Robinson v Commissioner of Police, NSW Police Force

ISSUES BEFORE THE TRIBUNAL ISSUES BEFORE THE TRIBUNAL

• Has all the information relevant to the application been located?
• Is there an overriding public interest against disclosure of information sought by the applicant in terms of s.13 of the GIPA Act?

EVIDENCE 8The applicant, in his submissions to the Tribunal sought info about the Information Report. He also pressed for information about the 2000 visit by Police. 9The respondent provided a statement by Senior Sgt Fam of the respondent's Information Access and Subpoena Unit. A statement was also provided by Sgt Kaine of the Respondent's Counter Terrorism and Special Tactics Command. 10The Respondent also provided, on a confidential basis, the unredacted version of the Redacted Events.

Has all the information relevant to the application been located? 11SENSGT Fam wrote in his statement that with the benefit of the additional information provided by the Applicant at the Planning Meeting, staff at the Information Access and Subpoena Unit undertook a search of information held by the respondent. The search involved utilising resources that were reasonably available to it. As a result the search located documents that fell within the amended scope of the Application such as archival documents that recorded correspondence to and from the Police relating to the culling of Information Report I 3838201 from the COPS system. Another document was also located - the Information Report. 12The task before the Tribunal, simply put, 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. 13There is some overlap in these 2 questions, because, it is fair to say, if the respondent has already searched extensively for material answering a GIPA application, then logically the likelihood of there being additional documents reduces with each ensuing search. 14In summary, the respondent submitted that it has conducted reasonable searches for the information falling within the scope of the applicant's request. 15In Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30] the Tribunal considered the key factors in assessing whether a sufficient search had been carried out. These factors included, relevantly, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be reasonably inferred by the agency from any other information supplied by the applicant. However, what constitutes a sufficient search will vary with the circumstances. 16Section 53 requires the agency to use "the most efficient means reasonably available to the agency" when searching for records. It is not required to undertake a search that would "require an unreasonable and substantial diversion of the agency's resources." 17In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [65], the Tribunal held that it must be satisfied that an agency's determination is a fully responsive one; it is not enough for an applicant to merely assert non-compliance by the respondent with its obligations under the GIPA Act on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69]. 18In 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.

Is there an overriding public interest against disclosure of information sought by the applicant in terms of s.13 of the GIPA Act? 19In deciding whether to release information, the Tribunal must apply the public interest test and decide whether or not an overriding public interest against disclosure applies to the information.

The Information Report 20Sgt Kaine's evidence was that he had reviewed the Information Report. It had been created by the of and that evidence established that the Information Report was created by the Police's Counter Terrorism and Special Tactics Intelligence Unit, which is the predecessor of the current Counter Terrorism and Special Tactics Command. The document had been classified as protected and is not to be disclosed to anyone outside the Command, including other Police officers. 21Clause 7 of Schedule 1 of the GIPA Act provides as follows: 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 ... 22Having regard to the evidence of Sgt Kaine I find that there is a conclusive presumption against providing access to this information exists with respect to the Information Report. This is a matter about which I have no discretion to require the disclosure.

The Redacted Events 23Section 13 of the GIPA Act requires the Tribunal to undertake the following steps:

• identify the relevant public interest considerations in favour of disclosure
• identify the relevant public interest considerations against disclosure.
• determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies. 24Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure. 25The applicant did not indicate why he sought the information. 26The respondent submitted, and I agree, that the following public interest considerations in favour of disclosure of the information are relevant to the information sought by the applicant:
• the statutory presumption in favour of the disclosure of government information;
• the general right of the public to have access to government information held by agencies; and
• the information is personal information of the person to whom it is to be disclosed 27The general public interest considerations against disclosure are limited to those set out in the Table in s,14 of the GIPA Act. 28The respondent submitted that the following public interest consideration against disclosure is relevant:
• Disclosure of the information could reasonably be expected to reveal an individual's personal information: cl.3(a) of the Table 29The term "personal information" means: information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion 30I have reviewed the Redacted Events and find each includes the personal information of other people that were named in each Event. I am satisfied that the provision of each Event without redaction would reveal to the Applicant the following personal information about other persons:
• In Event 38832023 - the date of birth and the address of the person referred to and observations regarding that person
• In Event 3860136 - the licence number and date of birth of the driver of the other vehicle named in the Event that relates to a motor vehicle collision. 31The redacted information is personal information of the type generally only known by the person and disclosure of that information would reveal an individual's personal information for the purposes of the GIPA Act.

Balancing the public interest considerations 32The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the Act, paying due regard to the principles in s. 16 of the GIPA Act. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure: see Flack v Commissioner of Police [2011] NSWADT 286 at [19] and Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: s. 5 GIPA Act. 33The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council: at [70]. 34I consider that the general consideration in favour in s.12 should be accorded significant weight, consistent with the object of the GIPA Act. On the other hand, disclosure which could reveal personal information (cl.3(a) of the Table) should also be given significant weight. 35The Tribunal may have regard to the personal factors set out in s.55(1) of the GIPA Act for the purposes of considering, the public interest considerations against disclosure in cl.3(a) of the Table. (a)the applicant's identity and relationship with any other person, (b)the applicant's motives for making the access application, (c)any other factors particular to the applicant. 36The applicant provided no submission as to any of these considerations. The applicant sought to obtain access to information which appeared to relate to his interactions with Police, and it did not appear that the applicant was actually seeking the personal information in the redacted Events. 37As I have found that the redacted Events contain personal information of third parties, I am satisfied that in this matter the public interest considerations against disclosure in the redacted Events outweighs the public interest in favour of the disclosure of the personal information that has been redacted. 38I therefore find that the respondent has discharged its onus and I find that, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. DECISION 39The decision under review is 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: 19 May 2014