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[2014] NSWCATAP 73
NCAT Appeal Panel
2014-09-11
Original judgment source is linked above.
reasons for decision 1This is an appeal against a decision of the Tribunal made under the Government Information (Public Access) Act 2009 (GIPA or the Act). 2The appellant is the access applicant. On 26 June 2013 the appellant filled in the form used by the Commissioner of Police, NSW Police Force (the agency) for recording applications for access to information under GIPA. It is apparent that the appellant had difficulty expressing himself in written English. The agency treated the request, appropriately, as one for all information held by it about the appellant. The agency issued its decision on 23 July 2013, and advised that its searches had located seven Event Reports contained in its Computerised Operational Policing System (COPS). Five were released in full to him. Two were released in part (E 38832023, E 3860136), the deletions being considered necessary because they referred to the personal information of other persons. In deciding to make these deletions, the agency considered that the usual public interest in favour of disclosure of agency information was outweighed by the public interest consideration against disclosure of another individual's personal information(GIPA, s 14 Table 3(a)). 3The appellant applied to the agency for internal review of the decision. From the material before us, the application does not appear to have been actioned, resulting in a deemed refusal. He proceeded to lodge an application for external review with the Tribunal on 16 October 2013. 4In the course of the planning meetings held by the Tribunal the agency identified two further documents relevant to the application, a document relating to the culling of a Report from the COPS system, and a document relating to a complaint made by the appellant to the Ombudsman. Those documents were released in full to the appellant. 5In addition it located an Information Report (I 5126986) which it withheld in full. In its opinion, the document fell within the scope of the conclusive presumption against disclosure found in clause 7(b) of sched 1 of GIPA, i.e. 7 Documents affecting law enforcement and public safety It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents: (b) a document created by the Counter Terrorism and Special Tactics Command of the NSW Police Force, the former Counter Terrorist Co-ordination Command of the NSW Police Force, the former Protective Security Group of the Police Service, the former Special Branch of the Police Service or the former Bureau of Criminal Intelligence, 6Finally, the appellant continued to press the view that not all documents covered by his application had been found, and questioned the reasonableness of the search. 7In its reasons the Tribunal stated that there were two issues before it: (a) has all information relevant to the application been located; and (b) is there an overriding public interest against disclosure of information sought by the applicant in terms of s 13 of GIPA. Under heading (b), the Tribunal examined the agency's decision in relation to the two documents released in part, and the document the subject of the claim of a conclusive presumption. 8The question of whether all documents have been located becomes a reviewable decision in the following way. If the agency's answer is that it has no further documents in relation to the information sought, that is a decision 'that the information is not held by the agency' (s 58(b). A decision that government information is not held by an agency is a reviewable decision (s 80(e)). Such a decision may be said to be an implied decision in any decision responding to an access application. The appellant expressed his concern that the search had not located all documents in his response to the initial decision. Because no internal review decision issued, the matter was addressed by the agency in the course of the planning meetings that proceeded the Tribunal's hearing on the papers. In support of the adequacy of its search, the agency relied on an affidavit from Senior Sergeant Nargis Fam of the Information Access and Subpoena Unit, Parramatta. 9The Tribunal referred in its reasons to s 53 of the Act and the Tribunal's approach to the issue of adequacy of search in cases heard under the predecessor law to GIPA, the Freedom of Information Act 1989 (FOIA). In 2008 the Court of Appeal ruled that FOIA, properly construed, did not give the Tribunal jurisdiction to examine inadequacy of search. The provisions now found in GIPA respond to that gap in FOIA. The approach taken to this issue in the Tribunal under GIPA has had regard to the old FOIA decisions. See, for example, Beer v Commissioner of Police, NSW Police Force [2013] NSWADT 243, and its reference to the summary of relevant given in Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5. 10The Tribunal concluded that there was 'no evidence of further searches the respondent could reasonably undertake to attempt to locate any additional documents falling within the scope of the application': [18]. 11The Tribunal then examined the agency's objection to release of the Information Report the subject of the claim of a conclusive presumption against access. The Tribunal considered an open affidavit provided by Sergeant Kaine of the agency's Counter Terrorism and Special Tactics Command which was brief. The agency also filed confidentially with the Tribunal the document in issue. The Tribunal dealt with the matter briefly in its reasons. It is constrained in the detail it can give of evidence, in particular the document in issue, going to an overriding public interest against disclosure by the nature of a dispute of this kind, and the provisions of the Act (see s 107). 12Finally, the Tribunal reviewed the contents of the two documents the subject of deletions, and upheld the agency's decision.
The Appeal 13A party has a right to make an internal appeal against a final decision of the Tribunal of the present kind 'on any question of law'. The appeal may be made 'on other grounds' if the Appeal Panel grants permission (or 'leave') for that to occur. See Civil and Administrative Tribunal Act 2013, s 80. 14The appellant's notice of appeal was completed in hand-writing by him, and is affected (as was his original access application) by the limited extent of his ability to express himself in writing. The agency's notice in reply to the appeal noted that no question of law was identified, and that it seemed that the appellant wished to put in issue the merits of the decision. We agree with the agency's assessment of the contents of the notice of appeal. 15The appellant did not file any written submissions, the first step in the directions given in relation to the appeal which was fixed for hearing on 11 September 2014. We are not surprised by that given the literacy difficulty to which we have referred. To its credit, the agency took no objection to that omission. The agency copied to the appellant on 5 September 2014 the open material it relied on in relation to the appeal. It included its evidence and submissions to the Tribunal below in relation to the adequacy of search issue and the two documents the subject of deletions. The Commissioner filed separately with the Appeal Panel the closed evidence on which it had relied below. 16The parties both appeared at our first hearing at 10 am on 11 September 2014. The appellant handed up a hand written letter to the agency dated 11 August 2014, in effect repeating his request that he be given access to all documents held about him without restriction, and questioning whether all relevant documents had been found. 17In the course of that hearing we raised concerns as to whether the Tribunal had accurately formulated the law governing the adequacy of search question, and whether it had any relevant evidence. It seemed to us that there were arguable questions of law. The agency agreed to file additional submissions. We adjourned the matter to 9.30 am on 9 October 2014 for a short hearing of 30 minutes. The agency appeared and addressed its written submissions on the issues we had raised (filed 7 October 2014). 18The appellant did not appear. We heard the agency's submissions, and reserved our decision. The appellant contacted the registry about 10.15 am (a common starting time for Appeal Panel matters), advising that he was unable to attend, and sought an adjournment. He was advised of these events and that a decision had been reserved. We decided to grant leave to extend the appeal to further consideration of the adequacy of search issue as, for the reasons that follow, we considered that the Tribunal had erred in law in its dealing with that issue. The further hearing was held on 27 October 2014.
Adequacy of Search 19As noted, the Tribunal dealt with the review application on the papers. The agency relied on the affidavit of Senior Sergeant Fam. The affidavit contains 14 paragraphs. All of them are descriptive of the history of the agency's deliberations and the outcome of its deliberations. 20Section 53 provides: 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. 21Only one, para 11 bears on the issue of adequacy of search. Sgt Fam states: A reasonable search of information held by the NSW Police was undertaken by staff at the IASU [i.e., Information Access and Subpoena Unit, Parramatta] using resources reasonably available in order to locate information falling within the scope of the application as set out by the applicant. This search located documents that fell within the scope of the application as described by the applicant including archival documents that recorded correspondence to and from the NSW Police relating to the culling of Information Report I 3838201 from the COPS system. 22This evidence is summarised at para [11] of the Tribunal's reasons. 23The Tribunal then continues: 12 The task before the Tribunal, simply put, [sic] the Tribunal must come to a view whether there are reasonable grounds to believe there are some further documents relevant to the application and, if so, whether the respondent has tried reasonably hard to find them. 24The Tribunal then referred to some of the FOIA case-law statements on the approach to be adopted by the Tribunal in dealing with adequacy of search objections. 25Finally, the Tribunal concluded at para [18]: 18 In summary, I do not consider there to be reasonable grounds to believe that there are outstanding documents. Further, although there was little evidence provided by the Respondent about the extent of the search, I am satisfied there was no evidence of further searches the respondent could reasonably undertake to attempt to locate any additional documents falling within the scope of the application.
Consideration 26It will be seen that s 53 commences by confining limiting the agency's obligation to respond to a request to information held by it at the time of receipt of the request (sub-s (1)).This protection against having to look for information once held but no longer in the primary systems of the agency is buttressed by sub-s (4), which makes it unnecessary for the agency to search electronic back-up systems (subject to narrow exceptions). 27Importantly, sub-s (2) states that the agency 'must undertake reasonable searches as may be necessary' to find the requested information, and must do so 'using the most efficient means reasonably available to the agency'. The latter obligation is amplified by the obligation imposed by sub-s (3). As already noted, sub-s (4) protects the agency from having to make searches of electronic back up systems. Sub-s (5) contains the important qualification that searches that involve a 'substantial and unreasonable diversion of resources' need not be undertaken. We do not understand there to have been any claim based on sub-s (5) in this case. 28Sgt Fam's affidavit addressed none of the three matters relevant to this case: the nature of any searches that were undertaken (including for example to what databases they were directed), nor did it refer to the means used (the second limb of sub-s (2)) and whether systems of electronic retrieval were utilised (sub-s (3)). 29There is some recognition of this difficulty in the Tribunal's observation at para [18] - 'although there was little evidence provided by the respondent about the extent of the search'. 30The agency noted in its submissions to the Appeal Panel that the Tribunal also had before it the booklet containing the full text of the documents in dispute. Some additional detail can be inferred from the booklet, i.e. that the COPS system was interrogated, and the police intelligence system was interrogated (the subject of Sgt Kaine's open affidavit). 31In our view, all the affidavit attested to was the fact of a search. In our view, the Tribunal had no evidence addressing the matters to which s 53, especially sub-ss (2) and (3) give attention, other than inferences that might be drawn from the material found in the confidential booklet. In our opinion, the Tribunal erred in law in making a finding based on no evidence. 32Error of Law. The question that s 53(2) requires the Tribunal to assess is whether such searches were made as may have been necessary to find the government information applied for. When the request is a global one, a practical perspective should be adopted, and guidance can, we think be drawn from the FOIA period cases referred to in Beer and Camilleri. 33The focus of this enquiry required by s 53 is the administrative steps taken by the agency's search officers. The officers can give a concise account of the steps taken, but that account can not go so far as to simply assert that what was done (undescribed) was reasonable. 34While we accept that the Tribunal in the words it used in [12] was seeking to put things simply, we consider that it is not satisfactory to describe the Tribunal's task as being to satisfy itself whether the respondent has 'tried reasonably hard to find [the additional documents]'. The focus of s 53 is not whether the agency 'tried hard'. The enquiry is more didactic in nature, and needs to examine each of the matters to which sub-ss (2) and (3) give emphasis, and if relevant and raised by the agency, the matters to which sub-ss (4) and (5) refer. 35Finally, we emphasise that the agency bears a strict onus of proof in relation to its reviewable decision under s 105, and this onus applies to decisions of the kind under notice here. The onus cannot, as we see it, simply be satisfied by a self-serving statement that reasonable searches have been undertaken. 36In matters of internal administration of the present kind, it is important that the Tribunal be seen to insist on discharge of the onus. Access applicants will rarely be in a position to see inside the walls of the agency, and have any direct knowledge or evidence of what steps were taken to search for the information they seek.
Further Evidence 37If the Appeal Panel was minded to uphold the appeal on this issue, the agency asked that the Appeal Panel go on and dispose of the matter. We concluded after the hearing that this was the preferable course, rather than remitting the matter. We directed the Commissioner to file and serve an affidavit addressing the matters to which s 53 refers. 38We reconvened on 27 October 2014 for a short hearing. Both parties were present. 39The Commissioner filed a further affidavit from Senior Sergeant Fam, sworn 24 October 2014. Mr Zoppo for the Commissioner took the appellant through the affidavit. 40Senior Seargent Fam stated that records maintained by the NSW Police Force are maintained on the Computerised Operational Policing System (COPS) which is the primary system, the NSW TRIM system (recording file movements and the like), the Criminal Records Section's microfilm records in relation to records prior to 1994, NSW Police archives (hardcopy), and the FOI database that records applications and determinations made under the former Act. 41She referred to the initial search in response to the appellant's application, and its outcome resulting in the release of several documents on 23 July 2013. She referred to the further searches undertaken following the planning meeting held at the Tribunal on 19 November 2013. She explained the methodology of the searches undertaken across the systems mentioned above. She expressed the opinion that the searches were reasonable in the circumstances, and stated that they utilised systems and resources available to the Police Force to retrieve the information sought by the appellant. 42We are satisfied that the evidence now provided by Snr Sgt Fam addresses the factual matters to which s 53(2) and 53(3) are directed, and we are satisfied that the searches undertaken were reasonable in the circumstances.
Other Decisions of the Tribunal 43The appeal also puts in issue the Tribunal's decisions in relation to the redacted documents and the document the subject of the conclusive presumption. 44Neither the notice of appeal nor our scrutiny of the reasons suggested any questions of law to which we should give attention. 45The Tribunal engaged in the weighing task required by the Act in relation to the question of whether the deletions were justified on the ground of protection of the personal information of other persons. It reached its conclusion as to the applicability of the conclusive presumption in reliance of Sergeant Kaine's affidavit. We have examined the affidavit. Its contents provided evidence upon which the Tribunal could rely in reaching the conclusion it did. All of these matters involved findings of fact. In our view, it would not be reasonable to give leave to re-open this part of the appellant's case. 46At the hearing on 27 October 2014 the appellant was informed that the document the subject of the conclusive presumption was an intelligence document. 47The appellant raised concern about an incident in 1996 where he had been spoken to by police. Mr Zoppo noted that the relevant document had been destroyed, and removed from the active system, and the only record of it now existed in archives. This is a separate record from the one that is the subject of the conclusive presumption.
Order
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: 29 October 2014
Robinson
Commissioner of Police