Pearson v Commissioner of Police, NSW Police Force

The issues

1. As noted above, the decision which was made by the respondent was to refuse to deal with the GIPA application under s 60(1)(b) of the GIPA Act on the basis that it had already decided a previous application for the information concerned (or information that is substantially the same as that information) made by Mr Pearson and there were no reasonable grounds for believing that it would make a different decision on the application. The respondent submits that the decision should be affirmed.
2. However, the procedural history of the matter before the Tribunal indicates that, despite that submission, the Commissioner's approach to the application has changed and that position can no longer be maintained. The narrowed scope of the GIPA application as agreed at the case conference, in my view, means that the current application is somewhat different to Mr Pearson's earlier applications. This is because the information now sought relates only to the period 14 May 2017 to 6 September 2017 and concerns information created or received by NSW Police after Mr Pearson's previous GIPA application. It is therefore not concerned with information previously sought. To that end, following the agreement to narrow the scope of the application, NSW Police in fact conducted further searches to identify documents caught by the narrowed scope.
3. Also, during the course of the proceedings NSW Police provided Mr Pearson with some documents to which he had previously not had access. It appears that the majority of those documents, however, fall outside the agreed narrowed scope of the request, although it was stated by the representative for the NSW Police at the hearing that some information was within the scope of the request. No formal amended or supplementary decision has been made by NSW Police about Mr Pearson's access request since the scope of the request was narrowed by agreement.
4. The history of the matter outlined above would indicate that, rather than refusing to deal with the application, the Commissioner is of the view that the information applied for is already available to Mr Pearson (s 80(f)) and that no further information applied for is held by the NSW Police (s 80(e)). Mr Pearson is very firmly of the view that other documents exist with which he has not been provided.
5. Under s 53 of the GIPA Act, 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.
6. The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. The Tribunal's jurisdiction in relation to whether adequate searches have been conducted has generally been considered to arise under s 58(1)(b), which provides that an agency may decide an access application by deciding that the information is not held by the agency, and s 80(e) which states that this is a reviewable decision.
7. The cases have applied the approach of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464. In that decision the Commissioner outlined a two-stage approach to the question of what constitutes an adequate search. The first is to consider whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency. If that question is answered in the affirmative, then to consider whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances.
8. Under this approach, in the context of the GIPA Act, the Tribunal must form a view as to whether there may be some further information that falls within the scope of the access application and, if so, whether the efforts that the agency concerned made to find the information were sufficient.
9. In a recent decision of this Tribunal, Senior Member Lucy took a different approach. She held that, while the Tribunal has jurisdiction to review a decision that an agency does not hold information, it does not have jurisdiction to review an alleged failure by the agency to comply with the obligation under s 53(2) of the GIPA Act to conduct reasonable searches (McClymont v Department of Family and Community Services [2017] NSWCATAD 202). An issue which therefore arises, as it does in this case, is whether, where an agency identifies information that it holds and provides or refuses access to that information but does not make an explicit decision that it holds no further information, it can be implied that the agency has in fact made a decision that it holds no further information relevant to the access application.
10. In Amos v Central Coast Council [2018] NSWCATAD 101 Senior Member Lucy canvassed that question and examined the relevant case law and the history of recent legislative changes. She referred to the decision of the Appeal Panel in Robinson v Commissioner of Police [2014] NSWCATAP 73 where the Appeal Panel stated at [8] that a decision that government information is not held by an agency "may be said to be an implied decision in any decision responding to an access application". Implicit in the Appeal Panel's findings in Robinson is that such an implied decision is reviewable under the GIPA Act. I have therefore proceeded on the basis that it is and have approached the issue in line with the findings in Robinson and Amos.

Does the respondent hold further information?

1. Mr Pearson contends that a range of factors indicate that the respondent holds further information relevant to his access application. These factors include:

• further documents were located in the course of the Tribunal proceedings;
• the respondent has a history of being disinclined to produce documents;
• it is possible to infer from the contents of some documents which have been provided that other documents must exist; and
• Mr Pearson has written letters copies of which have not been included in the material he has obtained under GIPA.

1. In reviewing a decision that an agency does not hold information, it is appropriate to consider the sufficiency of an agency's searches to locate relevant documents. The approach as set out above derived from the decision in Shepherd provides a useful guide to how it may be determined that the agency's searches were reasonable.
2. The respondent has stated that Mr Pearson has not been able to provide any material which challenges the Commissioner's position. However, as was noted in Amos, the burden of establishing that the decision that an agency does not hold information is justified lies on the agency: GIPA Act s 105(1). That being said, Mr Pearson was unable to point to material that is within the scope of the amended request which he believes should exist but has not been provided. Many of his statements concerned information that is outside the scope of the request or concern whether information already provided is accurate rather than whether other information exists that has not been provided.
3. What constitutes a reasonable search will vary with the circumstances, however, key factors include the clarity of the request, the way the agency's record keeping system is organised and the ability to retrieve any information that is the subject of the request: Miriani v Commissioner of Police (NSW) [2005] NSWADT 187 at [30]; Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30]. That there may be some weaknesses in an agency's searches or failures in recordkeeping within the agency, does not necessarily lead to the conclusion that the search has not been reasonable: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15]; Saggers v Environment Protection Authority [2013] NSWADT 109 at [49]. The fact that further documents are subsequently located does not mean that the initial searches were not reasonable: Watson v NSW Trustee and Guardian (No 2) [2016] NSWCATAD 19 at [25]-[28].
4. A statement of Senior Sergeant Glen Reid, Coordinator, External Information Access Unit, NSW Police Force sets out in detail the searches which were undertaken in response to the scope of the request as agreed at the case conference, including the key words used in various searches. Senior Sergeant Reid states that his search involved the methods reasonably available to him to locate documents or information captured by the amended scope of the request. He annexed to his statement a copy of documents falling within the scope of the access request. As noted above, the Commissioner states that those documents have previously been provided to Mr Pearson and there are no further documents that can be provided.
5. In the circumstances of this matter, I am satisfied that the searches that the respondent undertook in response to the amended access application addressed the specific period contained in the application. In response to the request, inquiries were made of relevant areas within the NSW Police Force which were likely to hold relevant documents and electronic records and systems were examined.
6. While it was unfortunate that some documents were not located until after commencement of the Tribunal proceedings, I am not satisfied that that fact indicates that the searches undertaken after that time by Senior Sergeant Reid were not reasonable. I am also not able to draw any conclusion that the respondent has shown a tendency to be disinclined to produce documents. Indeed, the statement of Senior Sergeant Reid demonstrates that considerable time and effort was put into responding to the applicant's amended request.
7. It follows, in these circumstances, that I am not satisfied that there are reasonable grounds to believe that other information that falls within the scope of Mr Pearson's access application is held by the respondent.
8. At the hearing Mr Pearson agreed that he has previously had access to all the documents identified by Senior Sergeant Reid in his recent search.

Conclusion

1. All that remains is to decide what decision should be made in this application. It is clear that the Commissioner's initial decision - which is the decision under review - to refuse to deal with the access application is no longer applicable. The role of the Tribunal is to make the correct or preferable decision having regard to the material before it (s 63 Administrative Decisions Review Act 1997). In this case, the correct or preferable decision is to set aside the Commissioner's decision and make a decision in substitution in the terms set out below.

Orders 1. The decision under review is set aside. 2. A decision is made in substitution pursuant to s 80 that the information applied for is already available to the applicant and that no further information is held by the respondent. 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: 12 June 2019