mixed. Court remitted that part of the Commissioner’s 17 October 2019 decision that related to Items 4(b)–(f) for further consideration on the basis the information is subject to the GIPA Act and items 1(f),...
Key principles
Information held within the NSW Police COPS system that records access, modification and related metadata (as framed by Items 4(b)–(f) of the 30 June application) constitutes a...
An agency is not obliged under s75(2) GIPA Act to create a new record; however, where an applicant seeks information and the agency relies on s75(2) to refuse on the basis that...
When an agency claims an overriding public interest against disclosure (under Table items in s14), the agency bears the evidential burden of establishing the systemic basis for...
The correct process is: identify applicable public interest factors for disclosure (s12), identify applicable public interest factors against disclosure (only from the Table in...
Issues before the court
Does providing the information requested in Items 4(b)–(f) of the 30 June application require the agency to create a 'new record' for the purposes...
Plain English Summary
The Tribunal found that audit information within the NSW Police COPS system is a 'record' under the GIPA Act. The police argued that providing the applicant with the requested information would require running a 'reverse audit' (creating a new record) and that disclosure would prejudice law enforcement and investigative integrity. The Tribunal accepted the police evidence that there are systemic harms from releasing reverse-audit style reports, but the police failed to produce the specific records or show that a reverse audit was the only way to provide the information. As a result the Tribunal ordered release of certain material, upheld other withholdings where harms were proven, and remitted the reverse-audit issue to the Commissioner for reconsideration with appropriate particularisation and consideration of alternative disclosure methods.
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Deep Dive
1,844 words · generated 20/06/2026
Did the Commissioner establish that Items 1(f), 1(h) and 2(b) of the Table in s14 GIPA Act (public interest factors against disclosure) applied to...
How should the Tribunal weigh the public interest in disclosure against law enforcement/confidentiality/public safety concerns and the applicant's...
Cited legislation
4 cited instruments linked from this judgment.
What happened
DYD lodged a Government Information (Public Access) Act 2009 (NSW) (GIPA) request on 30 June 2019 seeking a range of material held by NSW Police, including specific COPS (Computerised Operational Policing System) audit information about when records concerning DYD and immediate family members were created, modified, by whom, why and who viewed them (Items 4(b)–(f)) (see the 30 June Application quoted in Background). The Commissioner of Police issued a decision on 17 October 2019 releasing some material and withholding or redacting other material; importantly, the Commissioner refused Items 4(b)–(f) in full, submitting that providing that material would require the creation of a new record (a 'reverse audit') and raising public interest grounds against disclosure under items 1(f), 1(h) and 2(b) of the Table in s14 GIPA Act.
DYD sought review in the NSW Civil and Administrative Tribunal (NCAT). At hearing, the police filed affidavit evidence from Chief Inspector Mark Holgate and Detective Sergeant Jason Ferns explaining the nature of COPS audits, distinguishing routine forward audits from 'reverse audits', and explaining why disclosure could compromise law enforcement methods, deter informants, enable evasion and potentially endanger officers (evidence passages summarised at [84]–[101] and [27]–[37]).
The Tribunal accepted that the COPS audit material is a 'record' for the purposes of Schedule 4, clause 10 of the GIPA Act. However, the Commissioner did not provide the specific records or adequate evidence to demonstrate that a reverse audit was the only, or necessary, manner of producing the applicant’s requested information, nor did the Commissioner demonstrate the specific adverse effects of disclosure for the exact information at issue. Consequently, the Tribunal ordered release of material listed as 'Release' in its tables (paragraphs 80 and 81), affirmed other withholdings where both systemic and specific effects were established, and remitted the Items 4(b)–(f) issue to the Commissioner for reconsideration (Orders 1–4).
Why the court decided this way
The decision rests on three linked legal and evidentiary points.
Statutory framework: GIPA presumes disclosure (s5) and accords applicants an enforceable right to access government information unless there is an overriding public interest against disclosure. Where no conclusive presumption applies, the agency bears the burden of establishing the existence of an overriding public interest against disclosure (s105) (see The GIPA Act and Access Applications [1]–[5]).
'Record' status and s75(2): The Tribunal found that the COPS audit material (logs of access, view, modification metadata) is itself a 'record' under Schedule 4 clause 10, consistent with prior Tribunal reasoning that audit trails in COPS are capable of being produced under GIPA (see Considerations [1], Denyer and Barrett discussions). That finding meant the material was within GIPA, and s75(2) refusal (refuse to create new records) could not be relied upon unless the Commissioner proved that production would require making a genuinely new record.
Systemic vs specific evidence and balancing: The Tribunal applied the established approach (Camilleri and Barrett 2) requiring an agency to prove the systemic basis for claimed public interest protections and then to show that disclosure of the specific information requested could reasonably be expected to have the asserted adverse effects. CI Holgate's evidence established the systemic effects of disclosing reverse-audit-style reports (e.g., enabling evasion of detection, revealing methodologies, risking informant identification, threats to officers) ([84]–[101]). However, the Commissioner did not provide the specific contested records or particularised explanation of what those records would reveal in this case. The absence of the particulars meant the Tribunal could not determine whether the asserted harms would follow from disclosure of the actual records and therefore could not complete the statutory balancing exercise in respect of Items 4(b)–(f) (Considerations [5]–[7]). Accordingly, the Tribunal remitted that part of the decision to the Commissioner to reconsider in light of those gaps (Orders 1–2).
For pages where the Commissioner provided sufficient evidence showing both systemic and specific effects, the Tribunal accepted the asserted s14 harms and withheld the material; where the Commissioner failed to show specific harms, the Tribunal ordered release, giving weight to the statutory presumption in favour of disclosure (Conclusion [4], [5], [6], [9]–[11] and the tables at paragraphs 80 and 81).
Before and after state of the law
Before this decision:
Prior NCAT decisions (Barrett [2014]; Denyer [2018]; Barrett 2 [2016]) had considered whether COPS audit trails are records and whether compiling audit information constitutes creation of a new record under s75(2). Those earlier decisions had concluded that extracting audit data did not necessarily amount to creation of a new record and that audit trails could be produced as records under GIPA.
This decision:
Confirms that COPS audit material is a 'record' (Schedule 4 cl 10) and therefore generally falls within GIPA (Conclusion [1]).
Reinforces the established two-step evidential approach: (1) prove systemic public interest effects, then (2) prove the specific effects of disclosing the particular records sought, before balancing (Approach of the Tribunal [7]–[9]).
Clarifies that an agency cannot successfully refuse under s75(2) merely by asserting that providing information would require an audit. The agency must either demonstrate that the proposed method constitutes creation of a new record or show that no alternative forms of disclosure under s72 would suffice (Considerations [2], [62]).
Reaffirms that agencies retain discretion whether to create a new record (O'Grady was cited), but that discretion does not relieve the agency of its evidential burdens when refusing disclosure under s75(2) (Considerations [62]).
After this decision, agencies should expect tribunals to require particularised, document-specific evidence when public interest or new-record arguments are advanced in response to requests for audit metadata.
Key passages with plain-English translation
Tribunal finding on 'record' status
Quote: "I determine that the information responsive to Items 4(b) - (f) ... in the COPS system ... constitutes a 'record' under Schedule 4, clause 10 of the GIPA Act." (Conclusion [1])
Plain English: The Tribunal says the audit logs and metadata in COPS count as documents under GIPA, so they must be considered for release unless a valid legal reason not to disclose is shown.
On s75(2) and reverse audit
Quote: "The Respondent ... did not provide any compelling evidence to establish that a 'reverse audit' was the only way ... or that conducting a 'reverse audit' was otherwise exempted under any other provision ..." (Conclusion [2])
Plain English: The police cannot simply refuse on the ground that producing the information would require running a special audit report, unless they prove that producing it would make a brand new document or that there is no other reasonable way to provide access.
On systemic versus specific proof
Quote: "CI Holgate's unchallenged evidence established, as reasonably expected, the systemic level effects ... However, no evidence was provided ... as to the specific information which would be disclosed ... I am therefore unable to determine the merits ..." (Considerations [5]–[7])
Plain English: While the police convincingly showed that publishing reverse-audit reports generally could harm policing, they did not show what exactly these particular reports would reveal in this case, so the Tribunal could not properly balance the public interest.
On statutory presumption favouring disclosure
Quote: "I have given considerable weight to the general presumption which favours disclosure of government information." (Conclusion [4])
Plain English: The law starts from a point of openness; this is an important factor in deciding whether to release material.
What fact patterns trigger this precedent
Requests for metadata or audit logs from law enforcement IT systems (COPS or equivalent) that show who accessed, modified or viewed a record, when and from where.
Agency refusals that rely on s75(2), alleging that provision of the requested material would necessitate creation of a new record (reverse audit) or is otherwise infeasible.
Agency claims of law-enforcement/public-safety sensitivities (s14 items 1(f), 1(h), 2(b)) asserted at a systemic level but without production of the specific records or particularised evidence about the precise content of the documents sought.
Applications where the applicant is the subject of the records (personal information), triggering s55 consideration of applicant’s motives and relationship to persons in the material.
If those factors arise, this decision demonstrates that tribunals will expect agencies to:
Show the material is within GIPA (if disputed), here it was;
Provide particularised evidence about what the specific documents contain and why disclosure of those documents would cause the asserted harm; and
Consider alternative forms of disclosure (s72) if concerns arise about a particular form of release (e.g., providing redacted extracts rather than full reverse-audit output).
How later courts have treated it
This is a NCAT principal judgment (single-member reasons) that expressly followed and relied on prior Tribunal authorities (Barrett, Denyer, Camilleri, Barrett 2) and declined the Commissioner’s invitation to depart from them where no compelling new evidence was placed before the Tribunal (Considerations [3]). The decision is therefore best read as a reinforcement, within the Tribunal's GIPA jurisprudence, of the two-step systemic/specific evidential approach and the limits of s75(2) as a blanket excuse for refusing to produce audit metadata. Practitioners should expect NCAT to apply the same evidential discipline; courts or appeal panels considering similar issues will weigh the particularised evidence and agency disclosure discretion in a like manner. (The decision itself relied on and cited multiple Tribunal precedents; see The GIPA Act and Access Applications [5]–[9] and Considerations [3]).
Still-open questions
What precisely constitutes "making a new record" in modern policing IT systems? The Tribunal followed prior decisions in treating audit trails as records; but borderline cases, where an agency argues that special, multi-query compilation (a reverse audit) is materially different from extracting stored logs, remain fact-sensitive. Agencies should anticipate that general assertions will not suffice.
What level of particularisation will the Tribunal require to satisfy the 'specific effects' limb for s14 claims? In this decision the absence of the actual contested records prevented assessment; future cases will clarify whether summaries or redacted samples suffice or whether confidential inspection by the Tribunal is required.
How will s72's alternatives to disclosure be deployed in practice to balance transparency and law-enforcement interests? The Tribunal suggested that alternative forms of disclosure (redaction, aggregated data, summaries) can be considered. Practical guidance on acceptable forms and when they must be offered would assist agencies and applicants.
Interaction with external processes: where other courts (e.g. criminal or family courts) or subpoenas exist, how does the Tribunal's balancing account for parallel judicial processes? The decision notes that some materials are provided in other forums (e.g. subpoenas), but further guidance on interplay and prioritisation would be useful.
The decision leaves the Items 4(b)–(f) remitted to the Commissioner for further decision; appellate courts might be asked to settle the precise limits of s75(2) in the context of reverse audits. The ultimate contours of that discretion, especially in environments with large, relational databases, remain to be authoritatively delineated.
Practical takeaway: agencies must particularise their s75(2) and s14 claims, consider alternative disclosure forms under s72, and remember that the statutory presumption in favour of disclosure is a weighty factor in close cases.
Judgment (15 paragraphs)
[1]
REASONS FOR DECISION
This is an application for an administrative review of a decision by the Respondent on an access to government information application under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act").
On 24 September 2019 the Tribunal ordered, under s64 (1) (a) Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), that the publication of the names of the Applicant, the Applicant's daughter, the Applicant's son and the Applicant's ex-spouse is prohibited. The Applicant is therefore referred to as "DYD" in these proceedings.
[2]
Background
On 30 June 2019 DYD ("Applicant") made an application pursuant to s41 GIPA Act to access government information held by the Respondent responsive to the following ("30 June Application"):
"1. Information concerning my police complaints to Eastern Suburbs Command, including internal correspondence relating to those complaints, and drafts and final version of written correspondence (both internal and external communications), together with any notes (including handwritten notes), concerning the police complaints.
2. Information that was reviewed, considered or contemplated by Police in relation to my police complaints and/or responding (internally and externally), to those complaints.
3. For each of myself, my daughter [NOT FOR PUBLICATION], and my son [NOT FOR PUBLICATION], information relating to [NOT FOR PUBLICATION], [NOT FOR PUBLICATION], [NOT FOR PUBLICATION] or [NOT FOR PUBLICATION].
4. For each of myself, my daughter [NOT FOR PUBLICATION], and my son, [NOT FOR PUBLICATION], in relation to COPS information that pertains to each of us over the last three (3) years:
a. Date and time each COPS event was first created and details of the person who created the event (including their name, job title, role, location and branch of the NSW Police force);
b. Date and time each COPS event was updated, modified, amended, changed, altered, edited or deleted ("Modification");
c. Details of the person who undertook each Modification (including their name, job title, role, location and branch of the NSW Police force);
d. Reason(s) for each Modification;
e. Information the Modification pertains too; and
f. Date and time each COPS event has been viewed and details of the person who viewed it (including their name, job title, role, location and branch of the NSW Police force); [collectively items 4(b) - (f) above are referred to in these reasons for decision as "Items 4(b) - (f) of 30 June Application"]
5. For each of my GIPA access applications on 9 October 2018, and 22 January 2019, information relating to the consideration, review, determination and response to each of those GIPA access applications." [with subsequent corrections and amendments included]
On 14 August 2019 the Applicant lodged an application with the Tribunal seeking a review of the deemed decision of the Respondent under s63 (1) GIPA Act in relation to the 30 June Application in the Respondent's "Notice of Decision - Deemed Refusal of Application" dated 30 July 2019.
On 24 September 2019 the Tribunal ordered, under s108 (1) GIPA Act, that the Respondent decide the 30 June Application and provide the Applicant and the Tribunal with a copy of its decision.
On 17 October 2019 the Commissioner of Police, New South Wales Police Force ("Respondent") notified its decision on the 30 June Application to the Applicant ("17 October Decision") and provided such to the Tribunal. The Respondent determined to release some of the information that was identified as within the scope of the 30 June Application and to withhold other information in part or in full.
On 12 November 2019 the Tribunal noted that the 17 October Decision was the Respondent's decision which is the subject of the review by the Tribunal.
The information remaining in contention as at the conclusion of the Tribunal hearing on 17 February 2020 ("17 February Hearing") relates to the documents listed in the Amended Schedule B attached to the Respondent's Submissions filed on 20 January 2020 and the Amended Schedule C submitted by the Respondent during the 17 February Hearing.
[3]
Jurisdiction
The 17 October Decision under review is a reviewable decision in accordance with s80 (d) GIPA Act. The Tribunal obtains its jurisdiction to review the 17 October Decision under s100 GIPA Act.
[4]
The GIPA Act and Access Applictions
The object of the GIPA Act, stated in s3 (1) GIPA Act includes to:
"open government information [up] to the public by:
(a) …
(b) giving members of the public an enforceable right to access government information; and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure." [emphasis added]
The intention of Parliament stated in s3(2) GIPA Act is:
"(a) that this Act be interpreted and applied so as to further the object of the Act, and
(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information."
The GIPA Act provides that there is a presumption in favour of disclosure of government information, unless there is an overriding public interest against such disclosure (s5 GIPA Act).
The person who makes an application to access government information (i.e. the Applicant in this case) has a legally enforceable right to be provided with such access, unless there is an overriding public interest against disclosure of the information (s9 GIPA Act).
Agency decisions (i.e. the Respondent's 17 October Decision) must be made in conformity with s58 GIPA Act and a notice of a refusal decision and reasons are to be (and, in this case, the 17 October Decision was) given under s61 GIPA Act.
The Respondent can either delete or withhold information in full or in part (s74 GIPA Act) on the basis that the deleted or withheld information is not relevant, is subject to either a conclusive presumption of an overriding public interest against disclosure or an overriding public interest against disclosure on the basis of one or more of the Items listed in the Table in s14 GIPA Act or because the Respondent is otherwise permitted under a general administrative provision of the GIPA Act not to disclose the information sought.
The Respondent has not submitted that any of the information in contention is subject to any s14 (1) and Schedule 1 GIPA Act conclusive presumption of an overriding public interest against disclosure. Thus the Respondent, in these proceedings, has the burden of establishing to the Tribunal that the decision to disclose or withhold the information, in full or in part, is justified (s105 (1) GIPA Act): Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 ("Barrett 2015") at [40].
[5]
Approach of the Tribunal
The Tribunal is required to determine what the correct and preferable decision is having regard to the material before it, including any relevant factual material and applicable written or unwritten law; s63 (1) Administrative Decisions Review Act 1997 ("ADR Act"): Barrett 2015 at [21]. The Tribunal makes its own decision in place of the Respondent's decision, without any presumption that the Respondent's decision is correct.
Contrary to the Applicant's submissions, the Tribunal is not constrained to have regard only to the material before the Respondent when making its decision but may have regard to any relevant material before the Tribunal at the time of the Tribunal's review: Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2003] NSWCAT 257 at [45] and O'Grady v Sutherland Shine Council [2020] NSWCATAD 50 ("O'Grady") at [17].
Where there is no conclusive presumption of an overriding public interest against disclosure (i.e. as per s14 (1) and Schedule 1 GIPA Act), as is the case in these proceedings, the process for deciding whether to grant access to the relevant information (in part or in full) is to identify the applicable public interest factors in favour of granting access, then to identify the applicable public interest factors against disclosure which, in the circumstances of these proceedings, can only be from those items set out in the Table in s14 GIPA Act: Tedder v Commissioner of Police, NSW Police Force [2017] NSWCATAD 226 ("Tedder") at [20]. A determination must then be made as to where the balance lies.
The GIPA Act states, as a factor for consideration in the balancing exercise, the general public interest in favour of the disclosure of government information (s12 GIPA Act). Also, some non-exhaustive examples of other public interest considerations in favour of disclosure are referred to in the notes to s12 (2) GIPA Act. In Leydon v Commissioner of Police [2019] NSWCATAD 267 ("Leydon") at [47] the Tribunal notes that these notes/examples are regularly relied on by parties in GIPA proceedings and s12 (2) provides that "there is no limit as to what disclosure considerations can be taken into account".
Under s 55 of the GIPA Act the personal factors of the Applicant, including identity and motives, can also be taken into account in the context of considering whether there is an overriding public interest against the disclosure of information, as facts both in favour of and against providing the Applicant with access to information.
[6]
The Hearing
The matter was heard on 17 February 2020. The Applicant represented himself while the Respondent had legal representation.
At the 17 February Hearing the Applicant accepted (i) delivery from the Respondent of a number of documents containing certain information requested by the Applicant and (ii) that Item 5 of the 30 June Application (see paragraph 3 above) was limited to the period up to the date the Applicant applied to the Tribunal for administrative review of the Respondent's decision on the Applicant's 9 October 2018 application (i.e. 26 April 2019) and the Applicant acknowledged that this information had been provided to him.
I determined to deal with the consideration of some of the information (i.e. that submitted by the Respondent to the Tribunal as confidential in confidential bundles) by way of a short confidential part of the hearing, for which the Applicant left the room, in accordance with s107 GIPA Act. There is nothing in the confidential part of the 17 February Hearing or submissions that affects my decision as set out in these reasons for decision.
As regards access to information held by the Respondent responsive to Items 4(b)-(f) 30 June Application, the Respondent confirmed its written submissions that it 'refused in full' access to all information responsive to these requests on the basis of s75 (2) (a) and (c) GIPA Act, it had not provided such documents to the Tribunal (even on a confidential basis) and, also, that there was an overriding public interest against disclosure of this information under Items 1(f), (h) and 2(b) of the Table in s14 GIPA Act.
[7]
The Evidence
The Applicant submits at [109-113] of the Applicant's submissions that, in addition to the public interest considerations in favour of disclosure in sections 3, 5 and 12 GIPA Act, his relationship with the other persons included in the information requested and his motives for making the access application (as detailed extensively in his Affidavit) should also be taken into account in favour of disclosing the information requested pursuant to s55 (2) GIPA Act.
Further, the Applicant submits at [114] of the Applicant's submissions that examples (a), (d) and (e) of s12 (2) GIPA Act also apply as public interest considerations in favour of disclosure as follows:
(a) disclosure of information that could reasonably be expected to promote open discussion of public affairs, enhance Government accountability will contribute to positive and informed debate on issues of public importance in relation to:
• whether to bring a civil or criminal action against a person
• receiving and assessing complaints
• receiving and assessing GIPA access applications
• communicating with the public
• information that may be applicable to a potential malicious prosecution and/or defamation action
• information that is utilised in Family Court proceedings involving the Applicant
(d) information that is personal information of the person to whom it is to be disclosed, namely the disclosure would provide the Applicant's own personal information to him for each of:
• the Interim ADVO
• his complaint(s) to the Respondent and their dealing with it
• personnel of the Respondent accessing his information that is held and/or controlled by the Respondent
• the views and beliefs of the Respondent and its personnel on the Applicant
(e) disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligence, improper or unlawful conduct in relation to:
• the Interim AVDO
• the Respondent's receiving and considering complaints
• personnel of the Respondent accessing the information on the Applicant that is held and/or controlled by the Respondent
• a malicious prosecution and/or defamation action by the Applicant against the Respondent
• information that may have probative value on purpose in the Family Court proceedings involving the Applicant
In his Affidavit the Applicant provides detailed and unchallenged evidence of the history of his interactions, communications and discussions with the police, in particular around his various complaints and GIPA applications and thus his motives for seeking the information requested in the 30 June Application.
[8]
Considerations
Items 4(b) - (f) 30 June Application and s75 GIPA Act: The Respondent submitted that while it "accepts that it holds the information that would be responsive to Items 4(b)-(f) of the 30 June Application in COPS...the Respondent has no obligation to create a new record of that information by conducting a reverse audit": [152] of the Respondent's Submissions [emphasis added]. The Respondent submitted at [147] of the Respondent's submissions that providing access to the Applicant to any information it held responsive to Items 4(b)-(f) 30 June Application required the making of a new record of the information which s75 (2) (a) and (c) GIPA Act does not require it to do.
In its Reply Submissions the Respondent acknowledged that prior Tribunal decisions, including in Barrett v the Commissioner of Police, NSW Police Force [2014] NSWCATAD 32 ("Barrett") and Denyer v the Commissioner of Police, NSW Police Force [2018] NSWCADAT 160 ("Denyer"), are contrary to the Respondent's submissions on the application of s75 GIPA Act to the "reverse audit COPS information" but requested that the Tribunal now depart from these prior decisions.
The Respondent submits that the reasons the Tribunal should now depart from the prior Tribunal decisions (including Barrett and Denyer) are because, at [151] of the Reply Submissions of the Respondent:
"First, the approach taken in Barrett and Denyer conflates the question of whether an agency 'holds' information with the question of whether an agency is being asked to create a 'new record' of the information it holds. It does not follow that, in refusing to create a new record, an agency has not discharged its task of identifying that it holds information. Nor does it follow that, in circumstances where the agency has identified that it holds information, it is not being asked to create a new record of that information."
While I understand the logic of the Respondent's submission noted in paragraph 51 above, apart from supporting the necessary conclusion from CI Holgate's evidence (reproduced at paragraphs 40 and 41 above) that information responsive to Items 4(b) - (f) 30 June Application held by the Respondent in the COPS is a 'record' under clause 10 of Schedule 4 GIPA Act, I do not believe the submission is helpful in the specific circumstances of the present case. In my view the reasoning noted in paragraph 51 above does not assist resolution of the issue in these proceedings, whether in the current circumstances a 'reverse audit' requires the making of a new record and, if so, is such a 'reverse audit' necessary in order (and the only way) to disclose the information held by the Respondent in COPS responsive to Items 4(b) - (f) of the 30 June Application.
[9]
Conclusion
Items 4(b) - (f) 30 June Application and s75 GIPA Act: On all of the evidence before me, and having regard to the submissions of both parties, I determine that the information responsive to Items 4(b) - (f) 30 June Application in the COPS system held by the Respondent constitutes a 'record' under Schedule 4, clause 10 of the GIPA Act.
In these proceedings the Respondent has submitted that it holds information responsive to Items 4(b) - (f) 30 June Application but it did not provide any compelling evidence to establish that a "reverse audit" was the only way the Respondent could disclose any of the relevant information, that a "reverse audit" was the making of a new record of information or that conducting a "reverse audit" was otherwise exempted under any other provision of the GIPA Act.
Items 4(b) - (f) 30 June Application and Items 1 (f), (h) and 2 (b) of the Table in s14 GIPA Act: Given the Tribunal does not have the relevant information responsive to Items 4(b) - (f) 30 June Application held by the Respondent to review, I am unable to assess the merits of the Respondent's decision or submissions with respect to Items 1(f), (h) and 2(b) of the Table in s14 GIPA Act as public interest considerations for the non-disclosure in full of the information sought by the Applicant. In these circumstances I am also unable to apply the obligation imposed on me as a decision maker by s58 GIPA Act to balance the relevant factors in favour and against disclosure in view of the specific information held by the Respondent which is responsive to Items 4(b) - (f) 30 June Application.
Amended Schedules B and C: I have examined the information still in contention (as listed in Amended Schedules B and C), taken into account the evidence of the Respondent and Applicant, in particular as noted above, and I have considered and weighed the public interest factors for and against release of the information in contention. In this process I have given considerable weight to the general presumption which favours disclosure of government information.
CI Holgate's evidence established the systemic effects of the submitted public interest considerations against disclosure for the information partially withheld in pages 42-47, 48-50, 125-126, 127, 128, 138-147, 148-150, 163-164, 324-325, 361-362 noted in the Amended Schedule B and fully withheld in pages 25-27, 28-36, 151, 152-276, 277, 278-282 and 319-320 noted in the Amended Schedule C are reasonably expected.
[10]
Amended Schedule C: Documents for which access has been refused in full: The page numbers listed below in column 1 are the Respondent's page numbers of the information/records of Amended Schedule C (i.e. being the information and records to which access was 'refused in full') that remained in contention as at the end of the 17 February Hearing. Next to each of the Respondent's page numbers, in column 2, I note the Respondent's submitted public interest considerations against disclosure of the information in full and, in column 3, I note my findings as regards that information/page based on the evidence and considerations noted above in these reasons for decision.
Submitted s14 Table public interest grounds against disclosure My findings
Page no.
25 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
26
27 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
28 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
29 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
30 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
31 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
32 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
33 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
34 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
35
36 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
151 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
152 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
153
154 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
155 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
156
157 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
158 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
159 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
160 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
161
162 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
165 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
183 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
[11]
1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
264
272 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
277 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
278 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
279 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
280 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
281
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
282
283 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
284 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
285 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
286 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
287
288 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
289 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
290
291 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
292 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
293 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
294 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
295 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
296 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
297 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
298
299 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
300 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
301 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
302 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
[12]
1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
303
304 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
305 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
306
307 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
308 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
309 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
310 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
311 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
312 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
313 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
314
1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
315
316 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
317 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
319 1 (f), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
1 (f), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose.
320
[13]
Orders
1. That part of the decision dated 17 October 2019 of the Commissioner of Police which relates to Items 4(b) to (f) of the application made by DYD under the Government Information (Public Access) Act 2009 is remitted to the Commissioner of Police for a further decision to be made on the basis that the information in issue is subject to the Government Information (Public Access) Act 2009 and that clauses 1(f), 1(h) and 2(b) of the Table in s 14 of the Government Information (Public Access) Act 2009 are relevant to the decision.
2. The Commissioner of Police must make the decision under Order 1 and give notice of his decision to DYD within 30 days of the date of this order.
3. The Commissioner of Police must release the information which appears beside the word Release in column 3 of the tables in paragraphs 80 and 81 of the decision in this matter within 30 days of the date of this order.
4. The decision dated 17 October 2019 of the Commissioner of Police is otherwise affirmed.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[15]
Amendments
05 May 2020 - Paragraph 3 Names removed, replaced with "[NOT FOR PUBLICATION]".
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 May 2020
Court remitted that part of the Commissioner’s 17 October 2019 decision that related to Items 4(b)–(f) for further consideration on the basis the information is subject to the GIPA Act and items 1(f), 1(h) and 2(b) of the s14 Table are relevant; ordered release of the material identified as 'Release' in the tables in paragraphs 80 and 81 within 30 days; otherwise affirmed the Commissioner’s decision (Orders 1–4).
In paragraphs 80 and 81 of this decision I record the public interest considerations against disclosure, listed in the Table in s 14 of the GIPA Act, on which the Respondent relied in relation to the information in contention and set out in Amended Schedule B.
The GIPA Act also provides, in a number of provisions, that an agency may refuse to provide access for general administrative reasons (i.e. rather than on the basis of the content of the information under Items in the Table in s14 GIPA Act). One of these general administrative reasons arises in these proceedings, in respect of some of the information requested in the 30 June Application that remains in contention. Namely, the Respondent submits that providing access to the information it holds responsive to Items 4(b) - (f) 30 June Application would require the Respondent to make a new record of the information held, which the Respondent has the discretion (and, in this case, chooses) not to do (s75 (2) GIPA Act).
In this case, the Applicant's personal factors can weigh against providing access to the information to the extent they are relevant to Items 2 (b), 3 (a) and (g) of the Table in s14 GIPA Act which have been submitted by the Respondent as applicable overriding public interest factors against disclosure of certain of the information (see column 2 in the tables in paragraphs 81 and 82 below).
As the Appeal Panel in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 ("Camilleri") stated at [24-27], the Tribunal must first assess (before balancing the public considerations for and against disclosure) whether the effect of the claimed public interest considerations against disclosure under the Items in the Table in s14 GIPA Act are established (at a systemic level) and then ask whether the disclosure of the specific information 'could reasonably be expected' to have the specified effect. If so, such are then to be considered in the Tribunal's balancing exercise noted below.
As emphasised in earlier Appeal Panel decisions, Camilleri and Barret 2, at the outset of the weighing process required by s13 GIPA Act, the Respondent's case must be assessed at the systemic level as that is the way the protections given by many of the s14 Table considerations are cast (Commissioner of Police, NSW Police Force v Barrett (No.2) [2016] NSWCATAP 86 ("Barrett 2") at [50]). However, the Respondent does not succeed simply because it establishes the systemic aspect of the case, it must also make out the particular concerns in the instant case: Barrett 2 at [50 and 84] and Camilleri at [26-30].
It is then necessary for the Tribunal to allocate weight to each of the public interest considerations for and against (i.e. those where the claimed effect is reasonably expected) disclosure, followed by a process of weighing in the balance those positive and negative elements for each of the relevant information to reach a decision as to whether or not access should be granted to that information (i.e. in the latter case when the negatives outweigh the positives, access should not be granted): Camilleri at [24-27] and Barrett 2 at [17-22].
The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at [74].
In the 17 October Decision the Respondent states it considered the following public interest considerations in favour of disclosure of the information responsive to the 30 June Application:
• "The Statutory presumption in favour of the disclosure of Government information
• The general right of the public to have access to government information held by the agencies
• The information is personal information of the person to whom it is to be disclosed
• You reported a number of matters involving your children to Police and would be aware of the circumstances. You have also corresponded with various Police Officers relating to the matters and have been provided with some information through a number of avenues including subpoenas, previous GIPA applications and written correspondence with the Police Command and/or other members of the NSW Police Force (NSWPF)."
The various Items in the Table in s14 GIPA Act submitted by the Respondent as applicable to various of the information (as specifically detailed in the tables in paragraphs 80 and 81 below) are:
• Item 1 (d) - prejudice the supply to the agency of confidential information that facilitates the effective exercise of that agency's functions
• Item 1 (f) - prejudice the effective exercise by an agency of the agency's functions
• Item 1 (h) - prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed)
• Item 2 (b) - prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law
• Item 3 (a) - reveal an individual's personal information
• Item 3 (g) - in the case of the disclosure of personal information about a child - the disclosure of that information would not be in the best interests of the child
Chief Inspector Mark Holgate of the NSW Police Force in his Affidavit dated 20 December 2019 ("CI Holgate"), submitted by the Respondent, states in relation to the information relevant to investigation of the Applicant's complaints made to the Eastern Suburbs Command:
"Investigations under Part 8A [of the Police Act 1990 (NSW)] are particularly sensitive and must be treated confidentially". [15]
"…if such information were disclosed under the GIPA Act, this has the potential to prejudice the supply of complaint information and evidence in support of investigations in the future". [18]
"Further, information recorded in misconduct matters contains personal information about individuals who have a valid expectation that their personal information will not be divulged to the public". [19]
"…there needs to be a degree of confidentiality over the manner in which PACs, PDs and PSC investigate complaints about misconduct and the deliberative process involved in handling complaints". [20]
"Accordingly, it is not in the public interest to allow the investigative methodologies of the NSWPF to be undermined by those who use disclosed information to effectively avoid the detection of their misconduct or, in some instances, criminal behaviour". [25]
CI Holgate then proceeds to apply the public interest considerations against disclosure in respect of the specific information redacted or partially withheld in the pages referred to in the Amended Schedule B and most of the information/pages fully withheld as listed in the Amended Schedule C.
As regard the 'routine audits' of the COPS system made by NSW Police, CI Holgate states:
"As a corruption prevention strategy, COPS usage is able to be audited. Random COPS audits are routinely conducted on all members of the NSWPF who have access to the databases." [84]
"This type of audit generates a report detailing each time a particular member of the NSWPF has accessed COPS within the last twelve months." [85]
"Once completed, an audit report conducted to identify particular searches or actions undertaken using COPS would reveal:
(i) the date and time of any searches undertaken;
(ii) the registered number of the member of the NSWPF who conducted the search;
(iii) a person's unique "Central Names Index" number;
(iv) a seven character alpha-numeric program code, which indicates the exact program/function executed to undertake the relevant or perform an action in COPS/for example, was the search undertaken as a charge inquiry or a driver licence inquiry, was a profile generated, etc.);
(v) any actions taken to create a new entry or record within COPS and the nature of any such entry or record created (for example, the creation of an information report);
(vi) from where the inquiry or action was undertaken (for example, from a particular police station, or from a mobile data terminal); and
(vii) the reasons for undertaking an inquiry or taking a particular action within COPS (if any reasons were recorded at the time of access)." [87]
As regards the "reverse audit" which the Respondent submits is necessary in order to provide access to the information the Respondent holds responsive to Items 4(b) - (f) 30 June Application, CI Holgate states:
"The type of audit required to produce the information sought [in response to Items 4(b) - (f) 30 June Application] is different to that described above [at paragraph 41 of these reasons for decision]. It is known as a 'reverse audit'. For such information to be obtained, multiple audits would need to be conducted - that is, an audit on each particular search term or record must be run in COPS to determine who, if any, of the authorised users of COPS have conducted a search on that terms or that records." [91]
"The NSWPF uses the reverse audit process as an investigative tool in complaint investigation and as a method of monitoring and reducing the risks associated with improper and unlawful computer access, including detecting whether there has been a breach of s308H of the Crimes Act 1900. For example, if NSWPF receives a complaint that a particular police officer is suspected of misusing COPS, targeted auditing of that police officer's COPS access could be carried out. A reverse audit report would not usually be created for any purpose other than as part of a complaint investigation." [93]
As regards the effects that could reasonably be expected from the public interest considerations against disclosure of the information (Items 1 (f), (h) and 2 (b) of the Table in s14 GIPA Act) submitted as applicable by the Respondent in respect of a 'reverse audit' report, CI Holgate states:
"A person could become aware that he or she is under investigation by NSWPF from being provided with an audit report and take action to evade police attention…" [97]
"…I am concerned that the information in an audit report would reveal details of confidential law enforcement methodologies and methods of intelligence and evidence collection." [98]
"…the release of an audit report would compromise the supply of confidential information to NSWPF by identifying informers. An applicant could seek an audit report for specific days or times that their details were accessed by an officer at the relevant time and could conclude that conduct only known to a particular person or persons was reported by such person(s) to NSWPF." [99]
"…Similarly, if the public were aware that a person could be given information that may lead to them being identified as an informant, I believe that members of the public would be reluctant or refuse to assist police in future investigations…" [100]
"…I think that the release of audit reports could lead to threats to the lives and wellbeing of officers of NSWPF. If a person becomes aware that their conduct has come to the attention of a particular officer, or unit within NSWPF, this could lead to officers being targeted…" [101]
In his Affidavit at [120] the Applicant's notes that a representative of the Respondent emailed him on or about 2 July 2019 and, in relation to the information responsive to Items 4(b) - (f) 30 June Application, the Respondent's representative noted:
"The scope of this request may potentially capture a large amount of information. If the volume of work responding to this request is considered an unreasonable diversion of resources, additional charges may be incurred."
Detective Sergeant Jason Ferns of the NSW Police Force in his Affidavit dated 19 December 2019 ("DS Ferns"), submitted by the Respondent, states in relation to the release of information relating to an abuse allegation made by the Applicant's child against a third person:
"There is no general practice at the NSWPF for information provided by a child in an interview to be provided to that child's parent or guardian. Release of such information in any circumstances would be assessed on a case-by-case basis, such as where the release is required by a court order." [24]
DS Ferns then proceeds to apply the public interest considerations against disclosure in respect of the redacted information on each of pages 139-146 and 148-150 listed in the Amended Schedule B and the fully withheld information for each of the pages 28-36 listed in the Amended Schedule C.
As regards pages 28-36, DS Ferns note that the information on these pages would disclose police methodology and the nature of the investigations that are conducted in the background when a report is made to the police of suspected criminal activity at [27]:
"If such information were made publicly known, a person could use that information to come up with ways to avoid police attention or detection."
DS Ferns states, in relation to the public interest against disclosure of the information in pages 28-36 related to a domestic violence complaint, at [28]:
"…if information provided by a complainant of domestic violence to police, in confidence, were disclosed to the alleged offender, outside the context of criminal proceedings, the complainant would most probably lose confidence in the NSWPF."
As regards pages 139-146, at [37] DS Ferns states in relation to an overview and summary of the information gathered in the course of investigating one of the Applicant's complaints:
"If the investigative processes of the NSWPF or the nature of the information considered in investigating complaints made under Pt.8A of the Police Act 1990 were made known, police could take steps to cover his or her tracks or destroy evidence to avoid exposure or, a person could maliciously hone the nature of their complaints about certain police officers."
Secondly, at [153] of the Reply Submissions of the Respondent:
"…the Respondent submits that characterising a reverse audit as merely the searching and printing of COPS information (see Barrett at [23]) and therefore not a production of a new record for the purposes of s75 (2) (c) of the GIPA Act is not correct."
In Denyer the Tribunal concluded, in finding that the audit trails created in COPS when information in COPS is searched, accessed, viewed, entered and/or modified are a 'record' under clause 10 of Schedule 4 GIPA Act:
"Notwithstanding the lack of detail about the technical parameters of the COPS system, it is well established on the public record that significant aspects of the system create an audit trail when information is searched, accessed, viewed and modified/entered." [71]
"In my view such information lying dormant in the COPS system concerning auditable information would, for the purposes of clause 10 of Schedule 4 constitute a record capable of being produced as information under the GIPA Act. I therefore find that the information (concerning access of the COPS system) is capable of being produced under the GIPA Act". [74]
In Barrett the Tribunal concluded at [23], confirming the Office of the Information Commissioner's findings on this issue:
"I agree with the view of the [Office of the Information Commissioner] that the need to compile this information by conducting a search or printing an audit report does not constitute the creation of a new document for the purposes of s75 of the GIPA Act".
Although in relation to considering s58 (1) (f) GIPA Act the Appeal Panel in Barrett 2, on the basis that information held in the COPS database was a 'record' under clause 10 of Schedule 4 GIPA Act, noted at [88]:
"In our view, Parliament well understood when it passed the GIPA Act that records held in the COPS database…were to be considered on the usual basis, i.e. by reference to the s13 balancing process."
Section 72 GIPA Act provides that government information in response to an access application may be provided in any of a number of different ways: see Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 at [26-27]. That is, while a decision about how access is to be provided is reviewable, the Respondent is not limited to a "reverse audit" or any other particular form of disclosure in order to provide the Applicant with access to the information responsive to Items 4(b) - (f) 30 June Application, especially in circumstances where the Applicant has not requested a specific form for disclosure of the information. As noted in Tedder at [22], once an overriding public interest against disclosure is found (for the Items of the Table in s14 GIPA Act noted in paragraph 50 below), s72 (2) (d) GIPA Act makes provision for the Respondent to consider disclosing the information in another form if that would overcome its concerns about releasing the information in the form of, in this case, a "reverse audit".
I adopt the reasoning and conclusion of the Tribunal in O'Grady (in particular see [48] and [52]) that, where it is established that a 'new record' is required to be brought into existence to satisfy a GIPA application, the agency has a discretion as to whether or not to facilitate access to the information by making that new record. However, I do not find the evidence submitted by the Respondent establishes either that a "reverse audit" is the only means of providing access to the relevant information in this case or is, in these circumstances, the making of a new record of the information held by the Respondent.
While I am not bound to follow prior single member Tribunal decisions, in the absence of any compelling evidence or clear reasons presented to me to depart from them, see MG v Department of Education and Training [2004] NSWADT 137 at [34], I find the reasoning of previous Tribunal decisions (including Denyer and Barrett) on these issues compelling.
Items 4(b) - (f) 30 June Application and Items 1 (f), (h) and 2 (b) of the Table in s14 GIPA Act: The Respondent also submits that the information it holds responsive to Items 4(b) - (f) 30 June Application is subject to overriding reasons of public interest not to disclose the information pursuant to Items 1(f), (h) and 2(b) of the Table in s14 GIPA Act.
CI Holgate's unchallenged evidence established, as reasonably expected, the systemic level effects of the release of the information that may be generally included in a 'reverse audit report'. However, no evidence was provided by the Respondent as to the specific information which would be disclosed by a reverse audit report in this case and whether the release of that information could reasonably expected to have the specified effects.
The Respondent neither detailed the relevant information (or records containing the information) it holds responsive to Items 4(b)-(f) 30 June Application in the Amended Schedule C nor provided the relevant records containing such information to the Tribunal for review (even on a confidential basis).
I am therefore unable to determine the merits of the Respondent's decision or its submissions in respect of the overriding public interest considerations against disclosure of the information it holds responsive to Items 4(b) - (f) 30 June Application under the relevant submitted applicable Items in the Table in s14 GIPA Act.
Amended Schedules B and C: In addition to the presumption in s5 GIPA Act and the public interest considerations raised by the Respondent in the 17 October Decision (see paragraph 36 above) and the Applicant in his submissions (see paragraph 34 above), as part of the balancing exercise I have also considered the following public interest considerations in favour of disclosure:
1. an individual has a right to know about adverse findings against him or her to check the accuracy of those findings: Department of Community Services v Latham [2000] NSWADTAP 21; and
2. the public interest in enhancing the transparency of investigations of complaints under Part 8A of the Police Act 1990: Applicants v Commissioner of Police (NSW) [2015] NSWCATAD 22 at [118-119].
If the effects of the submitted Items of the Table in s14 GIPA Act referred to in paragraph 38 above can be established by the Respondent as reasonably expected to have the submitted effects systemically and for the relevant information then, for each Item so established for that information, it becomes a public interest consideration against the disclosure of that information which must be balanced against the public interest considerations in favour of disclosure of that information (see paragraphs 25-28 above).
In considering whether the effects submitted by the Respondent with regard to the Items of the Table in s14 GIPA Act "could reasonably be expected" I have followed the analysis in Barrett 2 at [41]:
"…the test to be applied is an objective one, approached from the view point of a reasonable decision-maker, and that is the adverse effect asserted must be one that is more than a mere possibility, risk or chance…"
In considering whether the specific information to be disclosed in each case could reasonably have the specified effect, in particular in respect of Items 1 (d), (f), (h) and 3 (a) of the Table in s14 GIPA Act submitted by the Respondent to apply, I have followed the analysis in Leydon at [33-34] that:
"…the Tribunal should not just look at the issue in isolation, but rather examine the issue to determine whether the agency's ability in future would be impaired."
"In deciding that matter the Tribunal must ask itself whether the disclosure of the information would have the relevant effect."
Without any compelling evidence presented to the Tribunal as to why the disclosure of the information is not in the best interests of this child, in circumstances where the Applicant parent is not the alleged abuser, I have given little weight to Item 3 (g) of the Table in s14 GIPA Act as a public interest consideration against disclosure in respect of the redacted information on pages 148-150, as noted in the table in paragraph 80 below.
Of the pages referred to in paragraph 73 above, CI Holgate's evidence also established that, for all but pages 324 and 325, the release of the specific information in those pages is also reasonably expected to have the specified effects.
As regards the partially withheld information in pages 139-146 and 148-150 noted in the Amended Schedule B, I found that Fern's evidence established both the submitted systemic and specific effects are to be reasonably expected.
The Respondent's evidence did not establish that the specified effects of the release of the information redacted on pages 324-325 of the Amended Schedule B for the submitted public interest considerations against disclosure (Items 1 (d), (f), (h) and 3 (a) of the Table in s14 GIPA Act) could be reasonably expected.
In balancing the public interest considerations for and against disclosure of the information partially withheld in pages 42, 46-48, 138-146,148 and some of the redacted information on page 149 as noted in the table in paragraph 80 below and having regard to the weighing exercise of the competing public interest considerations against disclosure, balanced with the public interest considerations in favour of disclosure, I see nothing contrary to the principles set out in s15 GIPA Act which prevents the disclosure of the information in the manner set out in the table in paragraph 80 below.
In balancing the public interest considerations for and against disclosure of the information withheld in full in pages 30, 158-159, 162, 165, 183, 264, 272, 295-305 and 319-320 as noted in the table in paragraph 81 below and having regard to the weighing exercise of the competing public interest considerations against disclosure, balanced with the public interest considerations in favour of disclosure, I see nothing contrary to the principles set out in s15 GIPA Act which prevents the disclosure of the information in the manner set out in the table in paragraph 81 below.
In balancing the public interest considerations for and against disclosure of the partially and fully withheld information in the other pages noted in the tables in paragraphs 80 and 81 below (ie those pages not referred to in paragraphs 76, 77 and 78 above) and having regard to the weighing exercise of the competing public interest considerations against disclosure, balanced with the public interest considerations in favour of disclosure, I find that there is an overriding public interest against the disclosure of this information.
Amended Schedule B: Documents for which access has been granted in part: The page numbers listed below in column 1 are the Respondent's page numbers of the redacted information/records listed in Amended Schedule B that remained in contention as at the end of the 17 February Hearing. Next to each of the Respondent's page numbers, in column 2, I note the applicable public interest considerations against disclosure submitted by the Respondent as applicable and, in column 3, I note my findings as regards the redacted information on that page based on the evidence and considerations noted above in these reasons for decision.
Page no. Submitted s14 Table public interest grounds against disclosure My findings
42 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
43 1 (d), (f), (h), 3 (a) No redactions as released
44 1 (d), (f), (h), 3 (a) No redactions as released
45 1 (d), (f), (h), 3 (a) No redactions as released
46 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
47 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
48 1 (f), (h) Release without the redaction to the paragraph under the heading "Holdings reviewed/information gathered…" otherwise Withhold. For the information to be released the submitted effects were not sufficiently established as reasonably expected. For the information to be withheld the effects were reasonably established and, on balance, the public interest considerations against disclosure outweigh the public interest considerations to disclose.
1 (f), (h) Withhold. The submitted effects were established as reasonably expected and, on balance, the public interest considerations against disclosure outweigh the public interest considerations to disclose.
49
50 1 (f), (h) No redactions as released
1 (f), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
125
127 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (f), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
128
138 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
139 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
140 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
141 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
142
143 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
144 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
145 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
146 1 (d), (f), (h), 3 (a) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
148 1 (d), (f), (h), 3 (a), (g) Release: The public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information.
1 (d), (f), (h), 3 (a), (g) Withhold the redaction to the last entry for "21/09/18" (the third entry from the bottom of the page), otherwise Release. For the 'release' information the public interest considerations against disclosure, on balance, do not outweigh the public interest considerations to disclose the information. For the 'withhold' information the submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
149
150 1 (d), (f), (h), 3 (a), (g) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
163 1 (f), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
1 (f), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
164
324 1 (f), (h), 3 (a) Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances.
1 (f), (h), 3 (a) Release: The submitted effects were not sufficiently established as reasonably expected in the circumstances.
325
361 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.
362 1 (d), (f), (h), 3 (a) Withhold: The submitted effects were established as reasonably expected and, on balance, an overriding public interest against disclosure was established.