Roberts v Commissioner of Police, NSW Police Force

The second access application

1. The second access application was received by the respondent on 4 January 2017 and is the subject of file number 2017/00059886. The application was not determined within time and the respondent was deemed to have refused to deal with it by operation of s 63 of the GIPA Act. Following lodgement of the review application with the Tribunal, the respondent made decisions releasing some documents in full, releasing some with redactions and refusing access to others. Some 376 pages of documents fell within the applicant's request for access. Some further information was released to the applicant by the respondent during the hearing.
2. In relation to the documents to which access was refused in whole or in part, the respondent states that access was refused:

• on the basis of legal professional privilege;
• because the information is excluded information; or
• because there is an overriding public interest against disclosure having regard to the public interest considerations in the Table to s 14 of the GIPA Act.

The issues before the Tribunal

1. In addition to challenging the bases upon which the respondent has refused access to documents in whole or in part, the applicant disputes the adequacy and completeness of the respondent's searches for documents falling within the scope of the two access applications.
2. The issues before me are therefore whether:

• the respondent holds information which falls within the scope of the access application and which has not been disclosed to the applicant;
• information which has not been released is subject to legal professional privilege (Schedule 1, cl 5);
• information has not been released is excluded information (Schedule 1, cl 6); or
• there is an overriding public interest against disclosure of information having regard to the public interest considerations in the Table to s 14 of the GIPA Act.

1. I will deal with each of these matters and the relevant law in sequence.

Does the respondent hold further information?

1. At the hearing the applicant raised an issue as whether all documents covered by his access applications had been identified by the respondent.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. In Amos v Central Coast Council [2018] NSWCATAD 101 (which was decided after the close of submissions in this case), 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.
8. The applicant 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 as was evidenced in the course of the criminal proceedings against the applicant;
• some documents refer to attachments which have not been produced; and
• there was some disparity in the number of emails discovered during different searches.

1. The applicant submits that the respondent's searches for relevant documents have therefore been inadequate.
2. 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.
3. The respondent has stated that the applicant must put on some credible material or submission that documents of the kind requested exist. 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).
4. 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].
5. An affidavit of Jennifer Evans, Senior Advisory Officer, External Information Access Unit, NSW Police Force sets out in detail the searches which have been undertaken in response to the applicant's two access requests. She also addresses the applicant's complaint that some attachments were referred to but not produced and states that the attachments were either elsewhere among the documents produced or were outside the scope of the request. In relation to the emails, she details why more emails were returned using certain keywords than in another search and concludes that this skewed the result so that many emails were in fact out of scope.
6. In the circumstances of this matter, I am satisfied that the searches that the respondent undertook in response to the access applications addressed the specific matters contained in the application. In response to each request, inquiries were made of relevant areas within the NSW Police Force which were likely to hold relevant documents and electronic and paper files were examined. Email searches were also undertaken.
7. While it was unfortunate that one document in particular was not located until rather late in the proceedings, I am not satisfied that that fact indicates that the initial searches themselves 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 affidavit of Ms Evans demonstrates that considerable time and effort was put into responding to the applicant's requests.

Legal professional privilege

1. The respondent has refused to release a number of documents, either in whole or in part, because they are subject to legal professional privilege.
2. There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. Under s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
3. Clause 5 of Schedule 1 to the GIPA Act provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
4. The applicant submits that the evidence provided by the respondent does not establish that a claim for legal professional privilege has been properly made in relation to the relevant documents. The applicant referred in particular to the report of the Information Commissioner in relation to her review of the respondent's decision in the first access application where the Information Commissioner cast some doubt about whether the claim for legal professional privilege had been properly made out. The Information Commissioner's review led to a new decision being made.
5. The applicant also submits that, even if a proper claim for legal professional privilege is made out, it has been lost, at least in relation to documents concerning the prosecution of the applicant, by reason of misconduct or abuse of power by the respondent.

Has the claim for legal professional privilege been made out?

1. The Tribunal has considered cl 5 of Schedule 1 in numerous matters. Client legal privilege protects confidential communications between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client or for use in current or anticipated litigation.
2. In order for client legal privilege to attach to information, each element of client legal privilege must be satisfied. The essential elements of client legal privilege are: 1. the existence of a client and lawyer relationship; and 2. the confidential nature of the communication or document; and 3. the communication or document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. for use in existing or anticipated litigation.
3. These considerations are embodied within sections 118 and 119 of the Evidence Act 1995 (NSW).
4. It is not only the primary record of the advice that is privileged. Summaries of the advice and documents recording instructions to provide legal advice attract the privilege if they are prepared or made for the purpose of providing advice to a client: Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 at [30]; Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 at [34].
5. Inspector Marco Carlon, Co-ordinator, Administrative Law Unit, Office of General Counsel, NSW Police Force provided an affidavit in the proceedings as did Ian Steptoe who is a Paralegal in the same unit. Mr Steptoe also gave evidence at the hearing. The applicant is critical of the fact that Inspector Carlon did not give evidence at the hearing as he was unavailable and was therefore not cross-examined.
6. Inspector Carlon's affidavit is detailed and, in addition to setting out the various arrangements for the provision of legal services within and to the NSW Police Force, deals with each of the documents over which privilege has been claimed. Despite the applicant's comments to the contrary, I am satisfied that Inspector Carlon is appropriately qualified to speak to the matters contained in his affidavit. I agree with the applicant, however, that Mr Steptoe in his evidence at the hearing did not reveal a detailed knowledge of the documents over which privilege is claimed or of the authors of those documents.
7. The applicant questioned whether one officer who provided advice in a document relevant to the second access application had a practicing certificate at the relevant time. Based upon additional information provided by the respondent I am satisfied the officer held a practising certificate at the time the advice was given.
8. Based on my perusal of the documents over which privilege has been claimed and the evidence provided by the respondent, I am satisfied that the communication is either for the dominant purpose of seeking or receiving legal advice, or in the context of legal services provided in relation to an anticipated or commenced legal proceeding, that is, the prosecution of the applicant. I am therefore satisfied that the information is subject to legal professional privilege. I note that privilege has not been waived.

Has privilege been lost?

1. As noted above, the applicant submits that, even if privilege is made out in relation to documents concerning prosecution of him for the alleged offence of fabricating false evidence, that privilege has been lost. The applicant concedes that, if privilege is found to exist in relation to information concerning his application for an ex gratia payment, the issue of loss of privilege does not arise.
2. The parties agree that legal professional privilege can be lost in certain circumstances under s 125 of the Evidence Act or at common law where there is evidence of fraud, misconduct or abuse of power.
3. The applicant's submission that the privilege has been lost centres on his belief that the prosecution against him was instituted and maintained in circumstances which indicate that it was attenuated by malice. This belief primarily stems from the fact that the evidence he describes as the "exculpatory evidence" was not disclosed to the Office of the Director of Public Prosecutions (ODPP) prior to the institution of the prosecution and was only disclosed close to the hearing of the matter. The evidence was a statement by Constable Schoen and an electronically recorded interview (ERSIP) with one of the persons the applicant had charged.
4. The applicant refers to s 15A of the Director of Public Prosecutions Act 1986 (NSW) which imposes a duty on law enforcement officers to disclose to the ODPP all relevant information that might reasonably be expected to assist the case for the prosecution or the case for the accused person. He contends that the prosecution against him was brought about by the failure of the NSW Police to disclose the exculpatory evidence to the ODPP and that this is evidence of a malicious prosecution against him.
5. The applicant also makes reference to various offences under the Crimes Act 1900 (NSW) at ss 317-319 concerning the suppression of evidence and actions intending to pervert the course of justice. He alleges that certain police officers deliberately withheld key pieces of evidence, including from the respondent's legal advisers, which proved his innocence and were engaged in a fraud, or abuse of power or some other misconduct.
6. The respondent does not agree with the applicant's characterisation of the circumstances in which a prosecution was commenced against him.
7. The applicant primarily refers to the judgment of Young J in AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) ALR 651 as setting out the principles applicable to a consideration of whether the privilege is lost because of fraud or some other illegal or improper purpose. In its submissions the respondent sets out in some detail the relevant principles drawn from the cases which have considered this issue.
8. What is apparent from AWB and the other cases cited by the respondent is that there must be some form of dishonesty, intention or deliberate conduct involved to give rise to the loss of the privilege (see for example, Idoport Pty Ltd v National Australia Bank [2001] NSWSC 222; Kang v Kwan [2001] NSWSC 698; Van Der Lee v New South Wales [2002] NSWCA 286). The Tribunal outlined the principles governing the application of s 125 of the Evidence Act in Kreutzer v University of Sydney [2015] NSWCATAD 270. The Tribunal considered that a high level of intentional wrongdoing is required before legal professional privilege will be found to be defeated, and that something approaching an actual criminal conspiracy would appear to be necessary (at [98]-[99]).
9. In relation to a possible breach of a statutory duty, such as the duty imposed by s 15A of the Director of Public Prosecutions Act, the Tribunal in Saggers v Attorney General's Department [2005] NSWADT 193 said at [36]: The malfeasance or misconduct must be of a gross kind, not one that may be no more than an administrative oversight in the course of a process which the Act clearly entitled the Government to undertake … The case law does not stand for the proposition … that a failure to remain within the boundaries of statutory power … is enough to give rise to the loss of legal professional privilege. Much more is required.
10. In considering whether a communication was made in furtherance of some fraud, misconduct or abuse of power, the Tribunal does not need to be satisfied that the fraud etc was actually committed, but that there are reasonable grounds for so finding (Zemanek v Commonwealth Bank of Australia [1997] FCA 1016 at [5]), or that there is "something to give colour to the charge" (as per Santow J in Kang v Kwan at [37]).
11. The applicant submits that, as there has never been an explanation for why the evidence of Constable Schoen and the ERSIP were not disclosed, it is open to the Tribunal to conclude that the evidence was deliberately withheld to allow him to be improperly prosecuted.
12. The open evidence of the respondent is that there was no attempt to conceal the existence of the ERISP, that the interview subject declined to give a formal statement, that the applicant's original solicitor never requested a copy of the ERISP and that, as soon as a subpoena was received, a disc and subsequently the transcript were provided to the ODPP and the applicant. In relation to the statement of Constable Schoen, the evidence is that a statement was originally requested in May 2011 but she was on leave. A statement by Constable Schoen did not exist until after she was contacted on 8 April 2013 to obtain one. It did not exist when the decision to prosecute was made and did not exist when the brief of evidence was served on the applicant.
13. [NOT FOR PUBLICATION]
14. While it no doubt would have been better that the material had been served earlier in the proceedings, the evidence does not support a finding that the communications the subject of legal professional privilege were made in furtherance of a commission of a fraud, misconduct or a deliberate abuse of power. Rather, the prosecution proceeded upon another basis. The privilege is therefore not lost.

Excluded information

1. A number of documents relevant to both access applications were not released, either in whole or in part, to the applicant on the basis they were "excluded information".
2. Under s 14(1) of the GIPA Act it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
3. Clause 6 of Schedule 1 provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.
4. "Excluded information" of an agency is information that relates to any function of an agency that is specified in Schedule 2 of the GIPA Act in relation to that agency. Relevantly, the following information is "excluded information" for the purpose of the GIPA Act:

• with respect to the Office of the Director of Public Prosecutions, information relating to prosecution functions (cl 1, Schedule 2); and
• with respect to the Police Integrity Commission, information relating to its corruption prevention, complaint handling, investigative and reporting functions (cl 2, Schedule 2).

1. The effect of a conclusive presumption of an overriding public interest against disclosure of information is that an agency is not required to balance the public interest in favour of or against disclosure the before refusing access to that information. (See further below on the public interest test.)

Office of the Director of Public Prosecutions - prosecution functions

1. The respondent states that pages 1 to 39 of the confidential documents filed with the Tribunal in the first application are excluded information as they relate to the prosecution functions of the ODPP. The bundle also contains other documents that are duplicates of some of these pages. The applicant appears to no longer dispute that is the case. In any event, I am satisfied that this information is excluded information as it relates to the prosecution functions of the ODPP. (See DF v Attorney General's Department [2002] NSWADT 164 and Miller v Director of Public Prosecutions [2012] NSWADT 38 for a discussion of the ambit of the term "prosecuting functions".) I note that the ODPP has not consented to the release of the information.
2. The respondent has withheld access to certain information by redactions to several other documents in the first access application on the same basis. The applicant queries whether this information is information of the respondent and not actually information of an external agency. The respondent states that the redacted passages directly refer to the documents which are excluded information, reveal the substance of the communications contained therein and often reproduce extracts from the excluded information.
3. Having perused the relevant documents I am satisfied that the redacted information, while contained in a record of the respondent and not one originating from the external agency, contains information which reproduces or references or reveals the substance of the excluded information concerning the prosecution functions of the ODPP. I agree with the respondent that the conclusive presumption against disclosure in cl 6 of Schedule 1 would be rendered largely redundant if it did not extend to secondary reproductions of the source information, as disclosure of the reproduction will reveal the contents of the information. In those circumstances, it is also excluded information.
4. In the second access application the respondent withheld further information on the basis that it relates to the prosecuting functions of the ODPP and is, according, excluded information subject to a conclusive presumption against disclosure. Access to one document was refused in its entirety while information said to be excluded information was redacted from other documents. Again, I am satisfied that the information is excluded information concerning the prosecution functions of the ODPP.

Police Integrity Commission

1. In the second access application one document (at p 278 of the confidential bundle in the second access application) was withheld in its entirety on the basis that it was excluded information because it relates to the to its corruption prevention, complaint handling, investigative and reporting functions of the Police Integrity Commission. Redactions were made to four further documents on the basis they reveal the substance of the communication contained in the document at p 278.
2. The applicant submits that the document at p 278 contains, at least in part, information of the respondent. The applicant again queries whether the information in the redacted documents information is information of the respondent and not actually information of an external agency. Additionally, the applicant queries whether the Police Integrity Commission has been properly asked whether it consents to the release of the information.
3. For the reasons set out above, I am satisfied that access to the redacted information may be refused on the basis that it is excluded information if the primary source document is excluded information. Having read the relevant documents, I am satisfied that the information is excluded information as it relates to the to its corruption prevention, complaint handling, investigative and reporting functions of the Police Integrity Commission. I am also satisfied, based on the evidence provided by Mr Patrick Mullane, that the Police Integrity Commission has not consented to the release of page 278 or of the redacted portions of the other documents.

Public interest

1. Under the GIPA Act there is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act.
2. There is a general public interest in favour of disclosure of government information: s 12 GIPA Act. Section 12 sets out examples of public interest considerations in favour of disclosure of information. However, there can be an overriding public interest against disclosure. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure
3. The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act. It is a public interest consideration against disclosure of information where, to do so, would reveal an individual's personal information: s 14 Table, cl 3(a). Information was redacted from a number of documents by the respondent on the basis that it would reveal personal information. The applicant takes no issue with those redactions and I am satisfied the redactions were properly made.
4. The applicant does take issue, however, with information redacted from the document at page 21 of the documents filed in relation to the second access application. The respondent submits that in relation to the redacted information there is an overriding public interest consideration against disclosure of information as disclosure of the information could reasonably be expected to:

• prejudice the effective exercise by the agency of the agency's functions (s 14 Table, cl 1(f));
• prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of the agency by revealing its purpose, conduct or results (s 14 Table, cl 1(h)); and
• 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)).

1. The document in question is a request for assistance to the Professional Standards Command of the NSW Police Force created by Commander Susan Waites on 13 April 2011. It is for the respondent agency to establish that its decision is justified: s 105 of the GIPA Act. Detective Chief Inspector Stephen Newton, Professional Standards Manager, professional Standards Command gave evidence and was cross examined on this issue.
2. Detective Chief Inspector Newton's evidence was that the information is confidential and not known to the public. He stated that the information reveals the existence and details of investigations of the NSW Police Force. He stated there is a need for such information to flow between Local Area Commands and the Professional Standards Command so that police can perform their investigative functions, including investigations into the conduct of other police officers. He is of the view that these investigations would be undermined if the information was disclosed, by allowing police officers to know what kind of conduct might attract Professional Standards Command attention and thus allow them to take evasive action to avoid being investigated. He stated that release of the information would impact on the ability of the police to undertake conduct investigations in the future, as officers will become aware of the indicators that lead to such investigations.
3. In his submissions, the applicant outlines a series of events which occurred in relation to the prosecution against him and the way his subsequent complaints were dealt with. He states these matters raise serious questions about the misuse of public power to institute criminal proceedings, about the manner in which the NSW Police Force and the ODPP perform their functions and the failure to investigate those responsible for instituting a malicious prosecution against him. In his submission, these matters weigh heavily in favour of disclosure of the information, particularly as disclosure of the information could reasonably be expected to substantiate his concerns of misconduct on the part of officers of the respondent. In addition, he states that he is seeking information personal to him concerning the decision to prosecute him. The applicant also submits that the respondent has not discharged the onus placed on it to justify that there is an overriding public interest against disclosure of government information.
4. The respondent does not dispute that there are public interest considerations in favour of disclosure, although it does not agree with the applicant's characterisation of those interests.
5. The applicant, of course, is in a difficult position having not seen the information which has been withheld. There are valid public interest considerations concerning accountability and transparency which favour disclosure. I am, however, satisfied that the information is particularly sensitive and, having regard to the evidence of Detective Chief Inspector Newton, from which he did not resile at the hearing, I am satisfied that there is an overriding public interest against disclosure for the reasons provided by the respondent.

Conclusion

1. In relation to both the first and second access applications, certain information was released to the applicant during the course of the hearing. In addition, the respondent no longer maintained a claim of legal professional privilege over page 306 of the documents filed in the second access application. In relation to the remaining information in both applications, in accordance with my findings set out above, it is not to be released to the applicant for the reasons stated.
2. The most appropriate orders are to note that certain information has been released to the applicant, but to otherwise affirm the decisions.

Orders 1. The Tribunal notes that in respect of both applications further information was released to the applicant during the hearing. 2. The decisions of the respondent in both applications are otherwise 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: 15 June 2018