Klaric v Commissioner of Police - [2020] NSWCATAP 153 - NSWCATAP 2020 case summary — Zoe

NSWNSWCATAP

Klaric v Commissioner of Police

[2020] NSWCATAP 153

NCAT Appeal Panel|2020-06-08

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2020-06-08

Catchwords

(2000) 205 CLR Isbester v Knox City Council [2015] HCA 20

Source

Original judgment source is linked above.

Catchwords

(2000) 205 CLR Isbester v Knox City Council [2015] HCA 20

Judgment (24 paragraphs)

[1]

Overview

Mr Klaric applied to the Commissioner of Police, NSW Police Force for access to information under the Government Information (Public Access) Act 2009 (GIPA Act). He asked for the following information: ...all information on police records from 1/8/2011, including the inciden[t] on 1/8/2011 and especially the additional information from officers log books as described on attachment 1. Also provide the information that is contained on me that police obtain over their vehicle information system.
Mr Klaric specified the date, time and location of specific incidents between him and police officers. He sought access to the log book records or other notes written by various officers in relation to each incident. He clarified that he was seeking 27 items of information.
The Commissioner provided some information, redacted other information on public interest grounds and decided that it would not deal with his application to the extent that it overlapped with a previous application. Mr Klaric applied to the Tribunal for a review of those decisions. After two hearings, including sessions where Mr Klaric and the public were excluded, the Tribunal affirmed the Commissioner's decisions. Mr Klaric has appealed from the Tribunal's decision to the Appeal Panel.
There is a 10-year history of interactions between Mr Klaric and police. He has made many complaints alleging police misconduct. In his submissions Mr Klaric gives information about complaints and legal proceedings against police. We understand that Mr Klaric is attempting to provide some context to his appeal, but unless that information is directly relevant to an issue we need to determine on appeal, we have not taken it into account. For the reasons we give below, we have refused permission for Mr Klaric to appeal on questions other than questions of law and have dismissed the appeal.

[2]

Tribunal's decision - the issues and the orders

The Tribunal identified the decision under review as the Commissioner's decision of 16 August 2018, as supplemented by the decision of 4 June 2019. The Tribunal then identified the issues, in general terms, as being whether the Commissioner: (a) holds the information sought by Mr Klaric; (b) can refuse to deal with aspects of the access application because he has already decided a previous application (s. 60(1)(b) GIPA Act); and (c) can refuse access to some information on the basis that there are public interest considerations against disclosure and, in particular, whether there is an overriding public interest against disclosure in circumstances where it could reasonably be expected disclosure would: (i) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (s 14 Table, cl 1(d)); (ii) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (s 14 Table, cl 1(e)); (iii) prejudice the effective exercise by the agency of the agency's functions (s 14 Table, cl 1(f)); (iv) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence (s 14 Table, cl 1(g)); (v) 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) (s 14 Table, cl 1(h)); (vi) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (s 14 Table, cl 2(b)); and (vii) reveal an individual's personal information (s 14 Table cl 3(a)).
The Tribunal made the following orders: (1) The Tribunal notes that the information sought by the applicant in Item 25 was released to the applicant during the hearing. (2) The Tribunal also notes that the information redacted from the cover sheet of the s150 pdf file referred to in Item was agreed to be released to the applicant. (3) The decision of the respondent is otherwise affirmed.

[9]

Tribunal's decision

The Tribunal set out the terms of Mr Klaric's previous application under the GIPA Act dated 10 October 2013. Mr Klaric requested: [A] copy of all the records, personal information, notes, opinions, remarks et cetera held, about myself, in the Police files and computer systems that are accessible to the Police, including the information available to the Police on their vehicle mobile data terminals. Basically all information and records linked to my name.
The Tribunal noted at [11], that in response to that application, the Commissioner had provided Mr Klaric with certain information relating to the period before 19 June 2013. The Tribunal described each item and the reasons for the Commissioner's decisions at [12] - [23]. In relation to items 8 and 9, the Tribunal wrote at [23], that: The Commissioner states that no notebook entry by Constable Cairns or a COPS record or other information was located in response to the 2013 application.
The Tribunal also recorded Mr Klaric's submissions including that some of the information he requested exists and is held by the Commissioner and that some of the information provided is not authentic.
At [31], the Tribunal was satisfied that "the information sought in the present application is substantially the same as that sought in the 2013 access application." The second part of the test in s 60(1)(b) is that "there are no reasonable grounds for believing that the agency would make a different decision on the application."
The Tribunal summarised Mr Klaric's submission at [33]: Mr Klaric insists that there is other information which exists which should have been produced in response to the 2013 application. As was apparent at the hearing, however, this is speculation on his part. The Commissioner's response to the 2013 application was to provide certain information to Mr Klaric. Mr Klaric sought internal review of that decision and on that review was in fact provided with further information. Other information was withheld as the Commissioner formed the view that there was an overriding public interest consideration against disclosure. Mr Klaric has not provided any submissions or evidence which would indicate that that decision was in error. Indeed, as noted above, the Information Commissioner was satisfied that the Commissioner's decision was justified.
The Tribunal came to the following conclusion at [34]: I am satisfied that insofar as the present application seeks access to information which pre-dates 19 June 2013, there are no reasonable grounds for believing that the agency would make a different decision on the present application. Both components of s 60(1)(b) of the GIPA Act are therefore established in relation to items 1 to 12.

[12]

Legal principles

The Tribunal has power to review "a decision that government information is not held by the agency": GIPA Act, s 80(e). 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. The Tribunal noted that, in reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches (at [65]). It also recognised that the agency has the burden to justify its decision that it does not hold information, and that this issue is different from whether its search for information was sufficient.
Section 53 provides that: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must 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. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

[13]

Tribunal's decision

The Tribunal identified the following information as not being 'held' by the Commissioner: 1. Item 13: On 14 August 2015, police officers knocked on Mr Klaric's door. Mr Klaric says he heard a female voice on Sergeant O'Connor's radio say, "take extreme caution against the male occupant of this residence, he has severe warnings against him." The Tribunal's understanding of Mr Klaric's request for information in Item 13 was that he was seeking information upon which the statement he said he heard over radio was based. The Tribunal summarised the evidence of Matthew Smith, Senior Advisory Officer, infoLink, NSW Police Force about Mobile Data Terminals in police vehicles and noted that police maintained that they had provided Mr Klaric with all the relevant COPS event records, with certain redactions. 2. Item 18: Mr Klaric seeks the notebook records relating to the 14 August 2015 incident prepared by Sergeant O'Connor which he says must exist. Mr Smith gave evidence that no details of any such calls are recorded in the COPS event relating to the incident and that NSW Police Force does not have a record of telephone calls made by police officers when performing their duties. 3. Item 21: Mr Klaric seeks access to all police records relating to an incident on 31 December 2016. Mr Smith gave evidence that there were no incidents involving Mr Klaric recorded for this date on the COPS database. Mr Klaric does not accept that in circumstances where he was interviewed at Merrylands Police Station for running into two police women with his vehicle, that no information exists. 4. Item 23: Mr Klaric requested that he be given access to the notebook entry made by Constable Leahy in relation to an incident on 30 July 2017. Mr Smith gave evidence that no notebook entry by Constable Leahy has been located. 5. Item 26: Mr Klaric requested information made about him by Gerald Luck during an interview at the police station on 30 July 2017. At [59], the Tribunal wrote that: "Mr Klaric also seeks any notebook notes or computer entries made by Gerald Luck regarding his interview with him at the police station (Item 26). He states that a record should have been made of the interview. Mr Smith states that he contacted Constable Gerald Luck to undertake a search for any entry related to Mr Klaric on 30 July 2017. Constable Luck informed him that no records are held. The Commissioner submits that no record of the interview is held." Mr Klaric is convinced on the basis of information produced in response to another investigation that Gerald Luck would have created notes and paperwork following the interview. He would also have been interviewed during the formal investigation and notes would have been created.
At [69] - [71], the Tribunal set out its reasoning and conclusions about information that Mr Klaric submitted was 'held' by the Commissioner: "While it is unfortunate the documents relevant to Item 20 of Mr Klaric's request were not identified until close to the time of the first hearing, I am not satisfied that the fact that particular document was located establishes that other material exists. Mr Klaric makes various assertions that certain information that he seeks, primarily notebook and other entries relating to various incidents, should exist. The assertion appears to be made on the basis of his belief that in the normal course of policing these entries and records would be made. I accept these assertions are reasonable in order to at least establish the possibility that information of the kind sought exists. It remains to consider therefore whether in all the circumstances the search efforts made by the Commissioner to locate the requested documents have been reasonable. Mr Matthew Smith has set out the steps which were taken to identify information caught by the access request made by Mr Klaric. This involved searches of the COPS database and contact with the Fairfield Police Area Command and the Ryde Police Area Command seeking access to records held in relation to Mr Klaric, including notebook entries. Mr Smith also made direct contact with other areas of the NSW Police Force and individual officers in relation to some items requested by Mr Klaric. I am satisfied that the searches that were undertaken by the Commissioner were reasonable. Undertaking additional searches would involve a substantial and unreasonable diversion of resources of the respondent, and accordingly need not be undertaken. I am therefore satisfied that the decision that the Commissioner does not hold information is justified."

[18]

Tribunal's decision

At [72], the Tribunal described the redactions the Commissioner made relying on overriding public interest considerations against disclosure: Redactions were made to two documents released to Mr Klaric in the 16 August 2018 decision - the notebook entry by Constables Osbourne and Moran about the 17 July 2016 incident and the COPS report of the 30 July 2017 incident. Redactions were also made to the documents released in the 4 June 2019 decision in relation to Item 20.
The Tribunal agreed with the parties' characterisation of the public interest considerations in favour of disclosure. The Commissioner highlighted the following two factors: that the records generally contain information which relates to Mr Klaric or which is known to him; and the public has a general right to access government information held by agencies. In his supplementary decision of 4 June 2019, the Commissioner also identified the general public interest in the disclosure of information which could reasonably expect to reveal or substantiate that an agency or member of that agency has been engaged in misconduct or negligent, improper or unlawful conduct. Mr Klaric also highlighted that consideration.
The Tribunal dealt first with the notebook entry of 17 July 2016 and the 30 July 2017 COPS report. The Tribunal noted that confidential evidence was provided by Senior Constable Debbie Taylor-Johnson in relation to the redacted information. The Tribunal summarised that evidence at confidential paragraphs [88] to [92]. The Tribunal reached the following conclusions in relation to Items 13, 17 and 23 at [93] - [96]: I agree with the submission of the Commissioner that there is a significant public interest in ensuring that no prejudice is suffered by the NSW Police Force in exercising its crucial policing functions and that this public interest consideration against disclosure should be given substantial weight. I am also mindful, as the Commissioner has noted, that the information may be described as the personal information of Mr Klaric which is a factor in favour of disclosure which should also be given considerable weight. Some information in the 30 July 2017 COPS report was redacted on the basis that its disclosure would reveal personal information (cl 3(a)). The information concerned is information about victims and witnesses. While the victims and witnesses are police officers whose names have been disclosed, I am satisfied that the redacted information is personal information about them which has not already been publicly disclosed as it concerns addresses, telephone numbers and other personal identifiers. I am therefore satisfied that disclosure of the information could reasonably be expected to reveal an individual's personal information. The public interest in protecting and controlling the disclosure of that personal information of other individuals should be afforded significant weight. [NOT FOR PUBLICATION] Mr Klaric has not advanced any particular argument about why he should be provided with the personal information of the officers concerned other than to rely on the public interest considerations in favour of disclosure as discussed above.
The Tribunal separately considered item 20. That item was the subject of the supplementary decision made on 4 June 2019. The Commissioner released, with redactions, a report of an investigation into a complaint Mr Klaric had made against police. The Commissioner relied on several public interest considerations against disclosure in the Table to s 14. Detective Chief Inspector Newton gave confidential evidence about the investigation of complaints about police officer misconduct. The Tribunal accepted that evidence.
At [103] to [108], the Tribunal identified and balanced the public interest considerations against disclosure and the public interest considerations in favour of disclosure. The Tribunal affirmed the Commissioner's decision "other than in relation to the information which the Commissioner released or agreed to release to Mr Klaric during the course of the proceedings."

[21]

Mr Klaric's submissions

Item 25 requests that the names of three police officers who he says arrived at the scene following an incident in West Ryde on 30 July 2017. He said that one officer arrived in vehicle RY 16 and another in RY 15. The orders the Tribunal made included the following notation: The Tribunal notes that the information sought by the applicant in Item 25 was released to the applicant during the hearing. (Emphasis added.)
The background to the Tribunal's notation is at [58] of the decision: Mr Klaric states that other police officers arrived at the scene of the incident and he requests that he be given their names (Item 25). Following the hearing Mr Klaric was provided with the names of the officers in the relevant vehicles. (Emphasis added.)
At [108], the Tribunal affirmed the Commissioner's decision "other than in relation to the information which the Commissioner released or agreed to release to Mr Klaric during the course of the proceedings."
The notation in the orders suggests that police gave Mr Klaric the information during the hearing, whereas at [58], the Tribunal states that police gave the information following the hearing. Paragraph [108] suggests that the material was "released or agreed to (be) released . . . during the course of the proceedings." Mr Klaric states that he did not receive any information until after the hearing. That inconsistency in the Tribunal's decision is immaterial and does not justify giving permission to appeal. More significant is Mr Klaric's contention that he was not provided with the information he requested.
Mr Klaric says he gave police a physical description of the officers and the number plate of the vehicles they were driving. Following the Tribunal's first hearing, the Commissioner provided Mr Klaric with the names of two police officers who were driving vehicle RY 16. The letter to Mr Klaric added that "it can be confirmed that neither of those officers was at the scene." According to Mr Klaric, those officers fit the physical description he provided and were at the scene. Mr Klaric submitted that he was not provided with the names of the officers who were present and that the Commissioner was wrong to deny that the officers he described were at the scene.

Klaric v Commissioner of Police

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Judgment (24 paragraphs)

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Cited By (33)