Redfern Legal Centre v Commissioner of Police - [2021] NSWCATAD 288 - NSWCATAD 2021 case summary — Zoe

NSWNSWCATAD

Redfern Legal Centre v Commissioner of Police

[2021] NSWCATAD 288

NCAT Administrative and Equal Opportunity|2021-09-07

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Court

NCAT Administrative and Equal Opportunity

Decision date

2021-09-07

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Introduction

On 16 February 2021, the applicant lodged an access application with the respondent under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). The information sought in the access application included: "Strip search and drugs The following records are requested in respect of strip searches conducted by NSW Police for each of the following financial years: 2018-19 and 2019-2020. 1. The total number of strip searches where drugs were found as a result of a strip search. 2. Relating to the above question, where drugs were found during a strip search, a break-down of the type of drug found for each financial year. 3. Out of the type of drug found, how many of those strip searched were charged with: a. Drug possession under s 10(1) of the Drug Misuse and Trafficking Act ('the Act') b. Supply of a prohibited drug under s 25(1) of the Act c. Ongoing supply under s 25A of the Act d. Deemed supply under s 29 of the Act."
On 16 March 2021, the respondent notified the applicant of the respondent's decision: 1. under s 58 (1)(a) of the GIPA Act, to provide applicant with access to the information sought in items 1 and 2; and 2. under s 58 (1)(b) of the GIPA Act, that the information requested in item 3 was not held by the respondent.
On 29 March 2021, the applicant lodged an internal review application with the respondent, seeking a review of the decision that the information requested in item 3 was not held by the respondent.
On 28 April 2021, the respondent notified the applicant of its internal review decision, which affirmed the original decision.
On 3 June 2021, the applicant filed an application with the Tribunal for administrative review by the Tribunal of the respondent's decision.

[2]

[9]

The Enterprise Data Warehouse ("EDW")

The EDW was developed to allow the NSWPF to analyse COPS data. As noted above, data is stored in the COPS database across a large number of different tables. The EDW brings these tables together in the form of particular "data marts". The data marts capture a large proportion, but not all, of the data that is stored on COPS.
A "data mart" is a predefined subset of the data in the EDW, against which a query can be run. The main data marts used by the SST to generate crime statistics are: 1. "Incidents", which includes certain data about COPS incidents or events. It does not include any detail about the demographics of the people involved in a specific incident or event; 2. "Legal Actions", which combines data from the Charge Management System with other data relating to court-based and non-court-based actions as well as information about the matter and demographics of people involved in the matter; 3. "Court Actions", which includes data in relation to court based actions only (e.g., court attendance notices). It also contains information about the matter and demographics of people involved in the matter; 4. "Non-Court Actions", which includes data in relation to non-court based actions only (e.g., traffic infringement notices). It also contains information about the matter and demographics of people involved in the matter; and 5. "Involvement - Person and Organisation", which includes data in relation to events as well as the demographics of the people involved in the event.
A query run in the EDW will generate a pivot table of data, which can then be viewed and manipulated in Microsoft Excel and transferred to Microsoft Word.
Whilst the EDW allows more searches to be undertaken than COPS, it also has limits. In particular, the EDW only allows searching within a particular data mart and a search query cannot be run against more than one data mart simultaneously.
Where there is no single data mart that contains all of the necessary fields to be searched and thus the query cannot be run using the EDW, it is necessary to write a code in SQL.

[12]

Responding to item 3

It is not possible to provide an answer to item 3 using the EDW, for various reasons, including the need to search more than one data mart and in particular the need to search both the "Involvement" data mart and either the "Legal Action" or "Court Action" data mart.
To answer item 3, a code would need to be written in SQL so as to: 1. create a list of relevant data contained in the "Involvement" data mart, including about the person searched, their CNI, whether there was a strip search, whether there was a drug found, what the drug was, the event number and the incident number; 2. identify any "search" incidents that also had a "drug detection" incident against the same person within the same incident; 3. join the "Involvement" data mart with the "Legal Action" or "Court Action" data mart, probably by reference to the incident number and the CNI (which would also allow the statistician to check that the data related to the one incident and the one person); and 4. filter, using another "where" clause, the "legal actions" associated with the "drug detection" incident according to the particular legislation (e.g., to display only "legal action" under the Drug Misuse and Trafficking Act).
After that query had been run, it would be necessary to import the output table(s) into an Excel spreadsheet and then undertake a process of quality assurance, to ensure that the query had generated an accurate response and that there was not, for example, a problem with the way that the code had been drafted. If there were to be such a problem, then the statistician would need to revisit the code.
Once the quality assurance process (including any re-writing of the code and then running a query based on that code) had been completed, the results could be transferred to a Microsoft Word document.
It is not possible to simply run the SQL program created for the UNSW Application to obtain an answer to item 3, and it would be necessary to write a new SQL code "from scratch".

[13]

Relevant provisions of the GIPA Act

The following provisions of the GIPA Act are relevant: Long Title An Act to facilitate public access to government information. … 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (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. (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this 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. 4 Interpretation (1) Key definitions In this Act - "access application" means an application for access to government information under Part 4 that is a valid access application under that Part. … "government information" means information contained in a record held by an agency. … 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. … 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. … 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following - (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency. … Schedule 4 Interpretative provisions 1 Definitions In this Act - … "record" - see clause 10. …

[16]

Respondent's submissions

The respondent's submissions may be summarised as follows: 1. where an agency does not hold, in a "record", information that is responsive to an access application, the GIPA Act does not require it to create a new record that contains the information sought. In this regard, the respondent relied in particular upon: 1. the use of the past tense in the expressions "information contained in a record" in the definition of "government information"; and "information compiled, recorded or stored in written form or by electronic process…" in the definition of "record" (emphasis added); 2. s 53(1) and (2) of the GIPA Act which require that an agency "search" only for information held at the time the access application is received; 1. the GIPA Act does not require agencies to "search" for an answer to a question, as opposed to searching for information contained in existing records. In this regard, the respondent relied upon the following observations made by Senior Member Lucy in Shvetsova v University of New England at [31]-[34]: "31. … The boundary between requesting access to information and requesting an agency to interrogate information in a particular way may sometimes be hard to draw. Nonetheless, an analysis of the relevant legislative provisions indicates that the right to information is a right to access existing information, not a right to have questions about that information answered. 32. Some of the relevant provisions of the GIPA Act are as follows. 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, s 9(1)). "Government information" is defined to mean "information contained in a record held by an agency" (GIPA Act, s 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, s 53(1) and (2)). If the information is not held by the agency, the agency may make a decision to that effect (GIPA Act, s 58(1)(b)). 33. 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. 34. This view is consistent with the comments of Deputy President Higgins (as she then was) that the GIPA Act "is not a vehicle for seeking answers to questions a person might have in regard to administrative action taken by a government agency, or seeking an explanation by an agency as to why particular action was taken": Davison v NSW Department of Education and Training [2013] NSWADT 25 at [3]. Higgins DP observed that such a question is not a request for information "held" by the agency: Davison v NSW Department of Education and Training [2013] NSWADT 25 at [24]." ; 1. whilst it is not necessary to apply s 75 of the GIPA Act, previous decisions of the Tribunal have considered the terms of s 75(2) and, in particular, s 75(2)(c), to be relevant to this inquiry: see, in particular, Kitson v Manly Council [2015] NSWCATAD 102. The Appeal Panel decision in Commissioner of Police v DYD [2020] NSWCATAP 224, which concerns s 75, is not on point; and 2. s 75(2)(c) provides some insight into what processes Parliament considers to be involved in the "creat [ion of] new information" or the "produc [tion of] a new record of information"; i.e., "deduction, inference or calculation from information held by the agency" or "any other use or application of information held by the agency".

[17]

Applicant's submissions

The applicant's submissions may be summarised as follows: 1. "record" is defined as "any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner, by any other means" (applicant's emphasis); 2. information contained within COPS is a "record" for the purposes of s.4 GIPA Act. In this regard the applicant relies upon Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160, where Senior Member McAteer held at [74]: In my view such information lying dormant in the COPS system concerning auditable information would, for the purposes of cl 10 of Sch 4 constitute a record capable of being produced as information under the GIPA Act. I therefore find that the information (concerning accesses of the COPS system) is capable of being produced under the GIPA Act. 1. the respondent's concession that the information held in the COPS system constitutes a "record" for the purpose of the Act is sufficient to satisfy the requirement that the information sought is "government information"; 2. what is now required of the respondent is best characterised as compiling electronic material, i.e., producing an existing record. In this regard, the answer to the UNSW Application is an example of the compilation of existing information; 3. the compilation of electronic material should not be considered the making of a new record. The compilation of electronic material was briefly explored in Barrett v Commissioner of Police, NSW Police Force [2014] NSWCATAD 32 where the Tribunal said (at [23]): "I agree with the view of the [Office of the Information Commissioner] that the need to compile this information… does not constitute the creation of a new document for the purposes of s.75 of the GIPA Act." 1. in answer to the respondent's submission that key definitions are expressed in the past tense, it needs to be borne in mind that all government information is held electronically and the policy of the GIPA Act is to make government information available; and if it is restricted to information in the form in which it originally existed, this could be open to abuse by agencies who might adopt a policy of not interrogating their databases and claiming that information is not held when the request in the access application does not correspond to a request for raw data; 2. in modern electronic data storage mechanisms, electronic data is regularly held in separate and disparate locations within record keeping systems and to produce usable information from that data often requires a level of compilation. It cannot be said that any such compilation is the creation of a new record; 3. a Fact Sheet issued by the IPC and titled "Creating new records under the GIPA Act" ("Fact Sheet") provides as follows: "[A] new record will not be created when a record is: ... produced by collating information held electronically from different areas using a standard reporting capability function available to the agency."; and 1. running the SQL query should be seen as a standard function in circumstances where it has been done before, in respect of the UNSW Application.

[18]

Respondent's submissions in reply

In reply, the respondent submitted that: 1. contrary to the applicant's submission, the respondent had not conceded that the information sought in item 3 was "government information". Rather, the respondent's position was that: 1. COPS contains certain "unit level data" regarding individual strip searches and charges; 2. this unit level data meets the definition of "government information"; but 3. the respondent did not hold, in any "record", the "aggregated data" that has been requested by the applicant; 1. the objects and provisions of the GIPA Act operate upon "government information" and the identification of such information is a prior step to the application of those objects and provisions; 2. it is acknowledged that the respondent could use and interrogate the data that is stored in COPS in order to produce a response (or answer) to the question that is posed by item 3. However, such a response can only be produced by the application of highly specialised expertise in computer programming and statistical analysis. This process amounts to the creation of new statistical information, rather than the simple extraction or compilation of a pre-existing information; 3. the actions required to prepare a response to the applicant's request go well beyond the mere "compilation of electronic material". The fact that the raw data required to produce a response to the applicant's request is stored in an electronic format does not alter the nature of the task required to produce that response. Whilst this is a computer age, COPS is a system established in 1994 and is comprised of a number of different systems that have been developed over time and for different purposes. It is not designed to allow for the extraction, compilation and organisation of data so as to create aggregated data or statistics. Functionality has been built into COPS over time to allow for a limited number of downloadable reports to be run, however, it is not possible to answer any of the applicant's requests for information using these reporting functions; 4. producing a response to item 3 would amount to the creation of new information, or the production of a new record of information "by deduction, inference or calculation" (adopting the terminology of s 75(2)(c) of the GIPA Act). Section 75 confirms that an agency is not required to do this in order to respond to an application under the GIPA Act, and this position has been confirmed by the Tribunal on a number of occasions: see, e.g., Kitson v Manly Council; O'Grady v Sutherland Shire Council [2020] NSWCATAD 50 at [50] and Klaric v Commissioner of Police [2020] NSWCATAP 153 at [54]; 5. the analogy that the applicant seeks to draw with running a standard report, such as a COPS audit report (as in Barrett), or "collating information held electronically from different areas using a standard reporting capability function available to the agency" as referred to in the Fact Sheet is a false analogy because there is no standard reporting function that allows the generation of a compilation of information of the nature sought by the applicant; 6. the Fact Sheet is also supportive of the respondent's position in that it includes: "A new record will be created when a record is: … ● produced by collating information held in different electronic folders or systems; ● converted following non-standard processes such as generating non-standard reports … Consider the following examples: ● designing and building a new function within a system in order to generate a report that extracts and collates information from separate databases"; 1. the provision of information in answer to the UNSW Application does not bind the respondent to provide the information now sought.

[19]

Information Commissioner's submissions

The Information Commissioner: 1. noted that the Fact Sheet is not a guideline issued by the IPC for the purposes of the GIPA Act, rather it was published so as to promote awareness and understanding of GIPA Act (see s 17(a) and (b)); 2. noted that the reviewable decision under s 80(e) of the GIPA Act involves a question of fact - that the respondent does not hold the information sought - which the respondent bears the onus of proving; 3. noted the five step approach to the review of decisions that information is not held, described by the Appeal Panel in Wojciechowska v Commissioner of Police [2000] NSWCATAP 173; 4. referred to the decision in Denyer v Commissioner of Police, NSW Police Force at [74]; 5. submitted that the obligation on 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: s 53 (1). In addition to s 53(1), the GIPA Act provides other indications that the information is information held at the time of receipt of the access application, including: 1. the reference in the definition of "record" to information already compiled; 2. the GIPA Act does not require the agency to create new information or a new record of information by way of deduction, inference or calculation from information held or by any other use of application of information held: s 75(2); Kitson v Manly Council at [6] and [17]; 1. noted that the Tribunal had recognised the relevance of digital record environment to agency search requirements and that in Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 at [97], the Tribunal stated: "Every Government agency today has some form of a computerised Records Management System (e.g. TRIM) that captures and manages all paper documents and electronic documents held by the agency. Section 53(2) of the GIPA Act recognises this by requiring an agency to undertake 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'. Section 53(3) provides that this obligation 'extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically'."

[22]

Context

The broader context of the GIPA Act also supports the narrower construction, for the following reasons.
First, s 53 (1) of the GIPA Act limits the obligation on an agency to provide access to government information in response to an access application to information held by the agency when the application is received: see Choi v Commissioner of Police, NSW Police Force [2020] NSWCATAP 211 at [16]; Shvetsova v University of New England at [32]-[33].
Secondly, s 75 of the GIPA Act provides that an agency is not obliged to create a new record in response to an access application and has been interpreted by the Tribunal as providing a basis for agencies not to provide information which would require the creation of a new record: see e.g. Kitson and O'Grady. Further, in Klaric, an Appeal Panel stated at [54]: "Mr Klaric may apply for access to "government information": GIPA Act, s 9. "Government information" is defined in s 4 to mean "information contained in a record held by an agency." An agency is "not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information": GIPA Act, s 75(1). But an agency is not required "to create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency": GIPA Act, s 75(2)(c). It follows that the Commissioner is not obliged to answer a question such as who was at a particular place at a particular time. The limit of the Commissioner's obligation is to provide a record held by the agency which provides that information."
Whilst the same Appeal Panel subsequently held in DYD (at [38]) that the decision required by s 75 is one made after a decision whether or not to grant access to the information sought, this does not detract from the proposition that s 75 supports the narrow construction.

[23]

Purposes, legislative history and extrinsic materials

The purposes of the GIPA Act are set out in the long title as being to facilitate public access to government information and in s 3 of the GIPA Act as: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by - (a) authorising and encouraging the proactive public release of government information by agencies, and (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. (2) It is the intention of Parliament - (a) that this Act be interpreted and applied so as to further the object of this 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 applicant submitted that the policy of the GIPA Act is to make "government information" available and this supports the wider construction. However, this begs the question: what is "government information"?
The applicant also submitted that the narrower construction created the potential for abuse by agencies which might adopt a policy of not interrogating their databases and claiming that information is not held when the request in the access application does not correspond to a request for raw data. Whilst such a possibility may be open, it does not provide a sound basis for the wider construction, particularly in the face of the textual and contextual considerations discussed above. The applicant did not suggest that the possibility of such an abuse was a mischief at which any part of the Act was directed and there does not appear to be any basis for such a suggestion.
The Tribunal was not taken to any legislative history or extrinsic materials in support of either construction.
For all of the above reasons, the narrower construction is to be preferred, and "government information" is limited to information which exists at the time of the access application.
For completeness, the Tribunal notes that: 1. the decision in Denyer does not assist the applicant. It does not stand for any general proposition of sufficient breadth to apply to the present case. Rather, it turns on its own facts and in particular that within COPS an audit trail had already been created, which could be produced. 2. the applicant's submissions concerning "modern electric data storage mechanisms" are unsupported by evidence. In any event, whether a new record is created (or more to the point, whether a record existed at the time of the access application) depends upon the evidence of the particular record in a particular case; 3. the extract from the decision in Barrett also does not assist the applicant. It also does not stand for any general proposition of sufficient breadth to apply to the present case. It also turns on its own facts and in particular that the information in question, an audit report, had been created and was available to the Tribunal and "was no more than the extraction of the COPS information held and 'top and tailed'"; and 4. it is not obliged to take into account the Fact Sheet (which favours the narrower construction) in reaching its determination and has not done so.

Redfern Legal Centre v Commissioner of Police

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