Diab v Commissioner of Police, NSW Police Force [2026] NSWCATAD 82;

"1. Information from my CNI (Central Name Index) on COPS (Computerised Operational Policing System), (a mainframe computer database), specifically:

1a. All events (from 2018 to current date), that have currently or previously listed me as a Person of Interest or Suspect, including:

1a(i) My current status and all my previous status(s) for each event, including the dates of status changes;

1a(ii) The Command(s) involved, current and all previous, for each event;

Requested from: My CNI on COPS is accessible by any NSW Police Officer.

2. Information, of any sort, including documents, (paper, electronic, audio, visual) and emails (excluding those sent to or received from me), in relation to any enquiries, investigations or non-investigation of my statement (submitted as part of my workers compensation claim in 2018 and as part of a complaint made via the LECC in 2020, received by Chief Inspector Marc Holgate, Professional Standards Manager at Professional Standards Command), also showing justifications for commencing, continuing or declining investigations (no abbreviations).

Requested from Chief Inspector Mark Holgate, Professional Standards Manager at Professional Standards Command, any other involved NSW Police Officers.

The emails I have requested, as a starting point, are to and from Chief Inspector Holgate, in relation to enquiries, investigation or non-investigation of my statement, at any point. The timeframe for this search is from January 2018 to the current date.

3. Information, of any sort, including documents, (paper, electronic, audio, visual) and emails, in relation to contacting, attending or observing, at any time, any social groups or members of social groups, I am a member of, including (but not limited to), Couchsurfing and Meetup, (by private investigators, former NSW Police officers, serving NSW Police officers (whether it was on duty or off duty), or any other persons whatsoever), in relation to myself, including confirmation of the:

3a(1) Involvement and number of other persons/businesses;

3a(ii) Commands involved; and

3a(iii) The dates of occurrence, (including a record of all amendments and deletions made and the dates these changes were made).

Requested from: NSW Police.

4. All emails (including those sent or received from me) and any deleted emails, (recovered from the Vault), in relation to my information requests that were made in 2024 under the Government Information (Public Access) Act 2009 (GIPA Act).

Requested rom: Involved GIPA staff and involved NSW Police Officers.

I am requesting the emails, in relation to my information requests, (GIPA applications and ePersonnel file), from GIPA staff. So as I understand it, my email contact points have been you, (names provided). Excluding emails sent to or received from me. The time frame is from the time my application were initially made this year from July 2024 until the current date.

5. Information, of any sort, including documents, (paper, electronic, audio, visual) and emails, in relation to myself, obtained by private investigators, former NSW Police officers, serving NSW Police officers (whether it was on duty or off duty), or any other persons whatsoever, involving the monitoring of my place of residence or personal movements, at any location, including confirmation of the:

5a. Involvement and number of other persons/businesses;

5b. Commands involved;

5c. The dates of occurrence (including a record of all amendments and deletions made and the dates these changes were made).

Requested from: NSW Police.

An initial COPS location enquiry on my address (address provided). The timeframe for this is from January 2018 to the current date.

6. Information of any sort, including documents, (paper, electronic, audio, visual) and emails, in relation to enquiries made by private investigators, former NSW Police officers, serving NSW Police officers (whether it was on duty or off duty), or any other persons whatsoever, with any neighbours in my residential street, in relation to myself, including any requests made to monitory my house or personal movements, including confirmation of the:

6a. Involvement and number of other persons/businesses;

6b. Commands involved;

6c. The dates of occurrence (including a record of all amendments and deletions made and the dates these changes were made).

1. After conducting searches, the respondent ascertained from the Professional Standards Command (PSC) that the only information held in relation to paras 2, 3, 5 and 6 of the GIPA request was a "Triage Form". This was identified as being responsive to paras 1 and 2 of the GIPA request.
2. On 29 January 2025, the respondent advised the applicant that it was necessary to consult with the Law Enforcement Conduct Committee (LECC) in respect of the Triage Form. It then wrote to the LECC (as required by Sch 1 cl 6(2)of the GIPA Act) to advise that it considered the Triage Form to be excluded information under Sch 1 cl 6(1) of the GIPA Act, because it related to the handling of misconduct matters and the investigative and reporting functions of the LECC.
3. On 14 February 2025, the LECC advised the respondent that it objected to disclosure of the Triage Form as it contained excluded information of the LECC.
4. On 14 February 2025, the respondent made a decision and determined: (1) some documents were not held (GIPA Act, s 58(1)(b)); (2) to refuse access to the Triage Form on the basis that there is a conclusive presumption of an overriding public interest against disclosure (GIPA Act, Sch 1 cl 6) because the information in it related to the handling of misconduct matters and the investigative and reporting functions of the LECC (GIPA Act, Sch 2 cl 2); and (3) to grant access to the Infolink correspondence with redactions applied, on the basis that there was an overriding public interest against its disclosure on the basis that disclosure could reasonably be expected to:

"(a) Prejudice the effective exercise by an agency of the agency's functions (cl 1(f) of the table to s 14(2) of the GIPA Act);

(b) Endanger the security of, or prejudice any system or procedure for protecting any place, property or vehicle (c 2(e) of the table to s 14(2) of the GIPA Act);

(c) Facilitate the commission of a criminal act (cl 2(f) of the table to s 14(2) of the GIPA Act); and

(d) Reveal an individual's personal information (c 3(a) of the table to s 14(2) of the GIPA Act)."

1. On 13 March 2025, the applicant applied for an internal review of the decision made in relation to paras 2 and 4 of the GIPA request.
2. On 26 March 2025, the respondent issued a Review Decision and decided that: (1) it does not hold any information responsive to the GIPA request except that identified in the schedule to the original decision; (2) access to the Triage Form was refused as it contained excluded information of the LECC; and (3) access to Infolink documents was granted, subject to redactions of: (a) telephone numbers and email addresses of Infolink officers (cl 1(f) of the table to s 14(2) of the GIPA Act); (b) no information was withheld under cll 2(e) or 2(f); and (c) of the table to s 14(2) of the GIPA Act. The information that was redacted under cl 3(a) was personal information about Police officers that went beyond revealing that they were engaged in public functions, and did not relate to the substance of the emails.
3. The applicant then applied to the Information Commissioner for an external review and on 27 June 2025, the Information Commissioner determined that the review decision was justified and made no recommendation to the respondent.
4. On 30 June 2025, the applicant applied to the Tribunal for administrative review.
5. For the reasons that follow, I have decided that the correct and preferable decision is to vary the decision under review to release a single paragraph of information (located at the top of page 11 of the respondent's confidential bundle of documents) to the applicant, but to otherwise affirm it.

1. In the application for administrative review, the applicant raised concerns about the Information Commissioner's determination, including an assertion that her serious concerns were either not mentioned at all or were summarily dismissed. These assertions included:

"a. The fact that I submitted my statement as part of my WorkCover application in 2018, prior to the submission as part of a complaint to LECC, in 2020, is not discussed at all. Information in relation to my statement, existed prior to the complaint made to LECC. It should also still exist yet this has not been addressed.

b. The publicly stated fact means that the agency's basis to exclude requested information, because it is related to LECC, is wrong. It also relies on an incorrect interpretation of legislation. I did not request any information in relation to LECC's functions. However, this is not addressed by the PIC at all. The fact that receipt of my statement, preceded my complaint to LECC, has been ignored. The legislation that was relied on cannot be used to go back in time and be retrospectively applied to information and records made prior.

c. It is not reasonable to accept nor imply, that the information that was relied on to make submissions in relation to my WorkCover application and in relation to the matter heard at the Personal Injury Commission in 2019, was only the limited information that was supplied to me in response to my GIPA application and that all other information is deemed personal information or falls under LECC's excluded information. I am seeking information as to whether the agency has investigated the claims made in my statement, and if not, why not. At some level, given it has responded to my statement in at least two instances mentioned here, some examination of it must have occurred. It is not reasonable to assume that only a Triage Form and some emails from GIPA staff, are the only related records. In addition to the personal information that has been withheld, which I've been informed by the Agency and the IPC, mainly consists of email addresses and contact details of agency employees (which I did not at all request and explicitly stated so, to both the agency and the IPC, yet, it is still provided as a reason).

d. It is not reasonable to accept nor imply that Professional Standards Command only have a LEXX Triage Form in relation to the complaint I made via LECC. Because of the description of experiences and claims I have made in my statement, it constituted a Part 8A complaint under the Police Act which would have been first received by the Agency when I submitted it as part of my WorkCover application. Having previously worked in Complaint Servies at Professional Standards Command, I am familiar with complaint handling processes and it appears certain procedures have not been adhered to.

e. This raises questions, in addition to questions of whether searches were adequate, (which is what IPC focussed on), such as, were records that were supposed to be made not made, for perhaps the purposes of concealing actions and making accountability difficult? IF these records were made and no longer exist, were they destroyed before the applicable time limits? These are issues I raised with IPC and believe would have fallen within the scope of their jurisdiction, but this is not addressed. I fear that the delay in providing information may be so that it can be destroyed, before they may be required to supply it. I believe the time frame actually expires before the end of this year and I may as a result, need to also seek some sort of freeze order or notice to produce, to prevent that from happening, as well.

f. The agency has a long history of making it extremely difficult for me to obtain information, even for information they purportedly claim is readily available to former and current officers under the relevant legislation. I have even had some property that was only returned after several years after my employment ceased, with no reasonable explanations. These experiences, which not only form a background history but provide context to the issue at hand, will be explained in further documentation."

1. I confirm that this Tribunal does not have power to review a decision made by the Information Commissioner.

1. The respondent argued that the only information in dispute is: (1) the Triage Form; and (2) redactions in the Infolink correspondence. However, it noted that the applicant seeks a review of the following three decisions:

(1) The decision under s 58(1)(d) of the GIPA Act to refuse access to the Triage Form;

(2) The decision under s 58(1)(d) of the GIPA Act to grant access to the Infolink correspondence in redacted form; and

(3) The decision under s 58(1)(b) of the GIPA Act that it does not otherwise hold any information responsive to the GIPA request.

1. The respondent argued that the correct and preferable decision is for the Tribunal to affirm the decision under review.

1. The respondent argued that the decision under review should be affirmed because the Triage Form contains excluded information of the LECC under Sch 1 cl 6 of the GIPA Act. It is "excluded information" because it relates to the handling of misconduct matters and the investigative and reporting functions of the LECC as defined in Sch 2 cl 2 of the GIPA Act. Accordingly, there is a conclusive presumption of an overriding public interest against disclosure.
2. The respondent relied upon an affidavit of Chief Inspector (CI) Holgate dated 9 October 2025. His affidavit was admitted into evidence and marked as Ex B, subject to his attendance for cross-examination.
3. CI Holgate deposed that he has been the Manager of the Professional Standards Command (PSC) since August 2019. His duties and responsibilities relate to ensuring that all legislative, policy and administrative obligations relating to complaint management are met for misconduct matters about members of the NSW Police Force (NSWPF) (police officers and administrative employees) that are managed by the PSC. This includes: (1) having oversight over the management of complaints made under pt 8A of the Police Act 1990 (NSW) (Police Act) that are referred to PSC for investigation by Police Area Commands and Police Districts, and dealt with by the Complaints Management Team; (2) ensuring standards of professional conduct and discipline are maintained across the NSWPF; (3) preparing policies and procedures on the management of, and investigation into, misconduct matters; (4) providing advice in relation to disciplinary action to be taken as a consequence of misconduct by sworn members of the NSWPF; (5) liaising with the LECC in relation to serious complaints; (6) being part of the Executive Complaints Management Team, which assesses, monitors, and manages misconduct matters involving officers of the rank of Assistant Commissioner and above; and (7) being part of the PSC Complaints Management Team, which assesses, monitors, and manages misconduct matters that PSC is investigating.
4. CI Holgate stated that under s 26 of the Law Enforcement Conduct Commission Act 2016 (NSW) (the LECC Act), one of the LECC's functions is to refer to the Commissioner of Police for police investigation misconduct matters relating to: (1) conduct of members of the NSWPF that are (or could be) officer misconduct or officer maladministration; and (2) conduct of the NSWPF that is (or could be) agency maladministration.
5. CI Holgate deposed that the NSWPF is required to keep the Misconduct Matters Information System under s 128 of the Police Act and the NSWPF refers to this system as IAPRo. Under the current Misconduct Matters Management Guidelines agreed between the LECC and the Commissioner under s 14 of the LECC Act, all documentation considered or used in the triage, investigation, and resolution of a "misconduct matter" must be uploaded onto IAPRo and the LECC is to be given unrestricted access to it.
6. CI Holgate deposed that the source of information relating to the searches for information conducted in relation to this GIPA request is Sergeant Jody Gibbons (a Sergeant within his team in the PSC). When the GIPA request was received and responded to, he was on leave and he had no personal involvement in responding to it despite the fact that he was named in it. He only became aware of the GIPA request in October 2025 in the context of these proceedings.
7. CI Holgate stated that Sergeant Gibbons searched IAPRo using the search term "Linda Diab" for information responsive to para 2 of the GIPA request. This located a Triage Form, to which access was refused, and emails between himself and the applicant (which were outside the scope of the GIPA request).
8. CI Holgate stated that Triage Forms are used by the NSWPF at the beginning of a complaint or misconduct matter to determine the most effective and appropriate way to deal with any allegations raised. These can contain a large amount of information and rationale for either declining to investigate a matter, or if it is investigated, the most appropriate method of investigation.
9. In cross-examination, the applicant asked CI Holgate whether there was a previous Agreement between the LECC and the Commissioner? He replied that he did not know. The applicant then put to CI Holgate that the Agreement in the respondent's bundle is different to earlier agreements. He replied that he did not know. The applicant then asked CI Holgate to agree with her proposition that the agreement in the bundle did not apply to her matter. He replied that he did not know the answer and he could not agree to something that he did not know.
10. The applicant put to CI Holgate that the documents listed in annexure B are not evidence of a proper investigation of a complaint. CI Holgate disagreed with that proposition.
11. The applicant put to CI Holgate that the Triage Form is separate to the documents listed in it. He replied that the LECC sent the Form and the documents listed in it to the NSWPF for triaging and the listed documents form part of the Triage Form.
12. The applicant asked CI Holgate whether he had contacted her in relation to her previous complaints to the LECC? He replied "Yes." The applicant then put to CI Holgate that the complaint referred to in annexure B is not relevant to her current complaint. He replied to the effect that he does not recall what her previous complaint was about and that his statement relates to the current complaint.
13. The applicant then sought to ask CI Holgate questions about the decision that the respondent made in triaging her complaint. However, the Tribunal disallowed those questions on the basis that it has no power to review a decision made on triaging of a complaint by the respondent in administrative review proceedings under the GIPA Act.
14. The applicant then asked CI Holgate whether he was aware that in 2022 she resumed making enquiries about her complaint? He replied that in 2022, Customer Assistance referred a complaint to the PSC, but that he does not receive all referrals made to PSC and he was unable to state whether or not he received an email from the applicant at that time. He recalled receiving a large statement from her, but he is unable to state what was in that statement.
15. The applicant stated that she had no further questions for CI Holgate and as the Crown Solicitor did not wish to re-examine him, CI Holgate was excused from further attendance.
16. The respondent referred to the decision in Colakovski v Australian Telecommunications Corporation [1991] FCA 133; (1991) 101 ALR 109, in which the Federal Court of Australia determined that the expression "arises from" is of wide import and the Tribunal has generally held that the phrase is to be construed with the widest import (Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19]- [23]; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [8]).
17. In Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 at [77], the Appeal Panel referred to several authorities that adopted a wide reading of the term "relates to" and it held:

"We consider that the term 'relates to,' as it is used in the definition of 'excluded information' in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament's intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to 'open government information to the public by ... providing that access to government information is restricted only when there is an overriding public interest against disclosure' (GIPA Act, s 3(1)(c)). The use of the term 'relates to' indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG's complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2)." (emphasis added)

1. The respondent noted that the Appeal Panel recently applied this analysis in Jeray v Information and Privacy Commission [2024] NSWCATAP 239 at [142]- [143], in determining whether certain information was "excluded information" under the GIPA Act for the purposes of determining whether a valid access application had been lodged. The Appeal Panel stated that the question of whether information is "excluded information" turns on whether "the information in issue has a connection with the specified function." See also: He Zhang v Law Enforcement Conduct Commission [2024] NSWCATAD 158 at [31].
2. The respondent argued that in accordance with inter-agency guidelines made under s 14 of the LECC Act, and currently in force, "all documentation considered or used in the triage, investigation and resolution of a misconduct matter" must be uploaded to the misconduct management information system. The LECC has unrestricted access to this system and all information that the NSWPF uploads to it is therefore excluded information of the LECC.

1. The respondent relied upon an affidavit of Ian Steptoe affirmed on 13 October 2025. This was admitted into evidence and marked as Ex A.
2. Mr Steptoe deposed that he is the Senior Advisory Officer for the Infolink Unit of the respondent and that he has spent seven of his twelve years of employment with the respondent within that Unit. In his role, he makes decisions on GIPA requests and internal review applications and also manages external review cases. He also provides advice, guidance, and training to review officers in other Commands within the respondent about the requirements of the GIPA Act.
3. Mr Steptoe stated that he conducted the internal review in this matter and he issued the internal review decision dated 26 March 2025. He stated that the references to "event," "event report", and "events" are all references to COPS Event records. He identified the search procedures followed by the respondent when a GIPA request is received and the systems that store documents in various formats as follows:

(1) Computerised Operational Policing System (COPS), which is an electronic database used by the respondent as a record-keeping system to capture, record and store information on an organisation-wide basis. It provides a means by which Police Officers record and enquire on the details of incidents, persons, organisations, locations, objects, property, and vehicles that are of interest to Police. Any of these become of interest to Police when they are involved in criminal or non-criminal activities, which come to the attention of Police during the performance of their duties.

(2) View Imagery Management System (ViewIMS), which is an electronic database used to store evidentiary material relating to COPS events, including audio visual material, recordings of interviews, and witness statements.

(3) Records Management System (RMS), which is ordinarily used to store administrative documents, including correspondence.

(4) NSWPF Misconduct Matters Information System (IAPRo); and

(5) Pre-emptive email vault where all emails sent and received by NSWPF staff are stored (the Vault).

1. Mr Steptoe deposed that before making the original decision, he reviewed the following documents: (1) request sent to PSC on 6 January 2025; (2) the response from PSC, including the GIPA Instruction Sheet completed on 10 January 2025 and the documents located by PSC (set out at Tabs 12 and 12A of the respondent's bundle of documents); (3) the request sent to Police Transport Command on 6 January 2025; (4) the response, including a GIPA Instruction Sheet (found at tabs 15 and 15A of the respondent's bundle) - no documents were found; (5) an information request sent to South Sydney Police Area Command on 9 January 2025 (tab 13 of the bundle); (6) the response, including the completed GIPA Instruction Sheet dated 9 January 2025 (tables 14 and 14A of the bundle) - no documents were found; and (7) emails detailing searches conducted by Technology & Communication Services Command and Infolink officers' emails relating to the previous GIPA application (at Tabs 16 to 19 of the bundle).
2. Before making the internal review decision, Mr Steptoe stated that he undertook further specific searches, including: (1) a person search of COPS using the applicant's name; (2) a person search of COPS using both the applicant's name and date of birth together; (3) he reviewed all records returned from these searches to identify any information within the scope of the GIPA request; and (4) he considered whether any other new search queries could be conducted that would reveal additional or different information from that which had already been located. In all, he identified one COPS Event Record created in the period from January 2018 to the date of the GIPA request, which identified the applicant as a "Person named" (not a person of interest or suspect). He conducted further searches in the Event sub-system and confirmed that the applicant's status in the event had not been changed since it was created. He also conducted a location search using the applicant's address as a search term to identify any COPS reports that had not been located by the other searches. Nothing was located. He also conducted "any word" and "title word" searches on RMS using the applicant's name and address (separately) as search terms, but this did not locate any information within scope of paras 1, 3, 5 and 6 of the GIPA request. He concluded:

"33. I did not locate any information (on COPS or RMS) that would indicate the agency has conducted any enquiries of any nature with respect to the applicant or her address in the period January 2018 to the date of receipt of the GIPA application."

1. The applicant did not require Mr Steptoe to attend for cross-examination and his evidence on these matters is not challenged.

1. When the matter commenced, the applicant initially stated that she wished to rely upon a bundle of confidential documents. However, the Tribunal stated that there is no procedure for receiving confidential evidence from an applicant in administrative review proceedings under the GIPA Act. If she wished the Tribunal to consider this bundle of evidence, it would be considered as open evidence and reported in the decision as required.
2. The Tribunal allowed the applicant time to consider her position on this issue.
3. The applicant objected the respondent relying upon its reply submissions because they were served on her one day of the date set out in the timetable.
4. The Tribunal drew the parties' attention to the object set out in s 3(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), namely "to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". As there was no evidence that a delay of one day caused the applicant any significant prejudice, and the document was submissions and not evidence, the Tribunal determined that it was appropriate to extend the time for service to the date served under s 41 of the NCAT Act.
5. The applicant ultimately decided to not rely upon her confidential evidence.
6. The applicant argued that the respondent would have received her statement that was served upon it as part of her workers compensation claim in the Personal Injury Commission of NSW, and that there must be other documents that the respondent had considered. However, no other documents have been disclosed.
7. There was a discussion between the applicant and the Tribunal, as to whether her statement was served upon the respondent or its workers compensation insurer for the purposes of her workers compensation claim. However, the applicant maintained her assertion that it was served on the respondent and that the respondent should have investigated the complaints that she made in it.
8. The Tribunal repeated that it has no power to review a decision made by the respondent under the Police Act to not conduct an investigation in administrative review proceedings under the GIPA Act.
9. In relation to public interest considerations against disclosure, the applicant argued that there is no case law that says that documents that are referred to or considered during triage are excluded information of the LECC. However, she was unable to cite any case law that supported her argument on this issue.
10. In relation to non-conclusive public interest considerations against disclosure, the applicant argued to the effect that the Tribunal should not find that cl 1(f) of the table to s 14(2) of the GIPA Act applies, as there is no genuine concern. The applicant also noted that cl 3(a) of the table to s 14(2) only applies to personal information that goes beyond the public functions of the individual concerned.

1. In its reply submissions, the respondent noted that the applicant had raised a number of extraneous matters in her submissions, which include:

(1) Its handling of four GIPA requests that she made in July 2024. It argued that internal NSWPF correspondence regarding those requests are contained in the Infolink documents;

(2) The handling of complaints of police misconduct which the applicant made to the LECC on 25 June 2020 and 19 July 2021;

(3) The contention that various procedures under the Police Act and other policies have not been complied with in the handling of her complaints; and

(4) The contents of a statement which she submitted as part of a workers compensation claim and annexed to her LECC complaint in June 2020. She contends that the statement identifies numerous examples of officer and agency maladministration and misconduct within the meaning of the Police Act.

1. The respondent argued that none of these matters are relevant to the current administrative review proceedings, and the Tribunal need not address them.
2. However, for sake of completeness, the respondent stated that:

(1) The applicant contends that having regard to the way that the LECC complaints were handled, it must follow that other documents responsive to the GIPA request exist and are held by the respondent. However, the respondent has led clear and cogent evidence as to the reasonableness of its searches and there is no basis to doubt or reject that evidence;

(2) The applicant submits that documents have been moved, altered, or destroyed. However, there is no evidentiary basis for that submission. Even if other documents did exist in respect of the LECC complaints, they would constitute excluded information of the LECC and the applicant would not be entitled to access them under the GIPA Act;

(3) The applicant generally relies, as a public interest consideration in favour of disclosure (GIPA Act, s 12(2)(e)), on the proposition that the material sought would substantiate that the respondent has engaged in misconduct, negligence, or improper conduct. However, the Information Commissioner held:

"In relation to section 12(2)(e), I rely on the Appeal Panel's consideration in Commissioner of Police (NSW) v Barrett [2015] NSWCATAP 68 at [136], which provides that there must be a reasonable basis in the material to substantiate that an agency has engaged in misconduct, negligence or improper conduct.

It is a very serious matter for a Tribunal to accept as relevant to its determination as a public interest favouring disclosure that 'disclosure ... could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.' As expressed, this consideration carries an imputation in relation to the agency's conduct that would need to have some reasonable basis in the material presented by the access applicant or in the material seen by the Tribunal in confidence. There is nothing in the Tribunal's reasons to indicate that it had any material that 'could reasonably be expected to reveal' the types of improper conduct to which the above formulation refers.

In my view, upon inspection of the information in issue there is no reasonable basis that would sustain the assertion that the public interest consideration at section 12(2)(e) of the GIPA Act is relevant and appropriate."

This conclusion is plainly correct and the Tribunal should accept it.

(4) The applicant made submissions about cll 2(e) and 2(f) of the table to s 14(2) of the GIPA Act, but the respondent does not rely upon either of these considerations;

(5) The applicant complains about the way that the original review officer negotiated the narrowing of her access application and contends that she only agreed to narrow it because she was exhausted and had fears that any further delay would result in records being altered, moved, or destroyed. However, there is no evidentiary basis for the latter contention and the firmer contention is not relevant to the current administrative review proceedings.

(6) The applicant rejects as ridiculous and irrational, the respondent's argument that email addresses and other contact details of police officers have been withheld because if this becomes known, there is a legitimate concern that members of the public may attempt to make direct contact with the officers or publish them for the purposes of encouraging other members of the public to make contact. She asserts that officers regularly give their work contact details for almost every single incident attended. However, she misunderstands that the officers whose details have been redacted are employees within the respondent's Infolink Unit and not serving police officers who attend incidents.

1. As the respondent had lodged a copy of the Triage Form and unredacted emails with the Tribunal on a confidential basis, the Tribunal determined that it was necessary to consider this evidence in the absence of the applicant under s 107 of the GIPA Act.
2. Accordingly, the Tribunal adjourned the open hearing and excused the applicant from further attendance, on the basis that upon completion of the confidential hearing, it would reserve its decision.

1. [NOT FOR PUBLICATION]
2. [NOT FOR PUBLICATION]

1. At the conclusion of the confidential hearing, the Tribunal reserved its decision.

1. The respondent argued that s 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9 of the GIPA Act confers on a person making a GIPA request a legally enforceable right to access unless there is an overriding public interest against its disclosure.
2. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Sch 1. In this matter, Sch 1 cl 6 of the GIPA Act provides that there is a conclusive presumption that applies with respect to "excluded information". Clause 6(1) provides:

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

(2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.

(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

1. "Excluded information" is defined in Sch 4 cl(1) of the GIPA Act as follows:

excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency.

1. The LECC is an agency specified in Sch 2 cl 2 of the GIPA Act and "excluded information" of the LECC is information "relating to its corruption prevention, handling of misconduct matters (within the meaning of the Law Enforcement Conduct Commission Act 2016), investigative and reporting functions."
2. Where information sought in a GIPA request is not subject to a conclusive presumption under s 14(1) of the GIPA Act, regard must be had to the public interest test set out in s 13, which provides, "There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure."
3. Section 12 of the GIPA Act provides that there is a general public interest in favour of disclosure of government information and s 12(2) provides that nothing in the GIPA Act limits any other public interest considerations in favour of disclosure of government information that may be taken into account for the purposes of determining whether there is an overriding public interest against disclosure of government information. These include, but are not limited to, the examples set out in s 12(2).
4. The table to s 14(2) of the GIPA Act sets out the only public interest considerations against disclosure that an agency may consider in applying the public interest test under s 13. In this matter, the relevant public interest considerations against disclosure are:

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,

...

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,

...

1. Section 58 sets out how GIPA requests may be decided by agencies and s 80 of the GIPA Act sets out those decisions that are "reviewable decisions". Relevantly, s 80(d) refers to a decision to refuse to provide access to information and s 80(e) refers to a decision that information is not held. A person who is aggrieved by a reviewable decision may apply to the Tribunal under s 100 of the GIPA Act and the agency bears the onus of establishing that its decision is justified (GIPA Act, s 105(1)).
2. Section 107 provides:

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.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of -

(a) the public and the applicant, and

(b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

Law Enforcement Conduct Commission Act 2016 (NSW) (the LECC Act)

1. Section 25 of the LECC Act provides that the LECC has functions conferred on it under the LECC Act or any other Act. Relevantly, s 26 sets out its functions with respect to "misconduct matters" as follows:

Functions with respect to misconduct matters

The functions of the Commission with respect to misconduct matters include the following -

(a) to receive misconduct matters directly or that are notified to it in accordance with misconduct matters management guidelines,

(b) in accordance with misconduct matters management guidelines -

(i) to detect, investigate (including by carrying out examinations in appropriate cases) and expose conduct that is (or could be) serious misconduct or serious maladministration, and

(ii) to refer to the Commissioner of Police for police investigation misconduct matters relating to conduct of members of the NSW Police Force that are (or could be) officer misconduct or officer maladministration and conduct of the NSW Police Force that is (or could be) agency maladministration (other than conduct referred to in subparagraph (i)), and

(iii) to refer to the Crime Commissioner for Crime Commission investigation misconduct matters relating to conduct of Crime Commission officers that are (or could be) officer misconduct or officer maladministration and conduct of the Crime Commission that is (or could be) agency maladministration (other than conduct referred to in subparagraph (i)), and

(iv) to refer misconduct matters for investigation or action by other appropriate authorities, and

(v) to oversee the investigation or handling of misconduct matters referred by it to the Commissioner of Police, Crime Commissioner or other appropriate authorities.

1. Section 4 of the LECC Act defines a "misconduct matter" as either, (a) a complaint (as defined in s 12), or (b) misconduct information (as defined in s 13).
2. Section 12 of the LECC Act defines "complaint" as:

complaint means an allegation that any conduct -

(a) of a police officer (whether or not named or identified) - is (or could be) conduct that falls within the description of police misconduct or officer maladministration (a police complaint), or

(b) of a Crime Commission officer (whether or not named or identified) - is (or could be) conduct that falls within the description of Crime Commission officer misconduct or officer maladministration (a Crime Commission complaint), or

(c) of an administrative employee (whether or not named or identified) - is (or could be) conduct that falls within the description of administrative employee misconduct or officer maladministration (an administrative employee complaint), or

(d) of the NSW Police Force or the Crime Commission - is (or could be) conduct that falls within the description of agency maladministration (an agency complaint).

1. Section 13 defines "misconduct information" as:

misconduct information means a mandatory or other report or other information contained in any other document that the Commission becomes aware of otherwise than through a complaint that indicates or suggests conduct is (or could be) officer misconduct or officer maladministration or agency maladministration.

Note.

Information may include, for example, a sound recording or transcript of an intercepted telephone conversation or report of an audit of officer access to police information systems.

mandatory report means a report made under a duty imposed by section 33 of this Act or section 211F of the Police Act 1990.

(1) Definition - police misconduct For the purposes of this Act, police misconduct means any misconduct (by way of action or inaction) of a police officer -

(a) whether or not it also involves participants who are not police officers, and

(b) whether or not it occurs while the police officer is officially on duty, and

(c) whether or not it occurred before the commencement of this subsection, and

(d) whether or not it occurred outside the State or outside Australia.

1. Section 43 of the LECC Act provides that as soon as practicable after receiving or becoming aware of a misconduct matter concerning a police officer, the LECC is to give the Commissioner of Police notice of the misconduct matter.
2. Section 44 of the LECC Act sets out the decisions that the LECC may make when it receives or becomes aware of a misconduct matter. Relevantly in relation to this matter, it can decide to do any one or more of the following: (1) to investigate, or take over the investigation, of the misconduct matter; (2) to refer the misconduct matter for police investigation or other action; (3) to refer the misconduct matter to the Commissioner of Police for information; (4) to refer the misconduct matter to another body or person for investigation, and to oversee the investigation by that other body; (5) to attempt to deal with the misconduct matter by alternative dispute management process; or (6) to take no further action with respect to the misconduct matter.
3. Section 40 of the LECC Act requires the registration of misconduct matters in the "misconduct matters information system" of: (1) information about all police complaints, administrative employee complaints and agency complaints about the NSW Police Force received by the Commission; and (2) such information as is required to be registered in the system by a misconduct matters management guideline.
4. Section 14 provides for misconduct matters management guidelines to be formulated from time to time by agreement between the LECC and the Police Commissioner. Relevantly, the guidelines provide that: (1) all documentation considered or used in the triage, investigation, and resolution of a misconduct matter should be uploaded, or otherwise clearly referenced, in the misconduct matters information system; and (2) the LECC is to be provided unrestricted access to the misconduct matters information system.

Administrative Decisions Review Act 1997 (NSW) (the ADR Act)

Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)

1. Section 3(d) of the NCAT Act provides that an object of the Act is to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible.
2. Section 41 provides:

Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

1. Is the Triage Form excluded information of the LECC?

1. Clause 1 of Sch 4 of the GIPA Act provides that "excluded information" of an agency specified in Sch 2 means "information that relates to any function specified in that Schedule in relation to the agency."
2. The LECC is an agency specified in Sch 2 cl 2 of the GIPA Act and excluded information of the LECC is "information relating to its corruption prevention, handling of misconduct matters (within the meaning of the LECC Act), investigative and reporting functions."
3. Based on the evidence before me, I am satisfied that the Triage Form is excluded information of the LECC. Accordingly, s 14(1) of the GIPA Act provides that there is a conclusive presumption of an overriding public interest against its disclosure.
4. To the extent that it is necessary to do so, I am satisfied that the documents that are listed in the Triage Form as having been sent to the respondent for triaging, forms part of the excluded information of the LECC and is subject to the same conclusive presumption against disclosure.

1. The public interest test under s 13 of the GIPA Act applies to the Infolink correspondence.

Public interest considerations in favour of disclosure

1. I note that the respondent identified the following public interest considerations in favour of disclosure: (1) the statutory presumption in favour of the disclosure of government information; (2) the general right of the public to have access to government information held by agencies; and (3) the requested information includes the applicant's personal information.
2. The respondent decided to afford these considerations significant weight and I agree with that decision.

Public interest considerations against disclosure

1. The respondent relied upon cll 1(f) and 3(a) of the table to s 14(2) of the GIPA Act.
2. The respondent relied upon cl 1(f) with respect to emails that contain email addresses and direct contact numbers of Police officers, as that information is not publicly available, and there is a genuine concern that if that information becomes known members of the public will attempt to make direct contact with the officers or publish the contact details and thus encourage other members of the public to make contact.
3. The respondent decided that if police officers are pre-occupied with having to manage large numbers of emails or phone calls from members of the public, they will be diverted from their core functions. Therefore, release of the disputed information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions.
4. The respondent also relied upon cl 3(a) of the table to s 14(2) of the GIPA Act on the basis that disclosure would reveal an individual's personal information.
5. Contrary to the applicant's submissions, this disputed information is that of Infolink officers who do not attend incidents, and not that of serving police officers.
6. In Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59, the Appeal Panel held that personal information is only revealed when it is publicly disclosed. It also decided the definition of personal information is wide and not defined by reference to matters that have occurred in private but is concerned with information about an individual. The provision is directed to revealing information and not an event to which the information relates.
7. In this matter, there is no evidence that the personal information of Infolink officers is within the public domain. Therefore, releasing that information to the applicant under the GIPA Act would be to disclose it to the world at large.
8. In DQN v University of Sydney [2019] NSWCATAD 159, the Tribunal held that even if an applicant is aware of the name of a third party, that information would not be considered to have been revealed where there is no evidence that the information has been publicly disclosed.
9. Based on the information and evidence before me, I am satisfied that cl 3(a) of the table to s 14(2) of the GIPA Act applies to the personal information of Infolink officers.
10. The Tribunal's findings in relation to the disputed information are as follows:

Contains extraneous personal information of Infolink officers.

Top of the page - email contains extraneous personal information. Final three row are outside the scope of the GIPA request.

Contains extraneous personal information of Infolink officers.

Contains direct police officers' email addresses and direct contact numbers.

1. The respondent decided to apply greater weight to the public interest considerations against disclosure. In my view, these considerations should be given substantial weight.

1. On the evidence before me, I am satisfied that there is an overriding public interest against disclosure of the disputed information in the Infolink documents, with the exception of the paragraph at the top of page 11 of the respondent's confidential bundle of documents. That paragraph should be disclosed to the applicant.

3. Is any further information held by the respondent?

1. This issue involves a consideration of whether the respondent conducted reasonable searches as required by s 53 of the GIPA Act.
2. In considering this issue, the Tribunal must follow the approach set out by the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [44], which held:

"In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:

(1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5);

(2) determine whether the agency has proved any relevant factual issues on the balance of probabilities;

(3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;

(4) applying those findings, decide what the correct or preferable decision is;

(5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act."

1. In Walker v Roads and Maritime Services [2019] NSWCATAD 177, the Tribunal summarised the principles applied in considering the reasonableness of searches undertaken by an agency, and stated (at [87]):

"(a) what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30];

(b) that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15];

(c) the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28]."

1. In Robinson v Commissioner of Police [2014] NSWCATAP 73, the Appeal Panel identified at [33] that the focus of the s 53(2) inquiry is "the administrative steps taken by the agency's search officers."
2. Where data is stored electronically, the Tribunal has held that s 53 of the GIPA Act does not require the agency to provide specific details of search engines or algorithms of its electronic data systems. Rather, the agency will discharge the onus that its search efforts were reasonable by identifying the electronic systems and platforms on which it retains information of the kind sought by the access applicant and identifying what searches were conducted on those systems and platforms for the information sought: Alam v Insurance and Care NSW [2020] NSWCATAD 148.
3. In this matter, Mr Steptoe identified the electronic systems and platforms that were searched and he identified the searches that were conducted on those systems and platforms. Mr Steptoe also gave in-depth evidence as to the nature of the searches that were conducted and the reasons for conducting was admitted without challenge and I accept that evidence. I consider it significant that when he conducted further searches prior to issuing the internal review decision, no further information responsive to the GIPA request was identified.
4. The evidence of CI Holgate was focussed on the Triage Form and while the applicant sought to question him about why the respondent did not investigate the allegations/complaint contained in the statement that she relied upon in her workers compensation claim, questions of that nature are beyond the Tribunal's jurisdiction in these administrative review proceedings and they were disallowed on that basis. His evidence was not seriously challenged by the applicant and I accept it.
5. For these reasons, I am satisfied that the respondent conducted reasonable searches.

(1) The decision under review is varied to release the paragraph at the top of page 11 of the respondent's confidential bundle of documents to the applicant.

(2) The decision under review is otherwise 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.