Dalzell v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-04-03

Background

These proceedings concern a request that Belinda Ann Dalzell (the applicant) made to the Commissioner of Police, NSW Police Force (the respondent) on 22 December 2021 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act).
The applicant sought access to the following documents: (a) Copy of job request and job completed information in relation to when Macksville Police Station was repainted in or around 2008. Any reports, photographs or emails in relation to the condition of the paint at Macksville Police Station that relate to this job request and if any lead readings were detected at that time. (b) Copy of job request and job completed information for the carpets being replaced at Macksville Police Station in or around 2008 and any information/reports as to why the carpet was replaced at that time. (c) Copy of all job requests for blocked gutters/downpipes at Macksville Police Station due to bug infestation between 2006 - 2020. (d) Copy of job request and job completed information for the roof and gutters being replaced at Macksville Police Station in or around 2011. Any photographs, reports or emails in relation to this job. (e) Copy of any job requests and job completed information for the repainting of Macksville Police Station since 2008. (f) Copy of any inspection reports completed at Macksville Police Station for hazardous materials by a qualified inspector from 2000 to present day.

Clause 1(e) to the Table to s 14(2) of the GIPA Act.

This provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency.
The respondent decided that the information listed in the schedule of documents includes advice/opinion/recommendations given during a deliberative process undertaken in relation to risk assessments, reviews and recommendations provided by contractors, which were relied upon when carrying out maintenance work to enhance the safety of police officers and staff employed at the Macksville Police Station. It gave this consideration "high" weight.

Clauses 2(d) and 2(e) to the Table to s 14(2) of the GIPA Act.

Clause 2(d) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to endanger, or prejudice any system or procedure for protecting the life, health or safety of any person.
Clause 2(e) provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle.
The respondent decided that the information in the schedule of documents, which it redacted under cll 2(d) and s (e), would reveal the site layout and photographs showing the internal layout of the Macksville Police Station. This information could enable criminals to succeed in committing offences against police staff and property. These considerations were given "strong" weight.

Clause 4(c) to the Table in s 14(2) of the GIPA Act

This provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to diminish the competitive commercial value of any information to any person.
The respondent decided that the information listed in the schedule of documents that was redacted/refused under this clause, relates to monetary values, including estimate responses and contact costs, and methodology utilised for testing. However, it did not state what weight it gave to this consideration.
The respondent also relied upon s 74 of the GIPA Act, which allows an agency to redact/delete information from a record if that information is "irrelevant" to the application, or is not within the scope, or an agency has decided to refuse access to the information.

Balancing the public interest

The respondent stated that it gave "much higher weight" to the public interest considerations against disclosure and it decided that there was an overriding public interest against disclosure of the redacted information.

Application for External Review

On 18 April 2022, the applicant applied to the Information and Privacy Commission (IPC) for a review of the respondent's decision.
On 18 July 2022, the IPC issued a Review Report under the GIPA Act and determined that: 1. The respondent's decision to refuse access because there is an overriding public interest against disclosure under cll 1(e), 1(f) and 4(c) of the table to s 14(2) of the GIPA Act was not justified; 2. The respondent's decision to refuse access because there is an overriding public interest against disclosure under cll 2(d) and 2(e) of the table to s 14(2) of the GIPA Act was justified; and 3. The respondent's decision that information it did not hold information was not justified.

Respondent's response to the IPC's report

On 1 August 2022, the respondent advised the applicant that it did not accept the IPC's recommendations and that it would not make a new decision.

Application for administrative review

On 5 August 2022, the Tribunal received the current application for administrative review, which raised grounds including the following.
In relation to item (b) of the GIPA request, the applicant stated that she sought information regarding the replacement of the carpet in 2008 (not in 2006 as indicated in the Notice of Decision). She said that she has been informed that the carpets were replaced in 2008 and that this is indicated in the RMS. However, she has not received any such records and she considered it to be "incomprehensible" that there no records are held in relation to a job of this scale and cost. She also said that she is aware that the carpets were replaced after the building was repainted as she was present at the police station when this occurred.
In relation to her request for photographs of damaged areas where works needed to be carried out, the applicant complained that all of the photographs that were produced were redacted under s 58(1)(d) on grounds of safety of police officers. She stated, relevantly: As a current serving member of the NSW Police Force and having worked at Macksville Police Station for the past 17 years, I have clear and extensive knowledge of the layout of Macksville Police Station and the procedures that occur. I do not agree that proving (sic) me with photographs that were taken during hazardous material inspections is of any danger to staff or operations within the Police Station although I see major benefit for these photographs supporting my workers compensation claim.
In relation to item (f) of the GIPA request, the applicant stated that she received two hazardous material inspection reports dated 2012 and 2016, but that she is aware that the most-recent inspection was conducted in 2020. This indicates that inspections are conducted every four years, but she has not been provided with access to reports completed in 2004, 2008 or 2020. She also stated: The reports that have been supplied indicate the presence of lead in the paint within the highest percentages of lead being detected in the southern section/offices of the building, which incorporates by office. It should also be noted that in December 2021 I requested to have an independent Hazardous Materials Inspection conducted at Macksville Police Station (at my own expense) which was also declined by the Commander. The information requested is to support my current workers compensation claim and to prevent further exposure to staff still currently working in Macksville Police Station. To my knowledge this issue has not been rectified and staff are still working in the building including my office. Every attempt I have made to obtain information about this issue has been declined redacted or simply not provided as requested. I believe that information has been declined by the Command and withheld, redacted from the GIPA application due to fear of litigation against the NSW Police Force which is not within the criteria for withholding information.
In relation to the matter generally, the applicant stated: I submit this review as I am aware that more information is available which has not been provided and I do not believe there is a public interest risk to receive photographs of damaged paintwork throughout the Police Station during a hazardous inspections report as I already have intimate knowledge of the location, layout and functioning. I also feel that by redacting or not providing the information as requested is not in the interest of the public. To the contrary I feel that employees of the New South Wales Police Force and the general public should be able to access the full extent of the lead paint issue in this and other police stations to prevent further risk to staff and the public attending such buildings and for appropriate action to be taken.

Procedural matters

On 5 September 2022, Senior Member Perrignon conducted a case conference, during which he ordered the matter to be listed for mediation on 13 September 2022. However, on 7 October 2022, the mediation date was rescheduled to 13 October 2022. In any event, the dispute did not resolve at mediation and the Mediator's report indicates that the applicant was to provide the respondent with a list of documents that had not been located by 14 October 2022, so that the respondent could review its searches.
On 18 October 2022, Senior Member Montgomery conducted a further case conference. He ordered the respondent to file and serve its evidence and submissions by 11 November 2022. He ordered the applicant to file and serve her evidence and submissions by 25 November 2022. He directed the respondent to file and serve any evidence and submissions in reply by 2 December 2022 and he listed the matter for hearing on 19 December 2022.
However, on 23 November 2022, Senior Member Montgomery extended the time for compliance with the Timetable and the timetable was further extended by Principal Member Simon on 13 December 2022.
The matter initially came before me for hearing on 16 December 2022. Mr Guy of counsel appeared for the applicant and Mr Gao appeared for the respondent. The parties advised the Tribunal that they were 'having discussions' and they asked for the matter to be 'stood over generally'.
The Tribunal declined to make the requested order. However, as Mr Gao advised the Tribunal that the respondent wished to reconsider its position, the Tribunal ordered that the matter be remitted to the respondent for reconsideration under s 65(1) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). The matter was listed the matter for directions on 17 February 2023 and the parties were granted the parties liberty to approach the Registry in the meantime if the matter resolved.
I conducted a directions hearing on 17 February 2023, at which Ms C Young appeared for the applicant and Mr Gao appeared for the respondent. The parties advised the Tribunal that they were "attempting to determine the scope of the dispute regarding outstanding documents" and that the respondent had requested, and the applicant had agreed to, a further period of 20 working days in which to conduct further searches.
On the basis of the parties' advice, the Tribunal listed the matter for hearing on 3 April 2023 and granted them leave to approach the Registry if the matter resolved before the hearing date.

Notice of Decision (Remitted)

On 28 March 2023, the respondent issued a Notice of Decision (Remitted), which indicates that searches were conducted for the following information: (a) Hazardous material reports for 2000 and 2004 relating to Macksville Police Station; (b) "Annual property condition reports" of Macksville Police Station for the years from 2005 to 2010; and (c) Email correspondence between the applicant and two named NSW Police Force employees containing the key words: 'carpet', 'gutter', 'roof', 'paint', between 1 January 2008 and 31 December 2008 and between 1 January 2011 and 31 December 2011.
The respondent stated that Ms K Morris conducted the searches for items (a) and (b) on the NSW Records Management System (RMS) and Police Property Group "P" drives. No information was located and it decided that it did not hold the information sought in items (a) and (b): s 58(1)(b) of the GIPA Act.
The respondent stated that searches for the email correspondence sought on item (c) were conducted by the Messaging and Collaboration Unit of the Technology Command . Eleven emails from 2011 were located, but no emails from 2008 were located. The officer who conducted the searches advised that the emails were collected from the "historic vault". The respondent decided to provide access to all of the emails that were located and these were attached to the decision. However, direct contact information was removed: s 58(1)(a) of the GIPA Act.
However, the respondent did not identify any public interest considerations in favour of or against disclosure of any of the information sought in the GIPA request.
On that basis, it appears that the respondent has abandoned its previous position that there is an overriding public interest against disclosure of the information that it redacted from floorplans and photographs of Macksville Police Station under cll 1(e), 2(d) and/or 2(e) of the Table to s 14(2) of the GIPA Act.

The hearing

I conducted a hearing on 3 April 2023, at which Ms K Young of counsel appeared for the applicant and Mr Gao appeared for the respondent. The parties advised that the dispute had not resolved and the Tribunal identified that the following issues require determination: 1. The scope of the GIPA request; and 2. Whether the respondent conducted reasonable searches as required by s 53 of the GIPA Act.

Respondent's Opening Argument

Mr Gao stated that the material before the Tribunal supports a finding that there is "no reviewable decision" for the purposes of s 80 of the GIPA Act, as the decision dated 28 March 2023 was made after the current proceedings commenced and the respondent's position is no longer that documents within the scope of the GIPA request are "not held".
The Tribunal rejected that argument, particularly because the Tribunal ordered the matter to be remitted to the respondent for reconsideration under s 65(1) of the ADR Act and the decision dated 28 March 2023 resulted from that order. As a result, the reviewable decision is that dated 28 March 2023.
Mr Gao then argued that the respondent has conducted reasonable searches and has not found any further information. Therefore, the respondent states that the correct and preferable decision is to affirm the decision dated 28 March 2023.

Applicant's Opening Argument

Ms Young argued that the applicant sought further documents from the respondent because it it's decision dated 23 February 2022 "refined the scope" of the GIPA request. She also argued that the respondent's searches were not reasonable.

The Respondent's Evidence

The respondent relied upon the following evidence: 1. Affidavit of Kristie Natalie Morris dated 24 November 2022. There was no objection to this affidavit and the deponent was not required for cross-examination. This was admitted and marked Exhibit 3. 2. Affidavit of Hongyi Gao dated 24 November 2022. There was no objection to this affidavit and the deponent was not required for cross-examination. This was admitted and marked Exhibit 4. 3. Affidavit of Christopher John Lane dated 30 March 2023. There was no objection to this affidavit and the deponent was not required for cross-examination. This was admitted and marked Exhibit 5. 4. Notice of Decision (Remitted) - this was admitted and marked Exhibit 6.
I refer to Ex. 3 and note that Ms Morris deposed that she has been acting in the role of executive officer of the Police Property Group (PPG) since 5 September 2022. She stated that the Ministry for Police and Department of Commerce managed NSWPF property matters between 2004 and 2005. The Police Property Group (PPG) was established in April 2006 and it is responsible for managing property (including assets, works and maintenance) and assets (i.e. fleet and equipment) in the NSWPF.
Ms Morris stated that when a GIPA request is received that relates to properties held by the NSWPF, the PPG assists by conducting searches of the relevant databases. She usually searches the following databases: 1. RMS - this is the corporate system for enabling employees to manage records that have organisational impact or significance. It is available to all NSWPF employees; 2. The Systems Applications and Products (SAP) database - this a human resource and finance application for NSWPF and is available to all NSWPF employees; 3. The PPG P drive and PPG shared email folder (SMAC box) - this is an email account established by the PPG and is used as a central point to receive emails and electronic correspondence relating to property matters. The SMAC box is managed by administration staff.
Ms Morris stated that Transfield Holdings managed property services for the NSWPF before 10 December 2006, after which United Services Group (UGL) was appointed as the property services provider until 2013. Brookfield Global Integrated Solutions (BGIS) then provided property management services from 2013 to February 2022.
Ms Morris stated that her experience has been that once a contract between the NSWPF and the service provider has concluded, the service provider provides the documents it holds to the NSWPF. Most of the information is provided in a "data dump", which is a number of excel spreadsheets containing a large amount of data.
Ms Morris set out the searches that she conducted in response to the GIPA request and she annexed copies of the documents that were found. She stated that she spent 25 hours conducting searches and that the NSWPF does not hold any documents in respect of: 1. Repaint jobs around 2008 - also, photographs, reports and email correspondence relating to the condition of the paint, specifically (whether) any lead was detected; 2. Replacement of carpets around 2008 - also, documents containing the reason for replacement; and 3. Replacement of roof gutters around 2011 - also, photographs, email correspondence and reports held for this job.
In Ex 6, Mr Gao deposed that the annexed documents were those that the respondent "is content to release" to the applicant in response to her GIPA request. He stated that: 1. The documents located in response to item (f) are reports found at pages 8, 39, 72, 111 and 171 and these resulted from Ms Morris' searches in 2022. 2. In relation to category (d), the documents located are found at pages 18, 21, 28 & 31 of the Remitted decision. 1. The final two pages of the annexure to the decision contains a spreadsheet of inspection reports and works; and 2. A spreadsheet from UGL is found at page 59 of Ex. 3, which indicates that an inspection was conducted on 12 February 2012. Annexure "A" also contains an annual property condition report comprising external and internal infrastructure, roof, guttering & downpipes.
With respect to Mr Gao, these spreadsheets are printed in a tiny font and they cannot be clearly deciphered without the aid of a magnifying glass. The Tribunal found this unhelpful to the determination of the matter;
In relation to category (c), Mr Gao stated that documents located are found at pages 4 and 5 of the Annexure to Ex. 4.
In relation to item (b), Mr Gao stated that the documents located are found at page 5 to the annexure to Ex 3, being a case logged on 7 June 2013 for the replacement of carpet. An earlier case for replacement of carpet was logged on 17 March 2006 and this is found at pages 57 and 58 of the annexure to Ex 3.
In relation to items (a) and (e) of the GIPA request, Mr Gao stated that the documents located are found as follows: (1) Pages 25 and 28 of Ex 6 include references to lead paint; (2) Page 24 is a notification of works; (3) Page 22 refers to lead based paint; (4) Page 21 refers to paint and the roof; (5) Page 16 refers to a "tradie coming out"; and (6) Pages 10 to 13 comprise correspondence about paint.
Mr Gao also stated that pages 59 and 60 of the annexure to Ex 3 indicates that UGL's services were engaged for painting and the parts of the police station that were to be repainted and Ex 4 indicates that the painting project was approved in 2011.
In his affidavit dated 30 March 2023 (Ex 5), Mr Lane deposed that on 16 March 2023, he conducted a search of the historic vault in order to locate emails between the applicant and two named NSWPF employees that contained the words "carpet", "gutter", "roof" or "paint" between 1 January 2008 and 31 December 2008 and from 1 January 2011 to 31 December 2011. He attached the documents that were located to his affidavit.

Applicant's Evidence

The applicant relied upon the following evidence: 1. Affidavit of the applicant dated 7 December 2022. There was no objection to this affidavit and the deponent was not required for cross-examination. This was admitted and marked Exhibit B. 2. Further affidavit of the applicant dated 31 March 2023. There was no objection to this affidavit and the deponent was not required for cross-examination. This was admitted and marked Exhibit C. 3. Applicant's chronology - This was marked Exhibit "D". 4. Email from the applicant's solicitors to the respondent's solicitors dated 8 February 2023 - This was admitted and marked Exhibit "E". 5. Letter from the respondent's solicitors to the applicant's solicitors dated 15 February 2023 - This was admitted and marked Exhibit "F". 6. Letter from the applicant's solicitors to the respondent's solicitors dated 16 February 2023 - This was admitted and marked Exhibit "G". 7. Letter from the respondent's solicitors to the applicant's solicitors dated 6 March 2023 - This was admitted and marked Exhibit "H".
I note that in Ex B, the applicant provided further background information to her GIPA request and she annexed 306 pages of documents that had been provided to her by the respondent.
I also note that in Ex C, the applicant deposed that on 30 March 2023, she spoke with a former colleague (name provided) who is now Sergeant at Macksville Police Station. She stated that he told her that he has occupied her old office since September 2022 and that a blood test that he underwent on 30 April 2023 indicated that his "lead levels had gone up significantly". She annexed copies of the test results marked "BD12".
The applicant asserted that the fact that the other officer's lead levels have increased indicates that there is an issue with lead paint at Macksville Police Station and she expressed her belief that officers at the Station are continually being exposed to lead paint at work. However, with respect to the applicant, I consider this evidence to have limited, if any, relevance to the issues that this Tribunal is required to determine.
I note that Ex "E" comprises an email from the applicant's solicitors to the respondent's solicitors dated 8 February 2023, which provides, relevantly: Further to our previous discussions in relation to the above matter, I hold instructions to request that your client undertake an additional search for the following: 1. Hazardous Material Inspection Reports for the years: (1) 2000; and (2) 2004; 2. NSW Police - Police Station - Annual Property Condition Report for the years (2000 to 2021); 3. Any and all documents relating to carpet replacement at Macksville Police Station - documents are defined as all reports (including but not limited to Godfrey reports), letters and emails. 4. All job request emails to/from (2 named officers) and associated correspondence, in particular in relation to: (1) Carpet; (2) Painting; and (3) Gutters; 5. Any and all information including documents (noting that documents are defined as all reports including but not limited to Godfrey reports, letters and emails) relating to the entire internal paint jobs at Macksville Police Station… The search terms "lead" and "lead paint" will be included in the parameters of the new search terms…
I note that Ex "F" comprises a letter from the respondent's solicitors to the applicant's solicitors dated 15 February 2023, which stated, relevantly: In addition, our client has significant concerns about the list you have provided which identifies 5 categories of items. In relation to category 1, as previously advised, the respondent has conducted searches for hazardous material inspection reports in relation to the Macksville Police Station from 2000 to the present. No reports for the years 2000 and 2004 were located previously. However, out of abundant caution, we will search for those two reports again. Regarding category 2, the applicant did not request access to the specified annual property condition reports of the Macksville Police Station in her application made under the … GIPA Act. Therefore, this constitutes an amendment to her access application. Pursuant to s 49(1) of the GIPA Act, an applicant's application may be amended before a decision on the access application is made. As a decision has been made in the matter, no amendment can be made to the application. Even if the applicant could amend the application due to the operation of s 65 of the ADR Act, the request for property condition reports does not amount to a reduction of the scope of the information sought, and thus would require the respondent's consent: see s 49(2) of the GIPA Act. We are instructed that while the respondent would not content to the amendment (to the extent that it is possible for the application to be amended), it agrees to search for the 2007, 2008, 2009, 2010 and 2011 annual property condition reports of the Macksville Police Station on the basis that they could be relevant to (a), (b) and (d) of the applicant's GIPA application. In relation to categories 3 to 6, these categories expand the scope of the applicant's original GIPA application, particularly as the applicant has not specified a time period in which these documents were created. Therefore, this constitutes an amendment to the access application. We are instructed that the respondent would not consent to the amendment (to the extent that it is possible for an application to be amended) in circumstances where the information sought in these categories constitutes a significant expansion to the scope of the applicant's GIPA application and reasonable searches have already been undertaken in relation to the original application. The applicant has requested that the search terms "lead" and "lead paint" are used. The respondent does not consider that "lead" is a reasonable search term. This, in part, is due to "lead" being both a noun and a verb. We also refer to the affidavit of Kristie Morris dated 24 November 2022. At [22], [25] and [28], Ms Morris deposed to conducting searches in relation to the GIPA application using the search term "paint". That term is broader than the suggested search term "lead paint". As such, any responsive result using the term "lead paint" would be contained within the results of the searches that have already been conducted. We are instructed that the respondent would require 20 working days to make a new decision and will inform the Tribunal this at the directions hearing on 17 February 2023…
I note that Ex "G" comprises a letter from the applicant's solicitors to the respondent's solicitors dated 16 February 2023, which stated, relevantly, that: 1. The applicant would be satisfied if a further search was conducted for hazardous material reports in 2000 and 2004; 2. The applicant would be satisfied if the search for the annual condition reports was conducted for the period from 2005 to 2020; 3. In relation to categories (3) and (4), the applicant's GIPA request did seek reports and emails and this was narrowed down by the addition of emails to/from the 2 named police officers; and 4. In relation to categories (5) and (6), while the applicant agreed that she did not specify a timeframe in the initial GIPA request, the jobs referred to are significant property works, which have only been conducted once in the seventeen years that she worked at Macksville Police Station.
I note that Ex "H" comprises a letter from the respondent's solicitors to the applicant's solicitors dated 6 March 2023, in which they stated, relevantly: Category 3: This category relates to carpet replacement. Insofar as this category is not intended to expand the scope of category (b) of Ms Dalzell's original request, but instead is intended to narrow the request by referring to reports, letters and emails, it is without utility. This is because these documents would be captured within the searches that have already been undertaken in relation to this category (and those proposed in relation to category 4). Category 4: … We are instructed that our client agrees to conduct the following searches of the NSW Police Force pre-emptive email vault for emails that fall within the scope of the initial GIPA request… Categories 5 and 6: These categories do not refer to a particular year. They significantly expand the cope of Ms Dalzell's access request. They are, in any event, redundant having regard to the searches already conducted relating to these categories, other than those otherwise outlined in this letter.

Respondent's Written Submissions

The respondent filed written submissions on 17 November 2022.
The respondent accepted that the GIPA Act provides the applicant with an enforceable right to access government information unless there is an overriding public interest against disclosure: s 9 of the GIPA Act. It also stated that there is an overriding public interest against disclosure if, and only if, the public interest considerations against disclosure (set out in the Table to s 14(2) of the GIPA Act) outweigh the public interest considerations in favour of disclosure (set out in s 13).
The respondent argued that the relevant public interest considerations against disclosure in this matter are found in cll 2 (d) and 2(e) to the table in s 14(2) of the GIPA Act, as follows: 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) - … (d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person, (e) endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle, …
The respondent argued that there is an overriding public interest against disclosure of certain information contained within floor plans of the Macksville Police Station and certain photographs of the interior and exterior of that station.
However, I repeat that the respondent did not read any evidence that supported its submissions regarding cll 2(d) and 2(e) and it did not rely upon those considerations in its remitted decision dated 28 March 2023.
In relation to the issue of "reasonable searches", the respondent argued that it has conducted reasonable searches and it relied upon the Ex's 3, 4 and 5.
The respondent also argued that the financial figures contained in the spreadsheet that was provided to the applicant on 23 February 2022, are outside the scope of the GIPA request.

Respondent's Supplementary Written Submissions

The respondent filed supplementary submissions on 25 November 2022, in which it referred to the Ex 3 and that the Tribunal should comfortably find that it had conducted reasonable searches in response to the GIPA request.
The respondent argued that the correct and preferable decision is to vary its decision dated 23 February 2022 by granting the applicant access to the documents that are annexed to Ex 4.

Applicant's Written Submissions

The applicant filed written submissions on 8 December 2023, in which she argued that: (1) There is no overriding public interest against disclosure of the information that has not been disclosed by the respondent; (2) Reasonable searches have not been conducted by the respondent; and (3) The information that she has sought "is relevant."
However, as the respondent did not raise any public interest considerations against disclosure in its decision dated 28 March 2023, I have not set out the applicant's submissions regarding this issue in this decision.
The applicant disputed that the respondent has not conducted reasonable searches as required by s 53 of the GIPA Act, because it has not used search terms such as "lead". The respondent also failed to engage with matters that she has highlighted throughout the GIPA process, and the IPC expressed the view that the respondent had not satisfied s 53 of the GIPA Act. She concluded, relevantly: 47. Nothing in the evidence of Ms Morris seems to suggest that any corrective action has been taken since the IPC report. Such an approach supports the submission that the respondent has done nothing further to satisfy the requirements of section 53 of the GIPA Act.

Respondent's Oral Submissions

During the hearing, Mr Gao largely relied upon the written submissions. However, he also argued that the keywords that the respondent had used were responsive to the GIPA request and that its searches were reasonable. He also asserted that the respondent used the search term 'pain" and that this "should have turned up" any information relating to paint, including lead paint.
Mr Gao also argued that while further documents may exist, that is not the test that the Tribunal must apply in deciding whether its conducted reasonable searches.

Applicant's Oral Submissions

Ms Young argued to the effect that in the decision dated 23 February 2022, the respondent effectively re-defined the categories of information sought in the GIPA request, and that it had "deleted category (e)."
Ms Young also stated that during the case conference on 19 February 2023, the parties agreed to remit the matter to the respondent "on the basis that the applicant would be allowed to redefine her request". She subsequently provided the respondent with a list of documents that she believed to exist. While some agreement was reached at Mediation in relation to "refined searches", and the respondent agreed to search for property reports, it refused to use the search terms of "lead" and "lead paint".
Ms Young stated that the respondent has unreasonably narrowed the scope of the GIPA request (by deleting category (e) and that its refusal to use the requested search terms is unreasonable because the existence of lead at Macksville Police Station was the basis for the GIPA request.
Accordingly, Ms Young argued that the Tribunal should remit the matter to the respondent for reconsideration under s 63(3)(d) of the ADR Act.
However, as was the case on the previous hearing date, the Tribunal observed that if the matter was remitted under s 63(3)(d) of the ADR Act, it could not be brought back before the Tribunal in the event that there was no resolution of the dispute.

Respondent's Oral Submissions in Reply

In relation to the applicant's argument regarding category (e) of the GIPA request, Mr Gao argued that a search using the term "paint" will "turn up anything to do with paint".
The Tribunal asked Mr Gao where the evidence in support of that submission is located? He replied to the effect that there is no specific evidence on this matter, but that his submission is based on "a question of logic."
Mr Gao also referred the Tribunal to the decision of the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153, in which the Tribunal set out the legal principles that apply in determining whether an agency holds information. In that matter, the appellant expressed his belief that certain documents should exist.
I note that in Klaric, the Appeal Panel stated, relevantly: Mr Klaric's submissions 37. As outlined above, on appeal, Mr Klaric reiterated the basis for his belief that certain information should exist. He criticised the Tribunal's acceptance that "certain documents don't exist." Consideration 38. Contrary to Mr Klaric's understanding, the Tribunal did not find that "certain documents don't exist". Rather, the Tribunal accepted that Mr Klaric's assertions establish the possibility that information of the kind sought does exist. But the Tribunal was satisfied, on the basis of all the evidence including that of Mr Smith, that the decision that the respondent does not hold information was justified. In coming to that conclusion, it took into account that the searches undertaken on behalf of the respondent were reasonable. Mr Klaric has not identified any question of law or other error in relation to the Tribunal's finding. This ground of appeal is dismissed.
Mr Gao argued that the applicant's mere belief that further documents exist, which is evidenced by the list of documents that her solicitors provided on 8 February 2023, is not a sufficient basis for the Tribunal to find that the respondent's searches were not reasonable.

Legal principles

The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".
On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

The GIPA Act

In respect of access applications, s 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
I am satisfied that the Remitted Decision dated 28 March 2023 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.
In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.
Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".
Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.
In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13.
Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) 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. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).
Section 14(2) of the GIPA Act provides: 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.
In this matter, the respondent relies upon cll 2(d) and 2(e) of the table to s 14(2) as public interest considerations against disclosure. These provide: 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) - … (d) endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person, (e) endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle,
The respondent relies upon these clauses as a basis for redacting information contained in floorplans and photographs (internal and external) of the Macksville Police Station.
Section 53 of the GIPA Act provides: Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Section 61 of the GIPA Act provides: Notice of decision to refuse to provide access Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following - (a) the agency's reasons for its decision, (b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based, (c) the general nature and the format of the records held by the agency that contain the information concerned.
Section 73 of the GIPA Act provides that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world".
Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

The scope of the GIPA request

There is a dispute regarding the scope of the GIPA request.
Based on the evidence before me, I am not satisfied that the respondent redefined the terms of the GIPA request and effectively deleted item (e) in its decision dated 23 February 2022.
While I consider that the respondent's reasons on page 2 of that decision are clumsily worded, I am satisfied that items (a) and (e) of the GIPA request effectively overlap and that respondent's wording reflects the information sought in categories (a) and (e) of the GIPA request.
It appears that the "dispute" regarding the scope of the GIPA request relates to the following matters.
Firstly, whether the applicant's request for "Any and all documents relating to the 2008 carpet replacement", which her solicitors made on 8 February 2023, represents an expansion of the GIPA request?
If 'yes", I note that s 49(2) of the GIPA Act provides that the respondent's decision is not a reviewable decision.
While item (b) of the GIPA request sought "job request and job completed information for the carpets being replaced… in or around 2008 and any information/reports as to why the carpet was replaced at that time", it did not seek any "letters and emails".
For this reason, I am satisfied that the request made by the applicant's solicitors on 8 February 2023 is a request to expand item (b) of the GIPA request. It follows that the respondent's decision not to consent to the expansion is not a reviewable decision.
I note that my decision on this issue does not preclude the applicant from making a fresh GIPA request should she wish to do so.
Secondly, whether the applicant's request for" all job request emails to/from … (two named police officers) and associated correspondent in relation to carpet, painting and gutters", found in category 3 of the applicant's solicitors' request dated 8 February 2023, represents an expansion of the GIPA request?
If 'yes', I note that the respondent's decision is not a reviewable decision: s 49(2) of the GIPA Act..
In their letter to the respondent's solicitors dated 16 February 2023, the applicant's solicitors asserted that this formed part of the GIPA request. However, the GIPA request did not request emails etc. to/from the two named police officers.
The respondent did not consent to this request on the basis that it represented an expansion of item (d) of the GIPA request. However, it agreed to search for emails that fall within the scope of the initial GIPA request during the periods of 1 January 2008 to 31 December 2008 and from 1 January 2011 to 31 December 2011.
Based on the evidence before me, I am satisfied that this particular request sought to expand item (d) of the GIPA request. It follows that the respondent's decision not to consent to the expansion is not a reviewable decision: s 49(2).
Again, my decision on this issue does not preclude the applicant from making a fresh GIPA request should she wish to do so.
Thirdly, whether the following requests that the applicant's solicitors made on 8 February 2023 represent a request to expand the scope of the GIPA request: 5. Any and all documents relating to the roof and gutter replacement of the Macksville Police Station (reports, letters and emails). 6. Any and all information (including documents) relating to the entire internal paint jobs at Macksville Police Station.
Based on the available evidence, I am satisfied that these requests represent a request to expand categories (d) and (e) of the GIPA request. It follows that the respondent's decisions not to consent to the expansion of those items are not reviewable decisions: s 49(2).
Again, my decision on this issue does not preclude the applicant from making a fresh GIPA request should she wish to do so.
Fourthly, whether the applicant's request for the respondent to conduct further searches using the specific search terms "lead" and "lead paint" represents an expansion of the GIPA request?
Based upon a fair reading of the GIPA request and the available evidence, I am satisfied that the GIPA request sought information regarding the existence of lead in the paintwork at Macksville Police Station. On that basis, I am not satisfied that her request for the respondent to conduct additional searches represents a request to expand the GIPA request.

Did the Respondent conduct reasonable searches?

In its submissions, the respondent argued that its searches were reasonable because it searched using the term "paint" and that information regarding "lead paint" would have been captured by using that more-general search term.
However, it appears that the basis for the respondent's refusal to use the specific search terms requested by the applicant is that "lead" is t is both a noun and a verb and such a search would likely produce a high number of "hits"
The respondent bears the onus of proving that its decision is justified and in relation to this issue, the respondent has not filed any evidence that provides a sound basis for accepting its decision.
While the respondent sought to rely upon the decision in Klaric, I consider the that the facts in this matter differ significantly to those that were considered by the Appeal Panel. In this matter, the applicant provided evidence based upon her experience as a serving police officer and that evidence supports the argument that further documents that fall within the scope of the GIPA request should be held by the respondent.
For these reasons, I am not satisfied that the respondent has discharged its onus of proving that it conducted reasonable searches as required by s 53 of the GIPA Act.

Balancing the public interest

As I have found that the respondent's decision dated 28 March 2023 does not raise any public interest considerations against disclosure, I do not that it is necessary to make any specific findings.

Conclusion

For the reasons set out above, I consider that the correct and preferable decision is to remit the matter to the respondent pursuant to s 65(1) of the ADR Act and to order the respondent to further searches using the search terms "lead" and "lead paint" with respect to the following matters: 1. Items (a) to (f) (inclusive) of the GIPA request; and 2. Categories (4) and (5) of the applicant's solicitors' email to the respondent's solicitors dated 8 February 2023.
I also order that: 1. The matter is to be listed for directions before me on a date to be fixed by the Registry and that this should proceed by way of AVL; and 2. I grant liberty to the parties to approach the Registry in the meantime in the event that there is a resolution of the dispute.

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: 26 April 2023

Government Information (Public Information) Act 2009(NSW)

At a glance

Court

Decision date

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Judgment (29 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (7)