of the GIPA Act (refusal to confirm or deny existence of information) is exceptional and non-transparent; the agency must explain why it is necessary...

Issues before the court

Whether the agency's refusal to disclose computer audit trails of database searches (items 1-5) was justified under s 58(1)(d) of the GIPA Act due...

Plain English Summary

The NSW Police Force refused to give a former police officer and his wife (also a former officer) access to records about who had searched police databases for their personal information. The couple suspected improper surveillance. The Tribunal's Appeal Panel decided that the Police Force could keep secret the 'audit trails' showing who searched for their car registration, driver's licence, names and address, because revealing this could damage the police audit system. However, for the wife's request about intelligence reports, the Tribunal said the Police Force could not simply refuse to say whether such reports existed; they must either confirm they have none, or properly assess whether they should be released under the normal public interest test. The case was sent back to the Police Force to make a proper decision on this last point.

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Catchwords

123194

Judgment (12 paragraphs)

[1]

REASONS FOR DECISION

(For ease of understanding, in the body of these reasons we will describe the two respondents to this appeal as the 'applicants' or by their first names where differentiation is required. We will describe the appellant, the Commissioner, as 'the agency'.)
On 23 September 2010 John Barrett and Lara Hogan applied under the Government Information (Public Access) Act 2013 to the Commissioner of Police, NSW Police Force for access to seven categories of information. With one exception, the application was refused. They applied to the Tribunal for review of the decision. The Tribunal at first instance made orders in favour of the applicants: Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 31; and Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 32. The Commissioner appealed to the Appeal Panel. We set aside the Tribunal decisions on error of law grounds: Commissioner of Police NSW Police Force v Barrett [2014] NSWCATAP 68 (21 April 2015). After hearing from the parties, we decided to retain the matter and dispose of it. We have undertaken a rehearing.
The issue before us is whether the agency's decision in respect of each of the categories of information sought was the correct and preferable one in the circumstances.
For the rehearing the agency filed new submissions and some new evidence. It is also relied on submissions and evidence previously filed in the proceedings at first instance in 2013 and in the earlier proceedings before the Appeal Panel in 2014. Lara, the second applicant, filed new submissions, and also relied on previously filed material. John, the first applicant, did not file any new submissions.
The oral hearing was set for 4 August 2015. Lara had arranged to participate by telephone. At the commencement of the hearing, we were unable to make contact with her on the number provided to us. We expressed surprise at her non-involvement as she had filed detailed written submissions in accordance with directions. We decided to proceed in her absence, hear the agency's case and have regard to Lara's written submissions. We then reserved our decision.
Later that day Lara contacted the Registry and expressed concern about not being contacted in relation to the hearing. The file showed that she had provided the Registry with a replacement number a few weeks before the hearing, but the replacement number had not been given to the Appeal Panel. Consequently, the Appeal Panel relisted the matter, provided Lara with a transcript of the 4 August 2015 hearing and reconvened on 26 October 2015.

[2]

Background

The events of the evening of 29 October 2009 form the background to the access applications in dispute in this case. A fuller account appears in the two first instance decisions, and the Appeal Panel decision. The following is a summary.
John was a recently retired police officer. He was out on his nightly walk. An unmarked car pulled up near him. First one occupant of the car and then two other occupants, all in civilian dress, alighted from the car, produced police identification (which he recognised) and asked him questions that he declined to answer. The car bore no police markings. The three persons returned to the car and left. His wife, Lara, was at home. She was a serving police officer at that time and retired a few months later.
A few minutes later as John was approaching his home he saw another car with four persons passing by the house. Lara's car was parked in the driveway. Based on his experience in the police force, he thought that the passing car was another unmarked police car, and the occupants were likely to be police officers. He thought that the occupants might have been recording the car registration numbers, and possibly recording other information.
John lodged a complaint with the agency over these activities. The agency undertook an investigation. It confirmed the occurrence of the first event, and said that it was part of a police operation in the area relating to thefts from homes. The investigation did not assist in relation to the second event of concern. It revealed nothing to suggest that there was any further police activity that night that might have involved surveillance of their home in the way suspected.
John and Lara were dissatisfied with the response, and proceeded on 23 September 2010 to make a joint access application. As explained in our previous decision, the Agency dealt with it as separate individual access applications. John and Lara applied for: (1) The computer printed audit trail/s of all people who have accessed NSW Registration plates [The number of Lara's car] using any computer system, from 1 September 2009. (2) The computer printed audit trail/s of all people who have accessed RTA records for NSW Drivers Licence Number [John's number] and/or [Lara's number] from 1 September 2009. (3) The computer printed audit trail/s of all people who have accessed RTA records for John Barrett (and/or Lara Barrett ) from 1 September 2009. (4) The computer printed audit trail/s of all people who have undertaken a check, using any computer system, on John (and/or Lara Barrett ) from 1 September 2009. (5) The computer printed audit trail/s of all people (including their position and location) who have undertaken a check, using any computer system on [their then home address] from 1 September 2009. (6) All computer printed copies of all COPS events, intelligence reports, etc relating to John (and/or Lara Barrett ) from 1 September 2009. (7) Photocopies of the notebook, duty book, or any other written record of any person conducting any of the above checks (including notebook number, duty book number, name, position and command they were attached to.
We have detailed in our earlier decision the history of the agency's determinations and redeterminations. The net position when the matter reached the Tribunal (17 July 2012) was that one record only had been released, a COPS police event report relating to Lara pursuant to item 6of Lara's application.
An agency may make one of six kinds of final decision in relation to an access application. Section 58(1) provides: 58 How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5.
All of the adverse decisions ((b) to (f)) are reviewable, as are a number of other decisions of a procedural kind: see s 80.
The common object of items 1 to 5 of the access application was to obtain access to the transaction details of any agency scrutiny of three personal data fields relating to the applicants (car registration, name, address). The agency refused access on the ground that there was an overriding public interest against disclosure of the information (s 58(1)(d)).
While the access applications link item 7 to items 1 to 5 (see the reference to the 'above checks'), it is necessary to consider the agency case in respect of item 7 separately. As explained below, in the case of items 6 and 7 of John's application, the agency relied on s 58(1)(b) (such information not held by the agency). In the case of items 6 and 7 of Lara's application, it relied on s 58(1)(f) (there is an overriding public interest against disclosure of information confirming or denying that fact).

[3]

(1) Decision in relation to Items 1 to 5

As explained in our earlier decision, ss 12 to 15 of the GIPA Act deal with the approach to be adopted in making decisions under s 58(1)(d).
Section 13 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.
It will be seen that s 13 speaks of an 'overriding public interest against disclosure' (OPIAD) as one to be ascertained after weighing 'public interest considerations against disclosure' (PICADs) against 'public interest considerations in favour of disclosure' (PICFDs). PICADs are the subject of s 14, PICFDs are the subject of s 12, as supplemented by s 15. What can constitute a PICFD is not limited in the way seen in relation to PICADs.
In that regard, s 12 provides that there is a 'general public interest in favour of disclosure': s 12(1). There is no limit to the matters that may be regarded as public interests in favour of disclosure: s 12(2). The Information Commissioner may issue guidelines in that regard: s 12(3).
In contrast, 'only' the considerations set out in the Act in the Table appended to s 14 may be taken into account as PICADs: s 14(2). (This is not a case where the agency has relied on any conclusive presumptions against access, so s 14(1) is not relevant.) The Table is divided into seven basic categories, and there are extensive sub-categories in the case of the first five categories.
The weighing of the balance required by s 13 is to be made in accordance with' the principles set out in s 15. These principles are: (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.
The agency bears the onus of justifying its decisions. Section 105(1) provides relevantly: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency ...
Section 55 permits the decision-maker to have regard to 'personal factors' of the applicant that might bear on either granting access or refusing access. It provides: 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note. An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73.

[4]

Agency's Case

The agency's evidence in support of this part of its decision is contained in open and confidential affidavits of Inspector Steven Sheather, filed 16 November 2012, and an open statement from Inspector Matt McCarthy, filed 19 June 2015. Inspector Sheather was, at the time of his affidavit, a senior legal adviser to the commander of the Professional Standards Command. Inspector McCarthy was, at the time of his statement, manager of the intelligence directorate, State Crime Command.
Inspector Sheather construed the application as a request for the identities of all people who had made use of the Police Force's major agency-wide database, the Computerised Operational Policing System (COPS) to conduct searches for the information referred to at items 1 to 5. This interpretation was not disputed by the review applicants.
The inspector gave a detailed account of the features and purposes of COPS. He noted that a 'COPS event' record is created whenever an officer enters information into the system after attending to a criminal or non-criminal activity (which is not a purely internal administrative matter).
He said that police do not record 'things like routine patrolling, conveying prisoners, general conversations with members of the public, delivery of exhibits, attendance at court, or routine resource requests'. He outlined the internal classification system that grades COPS data into various degrees of confidentiality and applies restricted access protocols. The system can be searched by various parameters, including name, address or vehicle registration number. He then referred to various usual policing situations, and how the COPS database might be accessed to inform police involved in dealing with those situations. He referred to the type of security controls that apply to entering and using the COPS system, and the involvement of auditors and the like in checking the uses made of the system to ensure compliance with security, confidentiality, privacy and other rules applying to the use of the system.
He went on to explain the process required to retrieve from the system the kind of information sought by the review applicants. He said that information required by the applicants requires several audits to be conducted using various search terms before it can be determined who might have done a search on the system of the kind to which their application refers. He described the output of such a process as an 'audit report'.
He then went on to deal with the operational considerations that support non-disclosure of the information. He referred in particular to the following PICADs found in s 14, Table 1: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): ... (f) prejudice the effective exercise by an agency of the agency's functions, ... (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (a) reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant, (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,
We note that in its subsequent submissions the agency has not pressed consideration 2(a) above.
Inspector Sheather considered that disclosure of an 'audit report' could cause detriment to the Police Force in the effective discharge of their functions by enabling persons to become aware of whether they have been, or are, under investigation. He gave examples of settings in which an applicant could piece together information known to them with information recorded in police databases to work out whether they are under investigation. He also explained why it might be possible to ascertain from information released whether the police were making use of an informer.
We should emphasise that his evidence was not asserting that any of these concerns might be applicable to the present case, but they were being raised as systemic considerations which justified non-disclosure.
Inspector McCarthy supported Inspector Sheather's assessment. He provided some further illustrations of how disclosure of these documents could prejudice police operations.
This case has been conducted throughout on the basis of the exchange of written evidence and submissions, together with the presentation to the Tribunal by the agency of some confidential evidence. That has meant that the review applicants have not actively interrogated the agency witnesses in relation to their evidence. The only oral hearings have been those held at Appeal Panel level. The agency witnesses were not required for cross-examination by either review applicant.
Therefore, as we see it, the agency witnesses' evidence as to the nature of the systemic considerations put in issue by release of the information has not been directly challenged.
The agency submitted that the public interest considerations against disclosure should be accorded 'significant weight' in determining the public interest under s 13 of the GIPA Act.

[5]

Applicants' Case

In her written submissions filed for the appeal (17 July 2015), Lara criticised various aspects of the two officers' statements. In particular she noted that they only raised various negative hypotheses In support of non-disclosure, they did not raise any positive considerations that supported disclosure in a case of this kind. She doubted the significance of any threats to effective law enforcement in the present case, given the significant passage of time since the applications were first made (now five years) and the absence of investigation or concerns directed to her or her former husband (confirmed by the Office of Information Commissioner review of the original agency decisions, and by the Appeal Panel in our earlier decision at [127]).
We have also had regard to written submissions (20 March 2013) prepared by Mr K Dailly of counsel on behalf of both John and Lara.
Mr Dailly commenced by observing that it was necessary for a consideration to which clause 1 of the Table referred to be one that 'could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)'. The agency's evidence needed to meet that threshold.
We accept his submission that the test to be applied is an objective one, approached from the viewpoint of a reasonable decision-maker, and that is the adverse effect asserted must be one that is more than a mere possibility, risk or a chance: see, generally, Flack v Commissioner of Police [2011] NSWADT 286 at [40]-[41], Neary v State Rail Authority [1999] NSWADT 107, Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163.
Mr Dailly submitted that the matters to which Inspector Sheather referred were 'no more than mere speculation'. Ultimately, as he noted, the Tribunal must determine, as a question of fact, whether the consideration arises in the circumstances.
In her submissions for our hearing, Lara referred to the following public interest considerations favouring disclosure: (a) to ascertain whether there was improper or unlawful access to her details, (b) whether, in an attempt to justify any improper or illegal access, police created a false intelligence report; (c) to promote accountability for monitoring the use of COPS; and (d) to promote public confidence in the use of COPS for proper and lawful purposes.
She said minimal significance should be given to Inspector Sheather's arguments based on the mosaic effect of granting access (i.e. an applicant could, holding part of the mosaic, obtain a fuller or compete picture, by obtaining via an access application the part of the mosaic held by the agency).
She submitted that release of the information would not, in any significant way, undermine the ability of the Police Force to perform its core functions. She noted that neither applicant had any criminal history, and provided proof in our case in the form of a national police certificate.
She included in her submissions a detailed criticism of the internal investigation undertaken into her and John's complaint that preceded the making of the GIPA Act application. She challenged the adequacy of the investigator's inquiry in relation to the events of the evening of 29 October 2009. She questioned the suggestion in Inspector Sheather's evidence that the investigator had the authority to conduct reverse audits of the agency databases in the manner described by Inspector Sheather and to reach a conclusion as to whether there had been an inappropriate access on or about the evening of 29 October 2009.

[7]

Consideration

We accept that any GIPA Act request may present a risk for a law enforcement agency that an applicant may gain a tactical advantage in relation to an ongoing investigation or in relation to any prospective investigation. The conclusive presumptions give comprehensive protection to some of the internal databases of the agency (see Sch 1, cl 7). They do not include the COPS database.
As has been emphasised in earlier decisions of the Appeal Panel (e.g. Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19), it is usually desirable at the outset of the weighing process required by s 13 to assess the agency's case at the systemic level as that is the way the protections given by many of the s 14 considerations are cast. However, it does not follow that the agency will succeed simply because it established that the systemic aspect of the case. The agency submissions did not cavil with that point (see para [22]). (We deal with Camilleri and this point more fully later in these reasons (see [84] ff).)
We are satisfied that the agency evidence established that disclosure of the information of the kind sought in this case in relation to items 1 to 5 'could reasonably be expected' to have the 'effect' of prejudicing the effectiveness or integrity of any audit by revealing its results (cl 1(h)). As to the next PICAD raised (cl 1(f)), the evidence, in our opinion, was too general and inexact, to reach any firm view as to whether such a disclosure would prejudice the 'effective exercise of the agency's functions'. We accept that disclosure under GIPA Act could have the 'effect' of prejudicing the detection of a contravention of the law, or the present or future enforcement of the law (cl 2(b)).
While there is a 'general public interest in favour of disclosure of government information' (s 12(1)), the weight to be given to that interest will vary significantly depending on the functions of the agency to which the access application is directed, and the character of the information.
In this case the agency is a law enforcement agency, and the information sought might have shed light on one admitted interaction between the agency and the applicants, and, in the applicants' view, on a second event.
The aspect of the request with which Inspector Sheather had the most concern was the opening words of each of items 1 to 5. They sought access to the 'computer printed audit trails of all people' who have utilised the databases for searches, of the kinds listed in items 1 to 5, over the period specified in the request. Inspector Sheather considered that to accede to any request of this kind so framed, would put at risk the security, integrity and confidentiality of the auditing processes and standards of the agency. This is a serious concern, and it was not displaced by any contrary evidence or challenge.
A more narrowly expressed request and one that had, perhaps, been confined to a narrower time period might not have given rise to such strong concern, for example one directed to investigator searches of the number plate, driver's licence, home address search functions. But this request was, as we see it, widely framed, and a request that uses terms such as 'computer audit trails' opens up the issues of reach and effect on the organisation's audit practices raised by Inspector Sheather. He explained in his statement that there are processes and functionaries on the audit side of the agency's functions whose work would be compromised by a positive response to a request of this kind.
The PICAD to which we attach significant weight is that disclosure might reasonably be expected to the effect of prejudicing the conduct or integrity of audit functions of the agency.
The GIPA Act s 55, as explained in our previous decision, now clearly permits the decision-maker to have regard in the weighing process to personal factors which might support the case for disclosure. In this case the first interaction with the John is admitted, but the second suspected interaction is not admitted. As the second interaction is not admitted, the justification for the access application as it relates to the number plate search (Lara, item 1) is weak, and the same applies to the home address search (item 5). The applicants clearly have a suspicion they were targeted unfairly on the night in question, but the first encounter (confined to John, and not in the immediate vicinity of the home) does not provide any plausible basis for suspecting that searches might have proceeded, or occurred in advance, in relation to integers such as home address, name plate and possibly identification. The personal factors that might favour disclosure are not strong in this case.
Moreover, there has been an internal investigation which found that the first event did involve non-uniformed police in an unmarked car, and some details have been provided. In these circumstances the personal factors are not significant. It may be that a narrow, and more focussed request, may not have been seen in the same way by us.
We are satisfied that, on balance, that there is an overriding public interest against disclosure of the information sought.
The agency's decision in relation to items 1 to 5 of the application will therefore be affirmed.

[9]

(a) John's Application:

A determination that no information responsive to the application is held by the agency will usually be contested on the ground that a fuller or better search would or should have revealed relevant information. Section 53(1) provides that: 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.
Section 53 then goes on to explain the way in which the agency is to carry out searches. Most importantly s 53(2) provides that the agency 'must undertake such reasonable searches as may be necessary' to find the information requested, and the searches 'must be conducted using the most efficient means reasonably available to the agency'.
In the present case, the agency relies on the statements of Richard Hanson, 19 June 2015, and the confidential statement of Senior Sergeant Brand, 5 November 2012, in particular pars 5-10. Mr Hanson's evidence is that on 5 October 2010 a staff member from the Information Access and Subpoena Unit (IASU) searched the COPS system using two identifiers, name and date of birth, for both John and Lara, covering the period 1 September 2009 to 23 September 2010, and in Lara's case using both the surname 'Barrett' and the surname 'Hogan'. As noted earlier, one document was located in relation to Lara, a COPS event record dated 3 December 2009, and was provided to her.
Mr Hanson stated that those searches would also identify whether there were any Information Reports created within the COPS system during the relevant period relating to Lara. He said that it may not be possible for officers of the IASU to actually access all Information Reports identified as a result of such searches, for example, if access to a particular report is restricted. As previously mentioned, Information Reports is the internal term used for material that records intelligence information. In this regard Inspector Sheather referred in his statement at pars 22-23 to the nature of an Information Report. He said that this is the method by which information that is or could be of interest to police is recorded. The information 'includes information provided by informants, community sources, criminals, or other law enforcement agencies'. He added; 'It may record an officer's own observations', and that 'information recorded in an information report is often referred to as "intelligence"'.
Inspector Sheather went on to explain that information reports are highly protected. He referred to the rating and classification system, and the access authority protocol. We will not repeat the detail then given as to other parts of the COPS system.
There is no other evidence going to the searches undertaken. The applicants chose not to directly challenge the evidence.
We are satisfied by the agency's evidence. We will therefore affirm the 'no documents held' decision as it relates item 6 of John's request.

[10]

(b) Lara's Application:

To reiterate s 58(1)(f) provides: An agency decides an access application for government information by: (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
The decision is reviewable under s 80(g) of the Act.
As we explained in our previous decision, s 58(1)(f) provides a ground for refusal that goes beyond the most usual types of final decision in relation to an access application - either no information held (s 58(1)(b)) or information refused because of an overriding public interest against disclosure of another kind (s 58(1)(d)). In contrast, a decision made under s 58(1)(f) is equivocal and non-transparent.
We said at pars [80]-[81] of our earlier decision: 80. As we see it, there would need to be special features unique to the particular case or, for example, an area of operation of the agency in which affected records might be held that justify reliance on this ground. We agree with the observations to this effect seen in open para [19] of the Tribunal's reasons. 81. The key question, as we see it, is what is about the case that justifies the exceptional response of choosing to refuse to confirm or deny that documents of the kind sought by the application exist or do not exist.
The agency queried whether the Appeal Panel had by these observations introduced an additional onus, going beyond the ordinary onus cast on the agency by s 105 of the Act.
The s 105 onus, as we see it, relates only to the ultimate question posed by s 58(1)(f) - has the agency demonstrated an overriding public interest against disclosure of information confirming or denying the fact that it holds the information sought. As we have said previously, in justifying a refusal based on s 58(1)(f) the agency should explain why it is necessary for it to go beyond the most usual grounds for adversely responded to an application (s 58(1)(d) and s 58(1)(b)). (Two of the grounds deal with relatively exceptional situations: information already available (s 58(1)(c)) and application too burdensome to process (s 58(1)(e) as informed by s 60).)
If it is government information of the kind specified in Schedule 1 (e.g. Cabinet information, legal profession, documents affecting law enforcement and public safety), it is to be conclusively presumed that there is an overriding public interest against disclosure, thereby satisfying s 13 (see s 14(1)). For all other types of government information, the balancing test required by s 13 applies. In either of these circumstances the agency response in effect acknowledges that information of the kind sought exists, though in the case of a refusal of Schedule 1 information, there may be little accompanying detail. An agency should, we think, explain (in confidential session) whether any information in its possession that is the subject of a s 58(1)(f) response is of a kind that falls within Schedule 1 or is of a kind that would have been likely to have won protection applying the balancing test of s 13. Where the underlying circumstance is that the information does not exist, but the agency does not wish to confirm or deny that fact, an agency should for similar reasons, explain whether any serious searches have been undertaken to establish whether the information exists.
We note that the agency's case (both at first instance and before us) took the same approach. In our view properly, it examined the question of whether the information sought by items 6 and 7 would have been protected under s 13, and therefore could have been refused under s 58(1)(d).
On the other hand, we accept the agency's submission an agency is not required to establish as a pre-condition to a decision based on s 58(1)(f) that reliance on s 58(1)(d) or s 58(1)(b) would have been successful. We simply see the question of whether the information is of a kind that would have won protection either as Schedule 1 information or after applying the balancing test as relevant to whether a decision founded on s 58(1)(f) is the correct and preferable one. It seems to us that it would be perverse if information for which there was no strong case for protection under s 58(1)(d) could gain protection by invoking s 58(1)(f). There would have to be exceptional reasons justifying an apparent contradiction of this kind.
Item 6. The agency's open submissions drew attention to the affidavit of Inspector Sheather in which he referred in general terms to the kinds of data held in the police intelligence system, and the Table 14 PICADs that would apply in a case involving s 13. These were: cl 1(d) - 'prejudice the supply to an agency of confidential information that facilitates the effective exercise of the agency's functions'; cl 1(f) - 'prejudice the effective exercise by an agency of the agency's functions'; cl 2(a) - 'reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant'; and cl2(d)- 'prejudice the prevention, detection, or investigation of a contravention or possible contravention of the law'.
The submissions then referred to the problem of the mosaic effect that disclosure can produce in a particular case. We discussed this issue at some length in our earlier decision.
At [28]-[30] of the submissions, the agency referred to the weight to be given to the PICFDs that might be seen as relevant. The submissions referred to the following matters: the applicants' motives for seeking access; the alternative avenues that have been used (the internal police investigation) or could be used (procedures under Part 8A of the Police Act); the Commissioner's investigation that was in fact undertaken back in 2009; and that given what had occurred, the public interest considerations in favour of disclosure had been met.
At pars [57]-[58] of the submission, the appellant said: 57 The appellant accepts that there may be circumstances where the public interest considerations in favour of disclosure in a particular case outweigh the considerations against disclosure of information confirming or denying that information reports are held, such that reliance on s 58(1)(f) would not be appropriate. However, it is submitted that this is not such a case. For the reasons discussed above at [28]-[30], the public interest considerations in favour of disclosure should be given minimal weight. 58 Applying the principles enunciated by the Appeal Panel in its previous decision in this matter, particularly at [80]-[81]), it is submitted that the 'unique features' of the operational field of intelligence collection and use by the NSWPF that justifies the exceptional response of a decision under s 58(1)(f) to refuse to confirm or deny whether records are held. Specifically, intelligence information has a high degree of sensitivity, and is maintained according to the highest standards of confidentiality. Maintaining this level of confidentiality is key to the success of law enforcement efforts.
The agency's submissions sought to draw support from the Appeal Panel's approach in the case of Camilleri cited earlier. In Camilleri, a case where the decision was based on s 58(1)(d) and therefore required the s 13 balancing process, the point being made was that the Tribunal must examine the systemic case put by the agency for relying on a PICAD before moving forward to the question of what the relevant PICADs are, what the relevant PIFDs are, what relevance personal factors of the access applicant have (s 55), and resolving the s 13 question. It is not enough simply to focus on the specifics of the circumstances that led the access applicant to make the application, and the value to the access applicant of having the material released. Appropriate regard must be given to the systemic considerations that have led the agency to take the position that it has, as well as any particular concerns the agency might have about the instant case.
In that case a person the subject of a complaint to the 000 hotline had sought details of the call, and the identity of the complainant. The agency refused to disclose the information applying the s 13 balancing test. The Commissioner had argued in that case that several s 14 PICADs were relevant to maintaining strict protection of information given by hotline callers. The Tribunal should have engaged in some evaluation of those PICADs, cast at the systemic level, as part of its overall weighing process. The Appeal Panel agreed, and therefore set aside the Tribunal's orders, and remitted the case for rehearing. It did not follow that if that systemic consideration was addressed, that necessarily therefore the case in support of the relevant PICAD(s) would prevail over the PIFDs in the circumstances of the case.
That the Police Force has a COPS system and that the COPS system has a number of business elements, including an intelligence element known internally by the description Information Reports, is well known. The GIPA Act recognises the need for special protection of a number of sensitive databases. For example, s 43 of the Act prevents an access application from being made at all for 'excluded information' of an agency. Nearly all of the exclusions (see Sch 2) relate to the information gathered by supervisory agencies in government responsible for the investigation and resolution of complaints against the ordinary agencies of government. The supervisory agencies mentioned include bodies such as the Independent Commission Against Corruption, the Ombudsman, the Police Integrity Commission and the Crime Commission. The conclusive presumptions for the purpose of s 14(1) are set out in Sch 1. They include a conclusive presumption (cl 4) which covers some of the information held by the NSW Police Force, notably documents held by the Counter Terrorism and Special Tactics Command, and the State Crime Command. These are small but significant parts of the overall operations of the NSW Police Force. It will be seen that no special provisions of this kind are made for mainstream information gathering and holding systems of the NSW Police Force, such as the COPS system.
In our view the submissions in this case, on the back of (what appears to be) a request of a routine kind, argue a case allowing the agency to either confirm or deny the existence of any information caught by the application which is held as an 'Information Report' in the intelligence sub-system of the COPS database.
In our view, Parliament well understood when it passed the GIPA Act that records held in the COPS database including 'Information Reports' (like similar intelligence holdings in a range of other law enforcement agencies) were to be considered on the usual basis, i.e. by reference to the s 13 balancing process. The agency argued its case for reliance on s 58(1)(f) at the generic level. In our view, there is no case for conferring, in effect, a generic right to refuse to confirm or deny that existence of the information sought because it happens to be held in the Information Reports segment of the COPS database. There was nothing put to us about the specific circumstances of this case that might justify a different approach. We do not consider that reliance on s 58(1)(f) is established.
There is nothing in the confidential part of the submissions that affect our opinion.
Item 7. In support of its case for invoking s 58(1)(f) in respect of this part of the application, the submissions refer to the open and confidential statements of Senior Sergeant Brand.
While the text of item 6 of the access application did specifically seek 'intelligence reports', item 7 merely refers to 'copies of photocopies of the notebook, duty book, or any other written records of an person conducting the above checks (including notebook number, duty book number, name, position and command they were attached to.'
In our view, there is nothing persuasive in the material to explain how a decision under s 58(1)(f) is justified in relation to this part of the application. The documents to which it refers are basically the primary work diaries of the agency's officers - the notebook, the duty book and the like. There may be good reasons not to process such a request at all (voluminousness for example, see s 58 (1)(e)) or there may be specific PICADs seen as overriding the PIFDs, but in our view there is no tenable case that a blanket refusal to confirm or deny the existence of such information is justified in the circumstances of the case.
As explained in our previous decision, we had read this item of the access application as being supplementary to items 1 to 5 of the application. The 'checks' to which it refers appear to embrace the 'audits' with which items 1 to 5 are concerned.
The difficulty we have, however, is that having upheld the case in relation to items 1 to 5, as it is a corollary the same result would apply to item 7. The case has not been argued on that basis, but we see no utility in allowing the case to continue in respect of item 7 in these circumstances.

[11]

Conclusions

Our net position therefore is that the agency's decision should be affirmed in relation to items 1 to 5, and 7. It should also be affirmed in respect of item 6 as it relates to John.
It should be set aside as it relates to item 6 as it relates to Lara. That leaves the question of what steps should now be taken in that regard.
In our view, the dispute needs to be brought to an end. It has gone on for almost six years, and the events that triggered the access application were almost seven years ago. It has been in the Tribunal for more than three years. The Civil and Administrative Tribunal Act 2013 refers to the desirability of 'facilitating the resolution of issues between the parties in such a way that the cost to the parties and to the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings': s 38(4). Our orders will dispose of the case in all but one aspect (Lara, item 6). In our view, the agency should either make a co-operative decision to disclose any information it may have to Lara subject to undertakings or restrictions; or alternatively process it formally under the Act, either as a decision pursuant to s 58(1)(b), if it has information or pursuant to s 58(1)(d), if it has no information. That means the case to that extent will stay alive for some time.
Administratively, however we propose that this set of proceedings be finalised in the Tribunal. The means by which both of these ends can be achieved (finality of these proceedings in the Tribunal, and preserving Lara's interest in a new decision in relation to item 6 of the application) is to exercise the power given by s 63(3) of the Administrative Decisions Review Act 1997, i.e. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: ... (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
We will remit the access application of Lara in respect of item 6 to the agency for reconsideration and redetermination within 42 days of the date of this decision. If the matter returns to the Tribunal it is to do so as a new review application.
ORDERS 1. Decision following Rehearing: The following are the final orders of the Tribunal in this matter. 1. Affirm agency's determination in relation to items 1 to 5, and item 7 of the review applicants' access applications. 2. Affirm agency's determination in relation to item 6 of the first review applicant's access application (John). 3. Set aside agency's determination in relation to item 6 of the second review applicant's access application (Lara). This matter is remitted, pursuant to s 63(3)(d) of the Administrative Decisions Review Act 1997 to the Commissioner for reconsideration and redetermination within 42 days of the date of this decision.

Commissioner of Police, NSW Police Force v Barrett

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