Dezfouli v Commissioner of Police, NSW Police Force

Dezfouli v Commissioner of Police, NSW Police Force - [2024] NSWCATAD 15 - NSWCATAD 2023 case summary — Zoe

[6]

Preliminary issues

By letter received by the Registry on 24 October 2023, and copied to the Crown Solicitor, the applicant provided a list of 6 'witnesses' he sought to call to give evidence at the hearing. One of those witnesses was Mr Steptoe who was relied upon as a witness by the agency and was present at the hearing. The other witnesses identified on the list were the former and current Chief Executive Officers of Justice Health, a doctor somehow attached to the Dee Why Unit of the Forensic Hospital, two Nursing Unit Managers of that Unit who are identified by their first name only, and 2 persons who are identified as "the Police Officer from Counter Terrorism Intelligence Unit who called Justice Health on 18/02/2022 and his supervisor on 18/02/2022". This letter was not in the form of an application for Summons and consequently had not been dealt with prior to the hearing.
At the start of the hearing the applicant expressed concern that other than Mr Steptoe these 'witnesses' were not in attendance at the hearing. He sought an adjournment of the hearing and some form of compulsory direction from the Tribunal that would require the attendance of these witnesses on the next occasion. That application was opposed by the agency. After hearing from both parties, I refused that request.
The issue before the Tribunal for review is whether the delegate's decision to refuse to deal with the applicant's access request is the correct and preferable decision. The review is therefore of relatively narrow scope. The agency has offered as a witness a senior officer of its Infolink Command which was functionally responsible for that decision. Medical and nursing staff at the Forensic Hospital had no role in formulating the reviewable decision. They are not even staff or former staff of the agency. The two unidentified Police Officers on the list may work (or have worked) for the agency, but there is no evidence that they played any role in formulating the reviewable decision. A witness should only be compelled to be available to give evidence if they are apparently able to give evidence that is relevant to the issues for determination. Other than Mr Steptoe, I was not satisfied that this was the case.

[7]

Material Facts

The applicant is a person detained in a secure mental health facility known as the Forensic Hospital in accordance with the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
The respondent is a "public office" as that term is defined in Schedule 4, clause 3(1) of the GIPA Act and an "agency" to which the GIPA Act applies by operation of s 4(1) of that Act.
By an access application received by the agency on 28 April 2023 (the application is dated 28 March 2023) the applicant sought access to information he believed was held by the agency which was described as follows: A copy of my entire event reports, a copy of all my reports and documents with the fixated persons unit and a copy of the entire documents with the counter terrorism unit of the NSW Police Force.
By letter dated 3 May 2023, the delegate of the agency notified the applicant that his application and application fee had been received and that the application had been deemed a valid access request. The letter also advised that "the initial due date of your application" was 26 May 2023, being the date of expiry of the required period within which the access request had to be determined: s 57(1) of the GIPA Act.
The letter then goes on to make a "scope refinement request" of the applicant which is set out as follows: I am requesting that your application be refined in accordance with section 60(4) of the GIPA Act. Please note the decision period time is now suspended until this agency receives a response to this request. Upon receipt of a response, you will be advised of the new access application due date … In its current form, the nature of your request my be considered too broad since it could potentially capture a very large amount of information and result in an unreasonable and substantial diversion of resources to complete your request. Preliminary searches have identified over 30 events on your COPS profile as well as 2 charges. The first part of your application alone is already likely an unreasonable and substantial diversion of resources due to the volume of events on your COPS profile. I note that your request is also asking NSWPF to search for and review all reports and documents about you held by the fixated persons unit and the counter terrorism unit. To respond to your request, I would need to conduct a search on the COPS database and with separate commands. I note that you have not identified any events or incidents relating to your interactions with the fixated persons unit or the counter terrorism unit to assist my office to identify what records could be held about you. Without specific information, searches could take a large amount of time to locate and cross check all records about you from the two NSWPF units. Following searches and identification of records, all documents would need to be manually reviewed and necessary redactions made. A notice of decision regarding the information would then need to be formatted. I request that in the first instance you narrow the scope of your request to information about specific incidents/events. To identify a specific event, please provide any of the following:

Event reference number;
Dates, times and locations of events;
Names of persons involved including their date of birth;
Brief summary of the incident. If you require an understanding of your criminal history, then you could request your criminal history report. You could narrow the scope of your request by asking for records over a particular time period relating to specific incident types. For example, you could request all police reports where you (sic) listed as a victim of assault between 1 January 2019 and 31 December 2022. If the application is not refined then consideration will be given to refusing to deal with the application under section 60(1)(a) of the GIPA Act. I note that the decision period will only be restarted after we have agreed on a narrowed scope. If you require assistance in narrowing the scope of your request, please contact …

By letter dated 9 May 2023 the applied replied to the agency's letter of 3 May 2023 and advised: … I don't wish to refine the scope of my GIPA application and I am unable to provide you with the dates, times, locations and the names and the date of births of people involved.
By a notice of decision dated 30 May 2023 the delegate notified the applicant that the agency had decided, in accordance with s 60(1)(a) of the GIPA Act, to refuse to deal with the application because to do so would require an unreasonable and substantial diversion of the agency's resources. In section 3 of the notice of decision the delegate sets out their reasons for decision as follows: … [ss 60(1)(a) and 60(3A) of the GIPA Act are outlined] I have considered the above factors. As advised in my letter dated 3 May 2023, your original request is too broad as it was capturing a very large amount of information and requiring NSWPF to utilize a large number of resources to search, retrieve, review and process the information. With regards to item 1 of your request, searches have identified 33 events in your COPS profile. Each report has on average 5 pages per report. This means that there are at least 165 pages involved in the first part of your request requesting copies of "entire event reports". It takes on average 5 minutes to review, consider the application of section 14 table of the GIPA Act on the information, redact and check every page. Therefore, the first part of your request alone equates to at least 825 minutes or about 13 hours. With regards to items 2 and 3 of your request, a sample of the records held by the Security Investigation Unit (formerly the Fixated Persons Investigation Unit), which falls under the Counter Terrorism & Special Tactics Command, has identified 15 folders which has about 98 records in total with varying number of pages. The unit has advised that it would take then hours to collate the records. These records would then need to be returned to my office for review to determine whether information needs to be withheld in accordance with the GIPA Act. I note that you are requesting "a copy of the entire documents with the counter terrorism unit of the NSW Police Force", which means you are also requesting for all other units (more than 15 units) that sit under the Counter Terrorism & Special Tactics Command to conduct searches to determined whether records exist about you. My letter explained that such searches would take a large amount of time to locate documents and crosscheck all records about you. The sample search from the Security Investigation Unit demonstrates this. I provided you with an opportunity to narrow the scope of your request pursuant to section 60(4) of the GIPA Act and to provide detailed information to identify specific events of incidents so that targeted searches could be conducted. I also provided you with examples of how you could narrow the scope. However, you responded to my letter on 9 May 2023 stating, [as set out above]. Please note that the second and third part of your request is asking NSWPF to search for information that is unlikely to be disclosed as they affect law enforcement and public safety. This is because there is a conclusive presumption of overriding public interest against disclosure under Schedule 1 Clause 7(b) for documents created by the Counter Terrorism and Special Tactics Command of the NSWPF. NSWPF receives about 9000 GIPA access applications each year per year, that are processed by on average 14 review officers, including myself. Each review officer needs to complete at least 12 applications each week. This means each officer has, on average, about 3 hours to deal with each access application. The unit has so car spent around 1.5 hours working on your application by considering the scope of your request, searching, reviewing documents in your COPS profile, considering the GIPA Act in response to components of your request, and discussing your application with the Security Investigation Unit. In light of the above, if the agency's resources were used to deal with your access application, it would divert time and personnel away from other applications, which would mean that a number of matters would not be completed in accordance with the GIPA Act timeframes. Your request would also divert time and personnel from each unit under the Counter Terrorism and Special Tactics Command from carrying out their policing functions in order to search for documents to respond to this request. In accordance with section 60(3A) of the GIPA Act, I have taken into account the general interest in favour of the disclosure of government information. I have also taken into account the demonstrable importance of the information to you. However, your application does not specify any personal factors pursuant to s 55 of the GIPA Act for consideration and does not detail how this information would enable you to exercise any legal rights. I also note that you are requesting information that affects law enforcement and public safety and that there is a conclusive presumption against disclosure of some of the information you are requesting. Therefore, I cannot find any public interest that would support this agency continuing to deal with your application.

[8]

Jurisdiction

Section 100 of the GIPA Act provides that a person who is aggrieved by a decision that is a reviewable decision under the GIPA Act may apply to the Tribunal for an administrative review of that decision under s 55 of the ADR Act. Section 80 of the GIPA Act sets out what decisions are reviewable decisions for the purposes of that Act. They include a decision to refuse to deal with an access application: 80(b).
Section 101 of the GIPA Act provides, relevantly, that an application for administrative review of a decision specified in s 100 of that Act must be made within 40 working days after notice of the decision to which the review relates is given to the applicant. There is no issue that this application has been made within this limitation period.
The Tribunal's role in the conduct of an administrative review is prescribed in s 63 of the ADR Act: 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 that the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) the 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.

[9]

Applicable law

The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in section 3 which states, relevantly: (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: … (b) by 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.
This object is amplified with a statutory command, contained in section 3(2), which provides: (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 possible cost, access to government information
The object of the GIPA Act is operationalized by various 'machinery' provisions of that Act.
Part 2 of the GIPA Act contains general principles relating to open government information.
Division 1 of that Part concerns ways of accessing government information. This includes, in s 5, a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. It also confers, in s 9(1), a legally enforceable right on a person who makes an access application 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.
Division 2 of Part 2 of the GIPA Act concerns public interest considerations related to access to government information. This includes, in s 12(1), a prescription that there is a general public interest in favour of the disclosure of government information.
Section 13 contains a "public interest test" which is to be applied in determining whether access is to be provided to government information. It provides that there is an 'overriding public interest against disclosure of government information 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.
The public interest considerations against disclosure of government information are found in s 14 of the Act. Pursuant to s 14(1) it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information contained in Schedule 1 of the Act. For present purposes, it is only necessary to note that this includes in clause 7 of Schedule 1 documents affecting law enforcement and public safety, including a document created by the Counter Terrorism and Special Tactics Command. The only other public interest considerations against disclosure are set out in the Table to s 14. This table sets out various public interest considerations against disclosure under 7 categories.
Part 4 of the GIPA Act deals with access applications. Division 3 in that Part prescribes the process for dealing with access applications. For present purposes it is sufficient to note s 54 which requires an agency to take such steps (if any) as are reasonably practicable in specified circumstances to consult with a person before providing access to information relating to that person, and s 54A which provides that the agency may consult with another agency in response to an access application, including to determine whether there is an overriding public interest against disclosure of the information. Section 55 also requires the agency to take into consideration personal factors of the application as set out in that section.
Division 4 of Part 4 sets out the process for deciding access applications. This includes, relevantly, how access applications are decided. Section 57 prescribes the required period for deciding an application. It provides, relevantly: 57. Required period for deciding application (1) An agency must decide an access application and give the applicant notice of the agency's decision within 20 working days (the "decision period) after the agency receives the application. (2) The decision period can be extended by up to 10 working days for either or both of the following reasons (with a maximum extension under this subsection of 15 working days for any particular access application): (a) consultation with another person is required under a provision of this Act, (b) records are required to be retrieved from a records archive. [Note: The decision period can only be extended to allow for mandatory consultation, not just consultation that the agency chooses to do]. … (4) The decision period can also be extended (and further extended) by agreement with the applicant. [Note: A decision by an agency to refuse to agree to extending the decision period is not a reviewable decision] … (6) An access application is considered to have been decided "within time" if the agency decides the application and gives the applicant notice of the agency's decision within the decision period. The decision period is also referred to in other provisions of this Act as the period within which an application is required to be decided.
Section 58 prescribes how applications are to be decided. It provides, relevantly: 58. How access applications are decided (1) An agency decides an access application for government information by: … (e) deciding to refuse to deal with the application (see s 60), or … …
Section 60 sets out the reasons an agency may refuse to deal with an access application. It provides, relevantly: 60. Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, … (2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided. … (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations: (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under s 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh: (a) the general public interest in favour of disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information: (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. …
Division 5 of Part 4 deals with processing charges and advance deposits in relation to access applications. In this respect ss 64, 68, 69 and 70 provide, relevantly: 64 Processing charge for dealing with access application (1) An agency may impose a charge (a "processing charge") for dealing with an access application at a rate of $30.00 per hour for each hour of processing time for the application. [Note: The decision to impose a processing charge is reviewable under Part 5]. (2) The "processing time" for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30.00 paid by an applicant counts as payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application. … … 68. Advance deposit for payment of processing charge (1) An agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (as an "advance deposit"). [Note: The decision to require an advance deposit is reviewable under Part 5]. (2) The period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency. (3) The notice requiring an advance deposit must: (a) include a statement of the processing charges for work already undertaken by the agency in dealing with the application, and (b) include a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application, and (c) specify a date by which the advance deposit must be paid (being a date at least 20 working days after the date the notice is given), and (d) include a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited, (4) An agency can extend the date by which an advance deposit must be paid and is to give the applicant notice of any extension (indicating the new date by which the advance deposit must be paid). 69. Maximum advance deposit (1) The maximum advance deposit that can be required is 50% of the amount that the agency estimates to be the total charge for dealing with the application … … 70. Result of failing to pay advance deposit (1) An agency may refuse to deal further with an access application if the applicant has failed to pay an advance deposit within the time required for payment …
Part 5 of the GIPA Act concerns the review of reviewable decisions under that Act. Division 4 of that Part concerns administrative review by the Tribunal. Section 105 in that Division imposes an onus on an agency to justify its decisions. It 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, ….

[11]

Agency

The agency submits that its decision to refuse to deal with the applicant's access request on the ground that it would require an unreasonable and substantial diversion of the agency's resources is the correct and preferable decision in the circumstances. That submission is referenced to Mr Steptoe's estimate of the processing time that would be involved in dealing with the application, the number of access applications and related matters the agency is required to deal with each year, the number of staff the agency has available to process such applications, and their work loads. It is also referenced to the additional care, complexity and intensity of time that is likely to be associated with dealing with the access request because it calls for documents that are likely to be related to law enforcement and public safety in relation to which there is likely to be a conclusive presumption of an overriding public interest against disclosure. The agency submits having regard to these matters that the scope of the access request is manifestly unreasonable and disproportionate to the limited time in which the statute requires the application to be determined.
With respect to s 60(3B)(b) of the GIPA Act the agency accepts that the information the applicant seeks access to is personal information, but submits that he has failed to discharge his practical onus of identifying how this information could assist him to exercise rights under any Act or law.
Additionally, or alternatively, it is submitted in reliance upon s 60(1)(b) of the GIPA Act that the correct and preferrable decision in the circumstances is to refuse to deal with that part of the application that concerns the same information sought by the access application the applicant made on 14 December 2018. In this respect it is submitted that there is no reason to believe that the agency would make a different decision in response to the present application to the decision it made in relation to the 14 December 2018 application, noting that this decision has been subject to administrative review.

[12]

Consideration

Section 60(1) confers discretion on an agency to refuse to deal with an access application on one of the grounds set out in that section ("[a]n agency may refuse"]. That discretion must be exercised, generally, by having regard to the object of the GIPA Act contained in s 3(1), the presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure contained in s 5, and the public interest in favour of the disclosure of government information prescribed by s 12 of the GIPA Act.
Additionally, and specifically, that discretion must be exercised having regard to the statutory command contained in s 3(2)(b) of the GIPA Act. The discretion is to be exercised as far as possible so as to facilitate access to government information.
Having regard to the GIPA legislative scheme as a whole, which does include exceptions and limitations on access to government information, the words as far as possible should be given a purposive rather than literal meaning. Nevertheless, on a purposive construction, in the context of the discretion conferred by s 60(1), they set a high threshold that must be surpassed before an agency may correctly exercise that discretion to refuse to deal with an application on the ground specified in s 60(1)(a): Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 (Colefax) at [21].
Before that discretion is enlivened the agency must satisfy the pre-condition contained in s 60(4) of the GIPA Act: that is, the agency must give the applicant a reasonable opportunity to amend the application.
A decision pursuant to s 60(1)(a) to refuse to deal with an access application requires an administrator to be satisfied that dealing with the application would require an unreasonable and substantial diversion of the agency's resources (emphasis added). A decision based on only one of those criteria would not be correct. That is, it is not enough for the agency to establish that the applicant's access request would involve a substantial diversion of the agency's resources, it must also establish that this substantial diversion is an unreasonable one. The words substantial and unreasonable are non-technical English words that ought to be given their ordinary meaning in this context. Oxford Languages defines 'substantial' to mean 'of considerable importance, size, or worth'. It defines 'unreasonable' to mean 'beyond the limits of acceptability or fairness'.
The agency must also be satisfied that dealing with the access request would constitute a diversion of its' resources. I have been unable to find any prior discussion of that word in this context. However, it is a non-technical English word and should be given its ordinary meaning. Oxford Dictionaries defines it to mean "the act of changing the direction that somebody/something is following, or what something is used for". It is thus also necessary for the agency to establish that an access request if both unreasonable and substantial would also result in some form of significant change in the typical deployment of agency resources.
Subsections 60(3A) and (3B) were inserted in the GIPA Act by the Government Information (Public Access) Amendment Act 2018, which commenced from 28 November 2018. They constitute a test to be applied in determining if the discretion conferred by s 60(1) ought to be exercised so as to refuse to deal with an access application. The s 60(3A) considerations must, on balance, outweigh the s 60(3B) considerations. It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency's resources: Else v Ministry for Health [2021] NSWCATAD 381 at [54].
It is to be observed that s 60(3A) specifies three considerations but does not limit the matters that may be considered. Prior to the enactment of s 60(3A) and (3B) the application of s 60(1) was guided by the decision of O'Connor DCJ in Cainfrano v Director General, Premiers Department [2006] NSWADT 137 (Cainfrano) which as a case determined under the former Freedom of Information Act 1989 (NSW). At [62] of that decision, the Tribunal identified the following non-exhaustive list of factors as relevant to determining if an access application would require an unreasonable and substantial diversion of an agency's resources: 62 As I see it, the factors that are relevant to an assessment of the kind required by this case, include: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort'… (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort… (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications, (d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost, (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application, (f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria), (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns, (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made, (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
Some of the relevant considerations recognised in Cainfrano are codified in the s 60(3A) and (3B) amendments. However, what is said about those factors in Cainfrano and the other relevant considerations recognised there must be understood as pertaining to a statutory context which is in some important respects materially different to the GIPA Act. Consideration of those factors in a GIPA Act context may lead to different conclusions than those drawn in Cainfrano. Nevertheless, the Cainfrano factors remain potentially relevant considerations in the analysis required by s 60(3A) and (3B): Colefax at [26], followed in Ruyters v Commissioner of Police [2020] NSWCATAD 223 (Ruyters) at [17].
The agency places particular reliance on the consideration set out in paragraph 62(g) in Cainfranco, that is, that access requests that involve more than 40 hours processing time are 'at the upper end of the range' and 'may properly raise concerns' at least as viewed by 'government administrators'.
I note that the '40 hour threshold' has been applied as a primary consideration in determining that an access application would constitute an unreasonable and substantial diversion of agency resources in a number of cases, including: Morgan v Department of Family & Community Services [2016] NSWCATAD 125 at [35] and Loussikian v University of Sydney [2018] NSWCATAD 140 at [52].
However, in Colefax the Tribunal cautioned against any automatic application of that threshold: 40. …Considerable caution needs to be exercised with respect to that finding. It was made in the context of the facts and evidence in that case, and should not be taken as establishing something in the nature of a 40-hour rule.
The s 60(3B)(a) consideration is a reference to the general public interest in favour of the disclosure of government information contained in s 12 of the Act. It is thus to be conceptualised in a systemic sense consistent with the object of the GIPA Act. It does not involve any assessment of the public interest in the disclosure of the particular government information that falls within the scope of the access request: Ruyters v Commissioner of Police [2020] NSWCATAD 223 at [47].
Section 60(3B)(b) is limited to considerations that concern the demonstrable importance of the information sought under the access application to the applicant including those specified in s 60(3B)(b)(i) and (ii), but is not limited to those considerations.
The words 'demonstratable' and 'importance' are non-technical English words which are defined by Oxford Languages to mean, respectively, 'clearly apparent or capable of being logically proved' and 'of considerable importance, size or worth'. These words put a practical onus on an access applicant to place or draw attention to material before the agency that demonstrates the importance to them of the information sought.
However, some caution must be exercised in the application of those meanings in this context. With respect to s 60(3B)(b)(i), on a proper construction of that clause, "personal information that relates to the applicant" is designated of demonstrable importance to the applicant.
With respect to s 60(3B)(b)(ii), attention must be drawn to the word "could" at the beginning of the phrase, which Oxford Languages defines, relevantly, to mean: 'to indicate a possibility". In turn, a 'possibility' is defined as being 'something that may happen or be the case".
An access applicant will usually be seeking access to information they do not have in order to establish its existence and contents. It would thus be a misapplication of s 60(3B)(b)(ii) in my view to require an applicant to show that information they do not yet have or know is of demonstrable importance to them in any positive or specific sense. Rather, the section requires an access applicant to establish a plausible basis upon which it may be the case that the information sought would assist them to exercise a legal right. I note that the Tribunal in Ruyters reached a similar conclusion at [54].
In Commissioner of Police (NSW) v Danis [2017] NSWCATAP 7 (Danis) an Appeal Panel of the Tribunal observed at [43]: 43. Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d))
Having regard to these matters the Tribunal's task in the conduct of this administrative review is to determine: 1. has the agency satisfied the pre-condition to the exercise of the discretion contained in s 60(4) of the GIPA Act? 2. if the answer to (a) is "yes", how should that discretion be exercised in the circumstances of this case? This requires: 1. consideration of the matters specified in s 60(3A) and any other matter that may or may not lead to the conclusion that dealing with the access application would result in an unreasonable and substantial diversion of the agency's resources, 2. consideration of the matters specified in s 60(3B) and any other matters that may reveal that the information sought is of demonstrable importance to the applicant, 3. attaching weight to each matter, being an assessment of the degree of persuasiveness of each matter in the exercise of discretion, 4. determining where the balance between the competing considerations lies.
There can be no issue that the pre-condition to the exercise of discretion contained in s 60(4) of the GIPA Act has been satisfied in this case. The agency's letter to the applicant of 3 May 2023, under the heading "[s]cope refinement request", requested him to narrow the scope of his application, advised him of the reasons why the agency considered that necessary, explained some ways in which the application could be narrowed, and offered further assistance in narrowing the scope of the application. It also warned the applicant that a failure to narrow the scope of the application may result in the agency refusing to deal with it.
I note that the agency's letter of 3 May 2023 did not invite the applicant to indicate what importance, if any, the information sought by his access application had to him. Section 60(4) did not expressly require it to do so. However, that is a matter that the agency is expressly required by s 60(3B) to consider before it determines whether to deal with an access application so it is difficult to see how the agency could satisfactorily acquit that obligation without providing the applicant with such an opportunity. In another case that might already be apparent from the access application, but that was not the case here. Nevertheless, I am satisfied that s 60(4) was complied with and that the discretion to refuse to deal with the access request under s 61(1) of the GIPA Act was enlivened.

[14]

The estimated volume of information involved in the request

I accept Mr Steptoe's evidence to the effect that Infolink's preliminary estimate is that 640 pages of information held by the agency potentially falls within the scope of the applicant's access request. I accept his evidence that it would take approximately 40 hours for an Infolink review officer to review that material. I accept his evidence that the scope of the access request would require Infolink to conduct additional searches and review of documents and that this is likely to take at least a further 15 hours to complete. I accept his evidence that there is potential for some of the information that falls within the scope of the applicant's access request to require consultation with other persons and agencies pursuant to s 54 and 54A of the GIPA Act. I accept his evidence that some of the information sought by the applicant is likely to be information in relation to which it is to be conclusively presumed that there is an overriding public interest against disclosure, or which may engage a Table to s 14 public interest consideration against disclosure, and that this would require careful and time intensive consideration. I also accept that it would take additional time to draft a Schedule of Documents and a Notice of Decision etc. In these respects, I am satisfied that Mr Steptoe's estimates are based on transparent and reasonable assumptions. I note that the applicant did not, in terms, challenge Mr Steptoe's estimates of the volume of documents potentially within the scope of is access application, or the time it may take to process his application.
Doing the best that I can on Mr Steptoe's evidence I am satisfied I should allow that it is likely that up to 700 pages of documents fall within the scope of the applicant's access request and that it is likely to take up to 70 hours to deal to finality with his access application. That would constitute a total of approximately two week's full time work (based on a 35 hour week). That is a significant utilisation of Infolink's resources.

[15]

The agency's size and resources

There is no evidence before me as to the specific size of the agency and its budget. However, on a common-sense basis, it may be taken to be a very large agency. Mr Steptoe gives evidence that Infolink is the unit of the agency that is responsible for processing access applications made under the GIPA Act and for related functions. It is constituted by 17 review officers who I take to be in full-time employment. There is otherwise in the evidence no indication as Infolink's budget and any other resources available to it.
There is no evidence before me, apart from an organisational chart, of the size of and resources available within the Counter Terrorism and Special Tactics Command.
Doing the best that I can on the evidence before me I conclude that the agency is a very large agency with substantial resources available to it for the specific purpose of dealing with access applications made under the GIPA Act. In this respect, assuming a 35 hour working week, and that each Infolink review officer works 46 weeks year specifically deployed to GIPA Act and related work (allowing for annual leave, public holidays, and other leave) the agency has at least 27,370 hours available to it.
Of course, the resource constituted by Infolink must be considered not only in the absolute sense but also relative to the work it must carry out. In this respect, Mr Steptoe's evidence is that Infolink received in excess of 9200 formal access applications under the GIPA Act in the year ending 30 June 2023 and the management of this workload requires each Infolink review officer to finalise at least 10 access applications per week. I accept that evidence. On this basis I am satisfied that Infolink has a voluminous workload and must maintain a robust workflow to discharge the agency's responsibilities under the GIPA Act and related functions.
That said, there is nothing in the evidence which indicates the range, average, or mean time that it takes to deal with each access application or whether Infolink has any backlog or unutilised capacity.
If it will take a total of 70 hours to process the applicant's access application, and Infolink's annual capacity is at least 27,370 hours, this will absorb not more than 0.25% of the agency's capacity.
On this basis I give the s 60(3A)(a) and (b) factors moderate weight.

[21]

Could assist the applicant in exercising any rights under any Act or law

The applicant did not indicate to the agency in his access application, or in any subsequent communications with the agency concerning it, that he required the information to exercise a legal right. But as set out above, nor did the agency seek to elicit any information going to this issue from the applicant prior it determining to refuse to deal with his access application.
In the context of this administrative review the applicant does assert that he requires the information to exercise a legal right. If I apprehend him correctly, he contends that it is necessary for him to place evidence before the Mental Health Review Tribunal in support of an application for an unconditional release order under s 83 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and/or the Premier and Prime Minister that would prompt the exercise of some form of executive discretion requiring his unconditional release which would enable him to repatriate to Iran. That claim is founded upon the following propositions: 1. that he was subject to surveillance by the Australian Federal Police and the Counter Terrorism Unit of NSW Police prior him committing the index offence that led to him being detained as a forensic patient, 2. that he committed his index offence with the objective of drawing the attention of various political and public figures to his treatment by those agencies, 3. that this was not brought to the attention of the Court during his trial because he 'got railroaded by his Legal Aid Lawyer, the Crown, and the Court', 4. because of the above, Australia is not a 'safe haven' for him anymore, even though he came to Australia as a refugee, 5. consequently, he renounced Australian Citizenship in August 2017 with the intention of repatriating to Iran, 6. the information sought to be obtained under his access request will persuade relevant authorities that he should be permitted to do so.
On the basis of the above I am satisfied that the applicant has identified a legal right which he is attempting to exercise (to obtain an order for unconditional release). While I have a significant doubt as to whether there is any plausible connection been the exercise of that right and the material sought to be obtained under his access application that is ultimately a matter for the Mental Health Review Tribunal to determine, not me. The applicant is held in indefinite detention in accordance with the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). That is a very serious matter. He therefore should not be inhibited from obtaining information he believes could lead to his release. I therefore give this consideration significant weight.

[22]

Where does the balance lie?

Based upon Mr Steptoe's estimates I can be satisfied that the applicant's access application would involve a substantial utilisation of the resources that are available to the agency for dealing with GIPA requests. However, subject to the s 60(1)(b) issue which is discussed further following, having regard to the general public interest in the disclosure of government information and the demonstrable importance of the information to the applicant, I am not satisfied that the degree of utilisation is sufficient to be unreasonable. Nor am I satisfied that it would constitute a diversion of the agency's resources.
GIPA access applications may vary widely in processing time. The mere fact that the processing time required to deal with one application is substantially more than that required to deal with another application, or even most other applications, is not sufficient make that application unreasonable, having regard to the policy of the GIPA Act. The GIPA Act specifies a decision period (which can be extended) but it does not set any express limit on the processing time that may required in respect of a particular application. There is no '40 hour rule', and nor should the reasonableness of the processing time required for a particular application be determined merely on the basis of its deviation from an average or mean processing time for all applications received by an agency within a given year, although that will be a relevant factor.
Having regard what is said in Danis, although the processing time likely to be required for this application is substantial, I do not think it would be fair to characterise the information likely to fall within its scope voluminous. In this respect, while 700 pages is a significant, and may be more than is typical for most applications, it is in my view far from overwhelming. The administrative efficiency of an agency in dealing with all access applications it receives is an important instrumental and systemic value, but it is not an express substantive value within the GIPA legislative scheme and is sub-ordinate to the public interest in the disclosure of government information. It is not administratively inefficient or a wasteful use of resources for an agency to deal with an access application merely because that the application is atypically larger scope than most applications. More is required to constitute unreasonableness.
Having regard to what is said in Cainfranco it may be accepted that this access application is in the form of a global request, and that the applicant has not co-operated with the agency in its attempt to confine the scope of the request to something it considered manageable. However, in the balancing exercise required by s 60(3A) and (3B) of the GIPA Act those matters are outweighed by the fact that all of the information sought by the applicant is of demonstrable importance to him.
The agency has substantial specialist resources available to it to deal with access applications. Having regard to the policy of the GIPA Act, it cannot constitute a 'diversion' of those resources for those resources to be deployed to the processing of an access application merely because the processing time required is atypical.
The agency's submissions suggest the time required to process this application will prevent it from processing other applications within the decision period. That is, it is suggested that the concentration of work required for the processing of this application will divert Infolink from its usual workflow. I accept on a theoretical basis that a 'diversion' of resources might crystalise on this basis. However, in the context of this case, this submission is essentially a bare assertion. As I have stated above, there no evidence before me of any actual Infolink backlog or stress that would establish that dealing with this application would prevent the agency from dealing with other applications in a timely way. In my view it is not enough to merely assert diversion on a theoretical basis, it must be proved in fact. An access applicant cannot lightly be deprived of their right of access to government information.
It is also suggested that the searches required by this access application would divert staff of the Counter Terrorism and Special Tactics Command from their law enforcement and public safety functions. That submission obviously requires careful consideration, having regard to the important functions of that Command. However, upon consideration, it must be accepted that this Command, like any other entity of government, must comply with the obligations imposed by the GIPA Act. The mere fact that it must do so does not make the deployment of its resources to this task an unreasonable one.
To date 475 pages of documents responsive to the applicant's access request have been identified within that Command. Mr Steptoe estimates that it would take the Command approximately 3 hours to compile and collate these documents and refer them to Infolink for processing. I do not consider that time either substantial or unreasonable even if it is a diversion from the Command's primary allocated functions within the agency.
Dealing with this access application would require further trace inquiries to be issued to other units within that Command. Mr Steptoe does not provide any estimate of the time that would be required for the Command to respond to those requests. But even if I were to assume it may take twice the time estimated on the basis of currently identified documents (that is, an additional 6 hours) I would not consider that a substantial or unreasonable utilisation of the agency's resources even if it does constitute a diversion of the Command from its primary allocated functions within the agency. I say that having regard to the obligations of the agency as a whole under the GIPA Act, the general public interest in the disclosure of government information, and the demonstrable importance of the information sought to the applicant.
The agency submits, in effect, that the processing time required to deal with the applicant's access application is unreasonable having regard to the fact that access to a proportion (perhaps large proportion) of the information sought is likely to be refused on the basis of a conclusive or other overriding public interest against disclosure. While I am prepared to weigh in the balance the time required of the agency to determine this, I do not consider it appropriate to have regard to the asserted lack of utility of the application to the applicant on this basis. The ultimate outcome of the access application can only be speculative before it is processed in accordance with the provisions of the GIPA Act. In the course of processing the agency will be required to justify the basis upon which it refuses access to any information by reference to the relevant statutory criteria. The applicant is vested with rights to internal and external review in relation to such decisions. To assume an outcome at this stage, and in effect, to relieve the agency of the obligation to justify any decision to refuse access to information in accordance with the GIPA Act, would constitute a serious undermining of the policy of that Act in my view.
For the foregoing reasons, having regard to the test incorporated into s 60(3A) and (3B) of the GIPA Act I conclude that dealing with the applicant's access request would constitute a substantial utilisation of the agency's available resources but not an unreasonable one having regard to the general public interest in the disclosure of government information and the demonstrable importance of the information sought to the applicant. While the application will involve a degree of diversion of the Counter Terrorism and Special Tactics Command from its primary functions, it is an entity of government that must comply with the obligations imposed by the GIPA Act like any other. It cannot be unreasonable for it to do so. I am not satisfied that dealing with the application is capable of constituting any diversion of the resources available to Infolink because these resources are specifically appropriated for the purpose of dealing with GIPA access requests and related matters.
It follows from these conclusions that the agency's exercise of discretion pursuant s 60(1)(a) to refuse to deal with the application on the basis that it would constitute a substantial and unreasonable diversion of the agency's resources was not the correct or preferable decision. That decision must be set aside.
I now turn to the agency's alternative submission, which is that the correct or preferable decision is to refuse to deal with the applicant's access request pursuant to s 60(1)(b) insofar as it concerns event reports relating to the applicant from 1 January 2016 up to the date that he made an application for access to these reports on 14 December 2018.
I note that there is no issue that the applicant made an (amended) access application on these terms on 14 December 2018, that the agency dealt to finality with that application, and that its decision was subject to an administrative review, which affirmed the decision in Dezfouli v Commissioner of Police [2020] NSWCATAD 103.
The applicant contends that he requires the information he received pursuant to that application to be provided to him again, because these records have been misplaced or lost by the agency that administers his detention. He does not assert any basis upon which the agency would be required to make a different decision to the decision it made then in the context of his present application.
The discretion conferred by s 60(1)(b) requires an agency to be satisfied of two matters. First, the agency must be satisfied that it has already decided a previous application for the information concerned or information that is substantially the same as that information. Second, it must be satisfied that there are no reasonable grounds for believing that the agency would make a different decision in relation to that information in the context of the present application: see generally Klaric v Commissioner of Police, NSW Police Force [2020] NSWCATAD 47 at [30].
Insofar as this access application applies for information contained in event reports from 1 January 2016 to 14 December 2018 the first element of s 60(1)(b) is satisfied. The applicant has not advanced any reason to believe the agency would make a different decision to the decision it made in relation to his 14 December 2018 application in the context of this application and no such reason emerges from any of the material before the Tribunal in this administrative review. In this respect I place significant weight on the fact that the agency's decision in relation to the earlier access request has been subject to administrative review.
Having regard to these matters I am satisfied that it would be a wasteful use of the resources of the agency if it were required to deal again with an access request for this information. The correct or preferable decision is to refuse to deal with this element of the present application on this basis.
I am unable to test the applicant's assertion that the documents he obtained pursuant to his earlier request were lost by Justice Health. But even if that is so, the applicant has been provided with access to that information, and he may be taken to know its contents. Loss of documents obtained by an access applicant by a third party does not a sufficient justification for a further application dealing with the same subject matter.

Mr Steptoe's written and oral evidence may be summarised as follows: 1. since July 2023, the Infolink Command has employed 17 review officers who are responsible for determining access applications, 2. NSWPF received in excess of 9200 formal GIPA Act access applications in the year ending 30 June 2023. Additionally, Infolink receives an unspecified number of consultation requests from other State and Commonwealth agencies regarding access applications that involve NSWPF information that must be responded to, 3. in order to deal with this workload each review officer must determine to finality at least 10 access applications per week. This target or estimate is based on each review officer being fully deployed to determining access requests. It does not allow for absences or training etc, 4. Infolink is able to undertake its own searches of some of the repositories of information within the agency, including: 1. The Computerised Operational Policing System ("COPS") - which captures, stores and analyses operational information and intelligence on an organisation-wide basis, 2. The Records Management System ("RMS") - which stores electronic records such as correspondence, reports, employment records and legal documents, 3. View IMS - which stores electronic copies of case file items, 4. Computer Aided Dispatch System ("CAD") - a policing platform that provides services for incident and resource management. 1. However, that is not the case in respect of all information held by the agency. Where information is held by a particular Command or Unit, Infolink sends out a trace request to that Command or Unit asking that searches be undertaken to identify any information held that is responsive to the access request. A trace request may include guidance as to what searches should be undertaken for specific records. This may include case file items not held on ViewIMS, such as statements and other evidence, accountable book entries, recordings of "000" calls and documents relating to search warrants, 2. the unit formerly known as the Fixated Persons Investigation Unit is now called the Security Investigation Unit. This Unit falls within the agency's Counter Terrorism and Special Tactics Command (CTSTC). An organisation chart is attached to Mr Steptoe's Statement which indicates that there are 6 Group Commands with the CTSTC which have 16 sub units (leaving aside administrative units), 3. If NSWPF were to deal with the applicant's access request as presently stated, this would involve, 1. finalising searches for COPS Events relating to the applicant, 2. finalising searches of all reports and documents with the Security Investigation Unit (formerly known as the Fixated Persons Unit) relating to the applicant, 3. sending trace requests to the remaining units within the Counter Terrorism & Special Tactics Command (including units within the Anti-Terrorism and Security Group, Co-ordinated Response Group, Operations Group and State Protection Group) for those units to undertake searches for any additional documents relating to the applicant, 4. internal consultation between Infolink and operational units regarding any sensitivities or concerns regarding the release of information, 5. review by Infolink of each document identified as potentially relevant to determine if it is in scope and whether there are any public interest considerations against disclosure - the results of this review would need to be recorded on a Schedule with details of each document reviewed. 6. potentially, Infolink might need to undertake consultation with third parties with information of the nature requiring consultation for the purpose of s 54 of the GIPA Act, 7. once a decision has been made with respect to each document, this would need to be recorded on the schedule; the documents would need to be prepared to reflect this decision, including redaction of any material subject to an overriding public interest against disclosure; then a Notice of Determination would need to be drafted. 1. searches undertaken by Infolink to date for information responsive to the applicant's access request have identified 33 COPS events relating to the applicant which average 5 pages per report. The agency estimates that it would take, on average, 5 minutes per page to review the COPS events for the purpose of considering the application of s 14 of the GIPA Act to determine what information can be released and to redact information to which access should be refused. Based on this, it is estimated it would take 13 hours to review COPS records alone. That estimate does not include additional time that would be required to compile and collate the information and draft a Notice of Decision which outlines the reasons for decisions made with respect to the COPS events, 2. Infolink has also made preliminary inquiries of the Security Investigation Unit, in order to identify the volume of information held that is potentially responsive to the application. The Security Investigation Unit has advised that it holds 15 folders, containing approximately 98 records, totalling approximately 475 pages. These documents include statements, intelligence reports, TSIU assessments, written letters, and images. Processing this information would require the Security Investigation Unit to compile and collate all potentially responsive information that it holds to provide to Infolink for review. The agency estimates that this would take approximately 3 hours. 3. Once the Security Investigation Unit's records are provided to Infolink it would then be necessary for Infolink to index and review each document for the purpose of assessing: 1. whether the record is one created by the then Fixated Persons Investigation Unit and/or some other unit within the Counter Terrorism and Special Tactics Command such that there is conclusive presumption that there is an overriding public interest against disclosure, 2. if not, whether one or more of the public interest considerations in the Table to s 14 of the GIPA Act apply to some or all of the information - this review may require internal consultation to ascertain the sensitivity of particular information, 3. to identify any third parties that need to be consulted with respect to the potential release of information, and 4. to determine whether information may be released and, if access to information is to be refused, to redact that information and prepare documents for release. 1. Based on an estimated average of 5 minutes processing time per page (which it considers 'conservative') the agency estimates that it would take Infolink approximately 2375 minutes (or just under 40 hours) to index and review the documents identified by the searches undertaken by the Security Investigation Unit, 2. No further searches have been undertaken for information that is responsive to the applicant's access application at this stage. Should the agency be required to process that application Infolink would need to issue individual trace requests to other units within the Counter Terrorism and Special Tactics Command that might hold information requesting that each unit undertake searches of its records. The agency estimates that it would take a minimum of 30 minutes to prepare each trace request, for that trace request to be considered by the unit, for the unit to undertake preliminary searches to ascertain whether any responsive information is held, and to the unit to provide advice to Infolink. The time required to undertake these further searches will be greater if information that is responsive to the applicant's access application is identified and needs to be compiled for submission to Infolink. 3. having regard to the estimates set out above the agency estimates that it would take a minimum of 55 hours to process the applicant's access request in its current form. The agency considers this a 'conservative' estimate because it does not take account of: 1. any time that might be required to undertake consultation with third parties, 2. any time required to deal with additional information identified by searches of other unit within the Counter Terrorism and Special Tactics Command, and 3. the drafting of the Notice of Decision.

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (7)

Cited By (1)