GKD v Commissioner Of Police, NSW Police Force

Applicable legislation

1. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against its disclosure: GIPA Act, section 9(1)).
2. "Government information" is defined to mean "information contained in a record held by an agency": GIPA Act, section 4(1). The obligation of an agency to provide access to government information is limited to information held by the agency when the application is received, and the agency must undertake reasonable searches for the information: GIPA Act, section 53(1) and (2). If the information is not held by the agency, the agency may make a decision to that effect: GIPA Act, section 58(1)(b).
3. It is implicit in these provisions that the "information" for which a person may apply is information which already exists; the GIPA Act does not contemplate that the agency is required to, in effect, answer questions about its decisions or functions when responding to an access application: Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288 at paragraph [33].
4. Under section 80(e) of the GIPA Act, the Tribunal has jurisdiction to review a decision by an agency that it does not hold the information requested. Section 80 provides: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part - … (e) a decision that government information is not held by the agency, ...
5. That section also confers jurisdiction on the Tribunal to review an "implicit decision" that no further information is held, beyond that which is dealt with in a decision: Amos v Central Coast Council [2018] NSWCATAD 101 at paragraphs [30] - [33].
6. In Webb v Port Stephens Council [2018] NSWCATAP 224, the Appeal Panel stated at paragraphs [36] - [37]: 36. Where there is relevant and credible material presented to support the decision, in practical terms, a burden will fall on the challenger to try and overcome or undermine the case from the agency. In our view, this was how the Tribunal applied the passage from the Cianfranco case. 37. The Tribunal in [Amos v Central Coast Council [2018] NSWCATAD 101], helpfully, explained the correct approach in these terms (at [39]): The burden of establishing that the implicit decision that the Council does not hold information is justified lies on the Council: GIPA Act, s 105(1). The Council submitted that the onus is on the applicant to establish that the additional information exists. That proposition is not supported by the legislative scheme, nor by authority. In Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 at [69], a case dealing with the Freedom of Information Act, Judge O'Connor remarked that an applicant "must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists [that is, that there is further material]." These remarks were applied in the context of the GIPA Act in Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [22]. These decisions suggest that the applicant has what is sometimes referred to as a "practical onus" to establish the existence, or possible existence, of further information. However, these comments should not be taken to detract from the respondent's legal onus to justify its decision under s 105 of the GIPA Act.
7. As noted, the Applicant contends that the Respondent should hold further information that falls within the scope of her request and expressed concerns as to the adequacy of the search undertaken by the agency.
8. In discharging the Council's burden of proof requiring that the Tribunal be satisfied that the information is "not held", the reasonableness of the search undertaken operates as a 'plainly relevant factor'. In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 ("Wojciechowska") the Appeal Panel stated at paragraphs [40] - [44]: 40. In a recent decision, the Appeal Panel in Klaric v Commissioner of Police [2020] NSWCATAP 153 considered the scope of the Tribunal's power when reviewing an "information not held" decision, stating at [33]: The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has power to review a decision that information is not held, but it has no power to review the sufficiency of an agency's search. 41. I agree with that comment. Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". I do not understand the Appeal Panel in Klaric to suggest otherwise. 42. The role of the Tribunal in reviewing an "information not held" decision (ss 58(1)(b), 80(e)) is "to decide what the correct and preferable decision is having regard to the material then before it": s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The "burden of establishing that the decision is justified lies on the agency": s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision. 43. In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act. 44. 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.
9. What constitutes a reasonable search will vary with the circumstances of each matter and depends upon the agency to whom the access application is made and on what terms it is made: McNeill v Clarence Valley Council [2024] NSWCATAD 382 at paragraph [54].
10. Section 53(1) limits the agency's obligation to respond to a request for information held by it at the time of the access request. The obligation does not extend to information once held by the agency, but which is no longer held in the primary systems of the agency: Robinson v Commissioner of Police [2014] NSWCATAP 73.
11. The Tribunal's task is to determine the correct and preferable decision at the time of the decision. If there are reasonable grounds to believe that the agency holds more information than it has identified, the correct and preferable decision will not be to affirm the agency's decision that it does not hold the information. As Senior Member Lucy noted in Amos v Central Coast Council [2018] NSWCATAD 101, this may be the case even if the agency's searches appear to have been reasonable at the time they were conducted.

Issue for Determination

1. The Tribunal's task is to determine the correct and preferable decision. The parties are in general agreement that this requires the Tribunal to determine whether the Respondent has complied with its obligation under section 53 of the GIPA Act to conduct reasonable searches for information that falls within the scope of the Applicant's request and whether the agency holds further information that falls within the scope of the request. If the evidence establishes that further information is held, the issue will arise with respect to whether that information should be disclosed.

The Respondent's case.

1. The Respondent maintains that the decision under review is the correct and preferable decision. As noted, the burden is on the agency to prove that it does not hold further information that falls within the scope of the request.
2. The Respondent relies on the affidavit of Ms Donna Russell dated 16 July 2024. Ms Russell is Acting Executive Officer - Business Administration for the Respondent's Police Transport & Public Safety Command. She was previously responsible for assisting with requests made under the GIPA Act and trying to locate any information requested in those applications. In her affidavit she provided details in relation to the initial searches undertaken to locate any information requested in the Applicant's access application. Ms Russell also attended the hearing and gave evidence.
3. Ms Russell's evidence is that she conducted searches on the Applicant's names but did not conduct a search on the Applicant's registration number. The searches identified information that falls within the scope of the request. The Applicant was not satisfied with that determination and asserted that the Respondent should hold additional information that falls within the scope of the request.
4. The Respondent notes that on 13 August 2024 the Tribunal remitted the access application for reconsideration. The Respondent was to undertake further searches for the Applicant's injury management file by searching its RMS. This is in addition to the searches discussed in Ms Russell's affidavit.
5. With respect to the further searches, the Respondent relies on the affidavit of Ms Katie Cooper affirmed on 6 September 2024. Ms Cooper is employed as Corporate Records Manager within the Respondent's Technology and Communications Services Command. She is responsible for the management and coordination of the day-to-day functions of the Corporate Records team and routinely uses and has have full, unrestricted access to the RMS.
6. Ms Cooper's evidence is that:

• On 14 August 2024, she received a copy of the Tribunal's order that remitted the matter for reconsideration to enable further searches for the information sought by the Applicant.
• She conducted searches of the RMS on 22 August 2024 and 4 September 2024 to identify whether the Respondent holds any further information that falls within the scope of the Applicant's access application. She conducted a number of different searches of the system.

1. In her affidavit Ms Cooper provided detailed evidence of the searches that she undertook and identified a number of documents that she located as a result of the searches.
2. Based on her experience, she considered that a search of the Applicant's registration number would be the most accurate and concise way to identify any information within the scope of the access application. This is because most of the Applicant's personal files would include her registration number in the record name.
3. The searches that she undertook were:

• a search by 'Any Word' for 'Records' using the Applicant's registration number as the search term. This search revealed 89 records. Some of the results related specifically to the Applicant whilst some related to unrelated third parties.
• a search by 'Any Word' for 'Records' using the Applicant's former name. This search revealed 24,163 records.
• a search by 'Any Word' for 'Records' using the Applicant's surname name. This search revealed 36,304 records.
• a search by 'Any Word' for 'Records' using the Applicant's full name. This search revealed 148 records.
• a search by 'Any Word' for 'Records' using the Applicant's former full name. This search revealed 192 records.

1. Ms Cooper attempted to narrow the searches by matching personnel related information and removing information pertaining to case files and offence-based material.
2. She reviewed the records that were identified and identified three results as being potentially relevant to the information requested. On reviewing those records, she found that the records identified by her searches were the same as those identified by Ms Donna Russell in April 2024.
3. The Respondent contends that the totality of the evidence before the Tribunal establishes that it has conducted extensive searches to identify information within the scope of the access application. The searches located the information sought by the Applicant, and this was provided to her. The Applicant has been given her injury management file. In contrast, the Respondent submits that the Applicant has not demonstrated that there are reasonable grounds for believing that further information falling within the scope of the application exists but has not been supplied.
4. Section 53(2) of the GIPA Act requires the Respondent to conduct reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The Respondent submits that it has exceeded its obligation under section 53(2) of the GIPA Act.
5. The Respondent contends that there is no proper basis to consider that the agency holds any additional information that falls within the scope of the access application. In the circumstances, the Respondent submits that the Tribunal ought to be satisfied that the Respondent does not hold any further information responsive to the access application that has not already been identified.
6. The Respondent maintains that the appropriate order is for the decision under review to be affirmed.

The Applicant's case.

1. The Applicant provided a statement dated 30 July 2024 and written submissions. Following the further searches undertaken by Ms Cooper, the Applicant confirmed that she wished to proceed with the application before the Tribunal. She also confirmed that she has no further evidence or submissions to submit.
2. In her statement, the Applicant set out her history with the NSW Police Force. After about 10 years in the service, she commenced sick leave as she was suffering from stress due to the work she was undertaking and the workload. Her General Practitioner prescribed medication and referred her to a psychologist. The Applicant subsequently met with a psychiatrist and was diagnosed with Post Traumatic Stress Disorder ("PTSD") and a Major Depressive Disorder. She contends that a Hurt-On-Duty (HOD) record should be recorded in her Injury Management File.
3. Sometime later she met with Doctor Michael Robertson who provided a report to the Respondent stating that the Applicant was suffering from PTSD and co-morbid Major Depressive Disorder. She was medically discharged.
4. In July 2023 she submitted a request to access her Personnel File and she also submitted an access application under the GIPA Act. In August 2023 she was advised that she could access all medical documents and injury management files free of charge without any redactions, by means other than GIPA, and she was provided with a document. She was told that all the requested documents were available except for the subpoena. In September 2023 she received a Notice of Decision regarding her GIPA application.
5. As noted above, she submitted a request to the IPC who recommended the agency reconsider its decision. That recommendation ultimately lead to the decision that is under review.
6. The Applicant contends that further information would be held by the Respondent's Workforce Safety Command.
7. The Applicant submits that she has provided an identifiable and plausible basis to demonstrate there is further material falling within the scope of her access application that has not been identified. She submitted that the Tribunal ought to be satisfied that the Respondent's does hold further information that falls within the scope of her access application.

Discussion.

1. The Tribunal's role is to determine the correct and preferable decision on the basis of the material before it. The burden is on the Respondent to prove that the correct and preferable decision is that it does not hold any further information falling within the scope of the Applicant's access application. The reasonableness of the searches that were undertaken to identify the requested information is a relevant factor in determining the correct and preferable decision: Wojciechowska at paragraphs [41].
2. The Applicant disputed that the Respondent conducted reasonable searches. As set out above, the Appeal Panel in Wojciechowska provided guidance in relation to the role of the Tribunal and the application of sections 53 and 58(1)(b) of the GIPA Act.
3. In this matter, the Respondent has had two opportunities to undertake further searches since its original decision. The evidence of Ms Cooper explains the approach taken by the Respondent most recently. There is no basis on which that evidence should not be accepted.
4. It is apparent from Ms Cooper's evidence that the searches were thorough and included searches based on the Applicant's registration number as the Applicant suggested. Those searches did not identify any additional information as falling within the scope of the access application but confirmed that the previous search had located the same information.
5. Section 53(2) of the GIPA Act required the Respondent to undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. In the circumstances I am satisfied that the Respondent has undertaken searches that satisfy its obligation under section 53(2) of the GIPA Act.
6. In my view, it is unlikely that further searches would locate any additional information falling within the scope of the Applicant's access application.
7. I am satisfied that the Respondent does not hold any information responsive to the access application that has not already been identified and which has been the subject of a determination.
8. It follows that the decision under review should be affirmed.

Order 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 January 2025