Denyer v Commissioner of Police, NSW Police Force

Jurisdiction

1. There is no dispute that the application for administrative review has been lodged within time, nor is there any dispute that the Tribunal has jurisdiction to review the matter. The decision under review is a reviewable decision in accordance with s 80 of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act.

The Legislative Provisions

1. The objects of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraphs 5 -10 the following outline of the provisions is provided: 5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
3. There were three public interest considerations against disclosure in the GIPA Act which the respondent relied upon in withholding information from the applicant. The major consideration relates to Point 1 of the application concerning audits of accesses to records of the applicant. These considerations were clauses 1 (f) and (h) and Cl 2 (b) from the Table to s 14 as set out below. The lesser concerns relate to the personal information of others in the various COPS records released to the applicant. (Cl 3 (a) )
4. These matters concern the circumstances whereby public interest considerations against disclosure of government information may be applied so as to override the general public interest in favour of disclosure. These provisions in the Table to s 14 of the GIPA Act, and the relevant matters relied upon at the commencement of the proceedings were: 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): … (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, … 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, …
5. I have determined to deal with a consideration of some of these issues by way of confidential reasons in accordance with s 107 of the GIPA Act. Section 107 (1) provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
6. There was no confidential hearing during the proceedings, but a confidential bundle was filed and I have considered this material confidentially in preparing these reasons. That material consists of the un-redacted (complete) suite of documents / information (that was provided to the applicant in a redacted form concerning Points 2-6).

The hearing

1. The matter was heard on 1 May 2018. Whilst witness statements were tendered and matters asserted by the applicant's legal representative concerning his client's views, no person gave evidence at the hearing, and no party sought to call a witness. This observation is made to illustrate that the parties did not desire to test any of the evidence at hearing even if they submitted that the Tribunal should attribute weight to the evidence positively or negatively consistent only with their submissions.
2. The hearing as a result took the form of an inquiry into the material and the legal points raised by the parties. I propose initially to deal with the personal information issues raised by the applicant in confidential reasons consistent with [15] and [16] above.
3. NOT FOR PUBLICATION
4. NOT FOR PUBLICATION
5. NOT FOR PUBLICATION
6. NOT FOR PUBLICATION
7. NOT FOR PUBLICATION
8. NOT FOR PUBLICATION
9. NOT FOR PUBLICATION
10. NOT FOR PUBLICATION
11. NOT FOR PUBLICATION
12. NOT FOR PUBLICATION
13. NOT FOR PUBLICATION
14. NOT FOR PUBLICATION
15. The information on page 22 (the Police Notebook details) is not in my view personal information for which cl 3 (a) of the Table to s14 can be relied on, much less, given any weight against disclosure. I reject that ground. I attribute little weight to those considerations and find that the information should be released.
16. I therefore find that the information referred to above at paragraphs [22]-[31] inclusive should be released to the applicant.
17. As noted above no witness gave evidence at the hearing. The applicant did not file any written material other than tendering two documents to, in part, rebut submissions of the respondent at hearing. Those documents were copies of correspondence between the applicant's lawyers and NSW Police and marked as Exhibits 'A-2' and 'A-3'.
18. The respondent relied on written submissions filed March 2018, the tender bundle comprising s 58 documents under the Administrative Decisions Review Act 1997, and a signed statement of Chief Inspector M McCarthy dated 12 March 2018 (Exhibit 'R-2').
19. The applicant's opening submissions set the context of the application which is relevant under s55 of the GIPA Act concerning the consideration of personal factors of the applicant.
20. The applicant is a civilian who worked for NSW Police at Bankstown during 2016 and 2017. The applicant at the time of the hearing was no longer employed by NSW Police.
21. Further submissions at hearing concerned whether information was created on the COPS system responsive to an information request concerning the applicant. The context was that during the period of his employment the applicant had received notice of a current criminal investigation.
22. The specific notice came by way of a written request of 3 March 2017 from a police officer, Inspector Firth, inviting the applicant to attend and take part in an interview concerning an allegation of security activities being advertised in the absence of a master security licence - contrary to provisions of the Security Industry Act (1997). (Contained within 'A-3').
23. The applicant's position was that based on this 3 March 2017 written request, a COPS entry or update would have been brought into existence. However the respondent continued to assert that no COPS entries existed in respect of the applicant in the period January 2017 - September 2017. (As set out in 'A-2').
24. Reference was made to Clause 10 of Schedule 4 of the GIPA Act. The provision provides: 10 Meaning of "record" (1) In this Act: record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record.
25. It was submitted that the type of information that the applicant still pressed constituted records of the respondent organisation, even if the audit reports had not been generated by being 'run' or tabulated in document form.
26. The applicant's representative submitted that he was surprised by the absence of any COPS Event to complement the March 2017 security investigation. This was seen as a matter of concern having regard to what the applicant submitted as the voluntary disclosure by Police of an Investigation by Inspector Firth.
27. The applicant submitted that the failure to create a record was contrary to good practice and the public interest. By not creating a record other police could not access or appropriately ascertain that an investigation on the allegation was underway. The applicant submitted that because of the absence of records there is no way to know in any greater detail the real situation.
28. The applicant also submitted that the absence of the information (which should exist) is a public interest consideration in favour of giving access to the existing information (audit reports) etc.
29. The respondent referred in written submissions to the grounds for withholding information concerning audit reports. In respect of the Clause 1 (f) (Prejudice the effective exercise of the agency's functions) ground the respondent relied on evidence from the contents of Chief Inspector McCarthy's statement. The existence of the COPS database is a significant resource for operational police in performing law enforcement and public safety duties.
30. In addition reference was made to the case of Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett). Barrett concerned access to audit material from Police and looked at the terms of this type of request and the impact that it could have on both the organisation and particular investigations specifically. At paragraphs [49] - [56] the Appeal Panel observed: 49. 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. 50. 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).) 51. 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)). 52. 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. 53. 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. 54. 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. 55. 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. 56. 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.
31. It was submitted from the evidence in Chief Inspector McCarthy's statement, and applying Barrett (above) that an applicant sighting an audit report could discern whether particular conduct had come to police attention. This information could be used to ascertain whether a particular matter was (or was not) under investigation by police.
32. Matters relating to the identities of informers, targeting of police officers, and law enforcement methodologies could all be revealed and as a result compromised by release of such information under the GIPA Act.
33. In addition the respondent submitted that there were ample alternative avenues available for the applicant to pursue issues arising out of concerns of improper police conduct or similar allegations. The police complaints system under Part 8A of the Police Act 1990 provided the applicant with a vehicle for pursuing issues about inappropriate access of data in the police system (in this instance data concerning the applicant), and the subsequent investigation would entail appropriate analysis and responses to such a complaint.
34. In summary the respondent's position was that disclosure of any audit reports would alert persons to the fact that they either were or were not the subject of investigation by NSW Police. Such disclosures would compromise the integrity of police action and would prejudice the enforcement of the law.
35. Submissions were also made in respect of the findings that the information was not held. (s- 58 (1) (b) ) 58 How applications are decided (1) An agency decides an access application for government information by: (a) … , or (b) deciding that the information is not held by the agency, or
36. Many of those submissions fall away as matters resolved in the two months between the submissions and hearing. However some matters, including the applicant's Point 7, remain to some extent. The respondent produced a 'report' at Tab 5 of the tender bundle which deals with searches conducted by NSW Police concerning the information in Point 7. (Specifically information in the period 1 January 2017- 31 August 2017 concerning any disciplinary action by Police as employer against the applicant as employee).
37. Tab 5 provides a report by Professional Standards Command NSW Police Force which outlines that after conducting searches and enquiries with the Administrative Officer, Conduct Unit, Professional Standards Command: No records were able to be supplied as no disciplinary investigation was conducted by their unit for Adam Denyer in regard to ACD Marine and Intelligence Services.
38. The respondent submitted that in respect of Point 7 on this basis they had satisfied the various criteria as set out in earlier cases by the Tribunal. In the case of Mino v Legal Aid NSW [2015] NSWCATAD 245 the Tribunal set out a two stage test for determining whether an agency had conducted adequate searches to determine that the information was not held.
39. At paragraphs [23] - [24] the Tribunal observed: 23. The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7, (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. 24. The decision in Shepherd has been followed in a number of decisions of this Tribunal in matters under the now repealed Freedom of Information Act 1989 ("the FOI Act") and under the GIPA Act. See, for example, Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5, which reviews a number of the authorities on the point and the discussion in BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156.
40. The respondent submitted that the Professional Standards Command report adequately satisfies the relevant considerations to determine the adequacy of the search and as a result the respondent had discharged their onus on this matter.

Consideration

1. There are three main issues to be adjudicated in these proceedings. They concern: 1. whether the remaining withheld information in the respondent's operational databases and records should be released concerning Point 2 and Point 3; 2. whether police have undertaken adequate searches for the information in Point 7; and 3. whether an audit report of concerning accesses related to information about the applicant should be undertaken and released under the GIPA Act.
2. In respect of Points 2 and 3 I have already addressed most of the personal information grounds in the confidential paragraphs. My findings on this point are set out in the orders and at paragraph [32] of these reasons.
3. In respect of Point 7 (the remaining 'information not held' ground), I have had particular regard to the parties' oral submissions at hearing. I place particular weight on the evidence of the respondent at Tab 5 of the tender bundle (Exhibit 'R-1') as set out at [52] and [53] above.
4. I also note the applicant's oral submissions about the import and consequences of an apparent conclusion that can be drawn when records are not created by an agency tasked with keeping the community safe and investigating criminal matters. I have had regard to those matters.
5. However I note some of the evidence that the applicant relied on to assert the existence of such material. Exhibits 'A-2' and 'A-3' were tendered during the hearing.
6. Consistent with the provisions of s 38 of the Civil and Administrative Tribunal Act 2013 I asked a number of questions of Mr Porter, solicitor for the applicant as to what (if anything) those Exhibits established. It was submitted that these matters established that the applicant was under investigation and as he was an employee there would have been internal disciplinary information compiled and stored in accordance with record creation and record keeping practices.
7. However upon close examination of the documents I suggested that they did not establish that the applicant (himself or in any capacity) was under any investigation, merely that he was 'invited to take part in an interview regarding a criminal investigation…'.
8. Based on the evidence considered at hearing and filed in the proceedings, I find that the respondent has discharged their onus in respect of the reasonable searches ground concerning Point 7.
9. In respect of Point 1 (the audit information), I note the matters set out at paragraphs [39] - [50] above.
10. I note that the applicant did not put on any evidence about these matters other than evidence ('A-2' and 'A-3') which was submitted should establish that his records were accessed. However I note that Point 4 (which was broadly conceded by the applicant), established that such entries / records in the police operational holdings did not exist at the time of the decision.
11. Whilst the applicant believes that the attachment to 'A-3' infers that a separate COPS record should or must exist, the evidence indicates that no such record exists. Whether such a record or records should have been created (or not) is not a matter for these proceedings. These proceedings are about a decision of the respondent, not any conduct of the respondent (unrelated to the decision).
12. At the very least this establishes that the kind or amount of information which would be potentially open to any audit is less than the applicant contemplated at the time of his initial application. That is because the evidence clearly establishes that there are fewer primary records capable of being accessed and subsequently audited than the applicant might believe.
13. Why records may not have been created is not a matter that these proceedings can or should inquire into. This is especially so when no party has sought to call any witness to give evidence in the proceedings.
14. Whether such (remaining) audit records exist is a matter of some contention between the parties. The applicant submitted that the definition of record in the GIPA Act extended to the actual instances where the information has been accessed even if no formal record was produced by running an audit.
15. However there was minimal evidence on this point other than paragraphs [36] - [49] of Chief Inspector McCarthy's statement. Notwithstanding the lack of detail about the technical parameters of the COPS system, it is well established on the public record that significant aspects of the system create an audit trail when information is searched, accessed, viewed, and modified / entered. The applicant made detailed submissions at hearing on this point.
16. During the hearing as part of the analysis of the arguments references were made to NSW Ombudsman investigations in the 1990's on improper access to and use of confidential information in the newly established COPS system. Reference was also made to various reports to Parliament placing this information in the public realm. Those matters concern two reports: Improper Access to and use of Confidential Information by Police (NSW Ombudsman, 1994) and, Confidential Information and Police (NSW Ombudsman, 1995). Those reports were not before the Tribunal but it was agreed that they set out the types of audit trails available in the COPS system as referred to generally in Chief Inspector McCarthy's evidence.
17. Whilst the Tribunal did not have access to specific evidence on what types of actions created an audit trail (for both officer accesses and reverse audits), I note [37] of Chief Inspector McCarthy's statement refers to 'all accesses to COPS made by a particular officer' when referring to officer audits or 'non reverse' audits.
18. In my view such information lying dormant in the COPS system concerning auditable information would, for the purposes of cl 10 of Sch 4 constitute a record capable of being produced as information under the GIPA Act. I therefore find that the information (concerning accesses of the COPS system) is capable of being produced under the GIPA Act.
19. However the issue is whether the respondent has grounds for withholding the information based on the decision under review.
20. In my view, the principles in Barrett carry significant weight to the Clause 1 (f), 1 (h) and 2 (b) grounds. The fact that the information could reasonably be expected to have the stated effect is clear from the unchallenged evidence of Chief Inspector McCarthy.
21. Whilst the applicant might have suspicions that he was subject to unauthorised scrutiny and was also subject to 'information grazing' or unauthorised searches by colleagues with access to the system, that does not mean that this occurred. The applicant would need to provide evidence sufficient to establish that the significant weight which I give to the cl 1 (f), (h) and 2 (b) grounds should diminish.
22. In making this observation I note that the grounds relied on by the respondent on this point are not conclusive grounds, merely ones whereby it is submitted that the public interest considerations against disclosure are sufficient to override the general public interest consideration in favour of disclosure.
23. In any event as set out in some detail above, it would be open to the applicant to deal with any concerns by way of a complaint under Part 8A of the Police Act 1990. Whilst the GIPA Act is a tool or mechanism for accessing government information, in instances where the access is unconditional, and information is ultimately withheld, alternate redress is in this instance available, as was submitted by the respondent. Other that a consideration under s-55, this submission is of limited relevance to deciding the issue under the GIPA Act.
24. An inquiry of a more appropriate nature with public interest protections (confidentiality provisions in police misconduct investigations), exists to provide a balance to a complainant's right to know of any inappropriate conduct directed against them, whilst balancing the integrity of a criminal investigation of any subject officers.
25. In my view for these reasons and the reasons relied upon by the respondent, the use of the GIPA Act to audit potential police misconduct is somewhat misdirected especially having regard to the strong grounds applied by the respondent for withholding the information under the GIPA Act.
26. For all of the reasons referred to above I find that the public interest considerations against disclosure of any audit information (Point 1) on balance outweigh the general public interest in favour of disclosure and I so find.

Conclusion

1. I therefore make the following orders: 1. The decision of the respondent is set aside in respect of Points 2 and 3 as referred to on pages 2 and 3 of the decision. 2. In substitution of that decision the respondent is to release the information as particularised at paragraphs 22- 31 (inclusive) of the Confidential Reasons for Decision. 3. In addition to Order 2 the remainder of the information for which the decision relied on Sch 1 Clause 7 (c ) is released to the applicant. 4. The remainder of the decision is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2018