Ruyters v Commissioner of Police

NCAT Administrative and Equal Opportunity|2019-12-11

REASONS FOR DECISION

In 2010 Ms Keli Lane was convicted of the murder of her daughter, Tegan. A subsequent appeal to the Court of Criminal Appeal was dismissed and leave to appeal to the High Court was refused.
The applicant in this matter, Dr Michelle Ruyters, represents the Bridge of Hope Innocence Initiative which has petitioned the NSW Attorney General to review Ms Lane's conviction. Ms Ruyters, with the consent of Ms Lane, made an application to the Commissioner of Police, NSW Police Force (the Commissioner) under the Government Information (Public Access) Act 2009 (GIPA Act) seeking access to VHS cassette tapes containing audio recordings of Ms Lane's conversations obtained under listening device warrants issued during the police investigation of Ms Lane.
Dr Ruyters was invited to amend or refine her application as the Commissioner was of the view that the time needed to process the application was considerable in light of the number and length of the tapes falling within the request. Dr Ruyters advised that she was unable to do so.
On 2 May 2019 the Commissioner refused to deal with the application under s 60(1)(a) of the GIPA Act on the basis that it was an unreasonable and substantial diversion of the agency's resources away from its own use in the performance of its functions. The Commissioner had identified that there were 104 tapes each of six hours duration and that it would take 624 hours to listen to the tapes for the purposes of the access application. The Commissioner noted that this time estimate did not include the time taken to "list, number and describe each tape, any conversion of the tapes to digital format such as DVD/CD (at an additional cost), balance the public interests for and against disclosure, any consultation with third parties, make any necessary redactions to the audio, preparing the Notice of Decision and peer review."
The decision was affirmed on internal review and Dr Ruyters subsequently sought administrative review of the decision by the Tribunal.

The legal principles

The objects of the GIPA Act as set out in s 3 are to open government to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.
Sub-section 3(2) provides that it is the intention of Parliament that the GIPA Act be interpreted and applied so as to further the objects of the Act and that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
A person aggrieved by a "reviewable decision" may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of that decision. A decision to refuse to deal with an access application is a reviewable decision for the purposes of the GIPA Act (s 80 (c)). The Tribunal's function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision, and may affirm, vary, or set aside the decision and make a substitute decision, or set aside the decision and remit it to the agency for further determination.
The burden of establishing that a decision made under the GIPA Act is justified lies on the agency, in this case the Commissioner.
In accordance with s 60 of the GIPA Act an agency can decide to refuse to deal with an access application on a number of grounds. Sub-section 60(1)(a) is relevant to this application and provides that an agency may refuse to deal with an access application where dealing with the application would require an unreasonable and substantial diversion of the agency's resources. In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided (s 60(2)). Ordinarily, an agency must decide an access application within 20 working days after it receives it (s 57(1)).
In Commissioner of Police v Danis [2017] NSWCATAP 7 the Appeal Panel said at [43]: Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of (sic) deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or … Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) …
The Appeal Panel went on to say that when reviewing a decision based on s 60(1) the Tribunal "should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources" at [49].
Sub-sections 60(3A) and (3B) were inserted into the GIPA Act by the Government Information (Public Access) Amendment Act 2018 (the Amendment Act) and commenced on 28 November 2018. They provide: (3A) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency may, without limitation, take into account the following considerations - (a) the estimated volume of information involved in the request, (b) the agency's size and resources, (c) the decision period under section 57. (3B) Any consideration under subsection (3A) must, on balance, outweigh - (a) the general public interest in favour of the disclosure of government information, and (b) the demonstrable importance of the information to the applicant, including whether the information - (i) is personal information that relates to the applicant, or (ii) could assist the applicant in exercising any rights under any Act or law.
The matters which may be considered under s 60(3A) are non-exhaustive. The factors in s 60(3A) and (3B) draw on two previous cases which dealt with the factors to be considered in an assessment of whether an application would require an unreasonable and substantial diversion of an agency's resources.
In Cianfrano v Director General, Premier's Department [2006] NSWADT 137 at [62] O'Connor DCJ stated that the matters relevant to such an assessment include: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; … (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort … (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency estimate as [to] the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency … (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications.
That case dealt with the former freedom of information legislation applicable in NSW prior to the introduction of the GIPA Act. In Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130 the Tribunal confirmed that these matters remain relevant to an assessment under s 60(1)(a) of the GIPA Act, although it also found that the changed context of the GIPA Act, which requires that discretions under it are to be exercised so as to enhance its objects (s 3(2)(b)), could result in "differing weight and importance being accorded to the Cianfrano factors" (at [26]). Colefax also identified that the fact that an access applicant is seeking their personal information is a relevant factor in the determination (at [27]).
Dr Ruyters submitted that the principles espoused in Colefax should not be followed in this instance and that this case should be distinguished from Colefax and Cianfrano. The reasons advanced for this approach largely relate to the fact that this matter concerns the liberty of Ms Lane and her right to a fair trial. The submissions in this matter by the Commissioner and the Information Commissioner were generally in agreement that the factors in Cianfrano and Colefax remain relevant. I also agree that the factors continue to be relevant to a consideration of whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources.
The submissions of Dr Ruyters to some extent misconstrue the basis upon which the decision of the Commissioner was made in this case. The submissions refer on several occasions to whether there is an overriding public interest against disclosure of the recordings and conclude that, in this case, public interest considerations in favour of disclosure outweigh any public interest considerations against disclosure. These submissions reflect the balancing test set out in s 13 of the GIPA Act in determining where the public interest lies in deciding whether information is to be provided to an access applicant. The application of the test in s 13 can only be made if an agency decides to deal with the application before it. The Commissioner's decision, however, was a refusal to deal with the application under s 60 of the GIPA Act. In those circumstances there is no requirement to undertake the balancing test set out in s 13. The Tribunal is required to determine whether the decision of the Commissioner to refuse to deal with the application is the correct and preferable one and not to determine whether the public interest in favour of disclosure overrides any public interest considerations against disclosure.
Sub-sections 60(3A) and (3B) require that, in deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, any consideration in s 60(3A) - considerations which broadly relate to the burden on an agency of processing the request - must, on balance, outweigh the general public interest in favour of disclosure and the demonstrable importance of the information to the applicant.
The Information Commissioner submits that, by requiring the considerations in s 60(3A) to outweigh those in s 60(3B), "the test is weighted in favour of a finding there is not an unreasonable and substantial diversion of the agency's resources". The Commissioner states that this submission is misleading and the GIPA Act says nothing about the weight to be given to each of the considerations in any given circumstance. Rather, the decision will always turn on an assessment of the relevant matters.
At the hearing the Information Commissioner clarified her submission and stated that s 60(3B) requires the value of the information to outweigh the burden upon the agency of dealing with the request and that is what is meant by the test being weighted towards the matters in s 60(3B).
In my view, the task to be undertaken by the Tribunal in balancing the considerations in s 60(3A) and (3B) is similar to that that the Tribunal routinely undertakes in applying the public interest test set out in s 13 of the GIPA Act. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. In matters other than where a conclusive presumption against disclosure applies, there will be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. In that case the decision-maker's task is to first determine whether, in respect of the information sought, there are public interest considerations against disclosure and then to balance those considerations against those public interest considerations in favour of disclosure. It is only where, the public interest considerations against disclosure outweigh those in favour that, in light of the presumption in s 5, information should not be disclosed.
The tasks to be undertaken in considering whether dealing with an application would require an unreasonable and substantial diversion of the agency's resources are to identify and take into account any matters falling within s 60(3A) and then to determine whether, on balance, those matters outweigh the factors set out in s 60(3B). It is only where the matters in s 60(3A) outweigh those in s 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency's resources.

Subsection 60(3A) considerations

The Commissioner submits that dealing with the application would require an unreasonable and substantial diversion of resources, in particular having regard to the size of the agency, the timeline which is binding on the agency, the amount of time that would be required to process the application and the opportunity given to the applicant to amend the application.
There is no doubt that the application made by Dr Ruyters was not global in any sense and was sufficiently precise to enable the Commissioner to locate and identify the information sought by her. As noted above, Dr Ruyters was invited to refine the scope of her request but declined to do so. In the circumstances, given the nature of the information sought, the fact that she did not do so is not a significant matter. Other than to make a series of requests based on certain time periods, it is difficult to know how the ambit of request could have been refined or amended. The end result would not have been materially different.

Time to process the application

Ms Neslihan Batur, who is the Operations Manager of InfoLink which is the team within the NSW Police Force that processes and responds to all applications to the NSW Police Force for information, including access applications made under the GIPA Act, in an affidavit provided in these proceedings states that 104 VHS cassettes tapes each containing six hours of material were identified as falling within the request. Listening to each tape from beginning to end would therefore take 624 hours or just under 18 weeks at a cost of just over $28,000.
Ms Batur states that there will be a number of other tasks associated with processing the access application which means that the processing time would extend well beyond 624 hours. She states that a Review Officer would be required to listen to all of the tapes and produce a schedule identifying and noting any overriding public interest considerations against disclosure that might apply in relation to the information contained on a particular tape. The Review Officer would then be required to balance the public interest considerations for and against disclosure in relation to the information contained on each of the 104 tapes. As it is highly likely that the tapes contain the personal information of persons other than Keli Lane, consultation would be required with any person whose personal information could be disclosed. Such personal information of other persons may well have to be redacted. Ms Batur states that it is highly likely given the nature of the information the amount of time to make any required reductions would be significant. Furthermore, Ms Batur states that, in order to make the reductions, the VHS tapes would need to be converted into a digital format at a cost of $48 per tape to enable the relevant edits to be made. She states that such technology is not currently available to InfoLink.
Ms Batur states that, given the extent of the information to be addressed, preparation and peer review of a Notice of Decision would also take a considerable period of time.
The Commissioner referred to the figure of 40 hours of work as referenced in Cianfrano as lying at the upper end of the range when considering the reasonableness of the allocation of resources to the processing of a request. The Commissioner noted that the time required to deal with this application is far in excess of 40 hours and submitted that the figure of 40 hours is a relevant comparator. The Information Commissioner noted that in Colefax the Tribunal cautioned against any inference that the findings on the particular facts and evidence in Cianfrano would establish something in the nature of a 40 hour rule. Other decisions of the Tribunal have emphasised that there is no 40 hour threshold for the purposes of s 60(1)(a) (Loussikian v University of Sydney [2018] NSWCATAD 140 at [51]; Zonneyville v Department of Finance, Services and Innovation [2017] NSWCATAD 186 at [78]).
There is no doubt that the time required to process the application would be considerable and would be far in excess of the 624 hours simply required to listen to the tapes. The assessments by the Commissioner of the time required to determine the application were not challenged at the hearing. I agree with the Commissioner that it is probable that there would need to be consultation with third parties whose conversations with Ms Lane would have been recorded and there may well be a need for redactions to the material which may pose some, although not insurmountable, technical challenges.

The agency's size and resources

The Tribunal has found in the past in cases such as Loussikian at [50] and Hanna v NSW Ministry of Health [2019] NSWCATAD 21 at [41] that it is a matter for an agency to determine what resources it makes available to process GIPA applications and whether or not the agency is large and well-endowed is not a relevant consideration in determining whether dealing with an application would unreasonably and substantially divert resources.
The express reference to "the agency's size and resources" included in s 60(3A) now makes clear that whether the agency in question is large and well-resourced will generally be a relevant consideration which may be taken into account by the Tribunal in determining matters under s 60(1)(a).
There can be no doubt that the NSW Police Force is a large agency. In her affidavit Ms Batur states that initial tasks associated with processing an access application are undertaken by officers in the Receipts Team within InfoLink. These tasks are predominantly administrative in nature. She states that there is also a Review Team comprised of Review Officers whose role is primarily to make decisions on access or disclosure of information in accordance with the provisions of the GIPA Act.
Ms Batur states that there are currently 13 Review Officers, not all of whom are permanent employees and not all are experienced in the role. In 2018 the NSW Police Force received 5,799 applications for information under the GIPA Act and in 2017 there were 6,044 such applications. Ms Batur states that the Review Officers process, on average, 8.5 GIPA applications each per week. The Commissioner states that, in order to process Ms Ruyter's application, a Review Officer would be diverted away from 153 applications they would ordinarily be expected to process. I note that this figure relates only to the time taken to listen to the tapes and not any other work involved in deciding the application.

The decision period under s 57

Section 57 of the GIPA Act provides that an agency must decide an access application within 20 working days. It is clear that the time required to process this application will far exceed 20 working days as the initial step of listening to all the tapes in and of itself will take some 18 weeks.

The s 60(3B) matters

Subsection 60(3B) requires consideration of the following matters: 1. the general public interest in favour of the disclosure of government information, and 2. the demonstrable importance of the information to the applicant, including whether the information - 1. is personal information that relates to the applicant, or 2. could assist the applicant in exercising any rights under any Act or law.

General public interest in favour of disclosure

In their submissions both Dr Ruyters and the Commissioner refer to the statement set out in s 12(1) of the GIPA Act that there is a general public interest in favour of the disclosure of government information and submit that this general interest is relevant in this case. The Commissioner submits that the term "general public interest" in s 60(3B) should be given the same meaning as in s 12(1).
In her submissions the Information Commissioner submits that there are two possible constructions of the term "the general public interest in favour of the disclosure of government information". The first is that the term should be given the same meaning as in s 12(1) which is the inherent public interest in the disclosure of any government information. The second is that the term requires the decision-maker to consider the public interest in the disclosure of the information being sought by the applicant. This requires the decision-maker to actually consider the nature of the information sought in the application. In that context the Information Commissioner refers to the non-exhaustive list of public interest considerations in the note to s 12(2) and states that these may be instructive when considering the public interest under s 60(3B).
The Information Commissioner submits that this interpretation is consistent with the broader test under s 60(1)(a) as to whether dealing with the application would require an unreasonable and substantial diversion of the agency's resources. She also refers to the recommendations of the statutory review and the way the amendment was expressed in the Explanatory Notes to the Bill for the Amendment Act.
Paragraph 5.41 of the Statutory Review: Government Information (Public Access) Act 2009 and the Government Information (Information Commissioner) Act 2009 recommended inserting into the legislation a number of factors relevant to a consideration of s 60(1)(a), including: The public interest in releasing the information is a highly relevant factor in keeping with the objects of the GIPA Act and the overriding principle that information should be released unless there is a strong public interest consideration against release.
These are not words, however, that are used in s 60(3B) as enacted. The Explanatory Note does no more than state: … the considerations [under s 60(3A)], on balance, must outweigh the general public interest in favour of disclosure as well as the demonstrable importance of the information to the applicant.
The note gives no guidance to the interpretation of the term and is in fact not relevantly different to the wording contained in the Amending Act itself.
The term "general public interest", as noted above, occurs elsewhere in the GIPA Act most notably in s 12(1). The courts have long held that where a word is used consistently in legislation it should be given the same meaning. As was stated in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 "it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament". Consistent with the principal set out in Craig Williamson and other cases the same meaning should be given to the phrase "general public interest" in both s 12(1) and s 60(3B).
I agree with the submissions of the Commissioner that the use of the word "general" in the phrase "general public interest" should be given its ordinary meaning of "common to many or most of the community" and "non-specific or special" (Macquarie Dictionary). In that sense the phrase "general public interest" indicates that it is the inherent public interest in the disclosure of government information that is to be given consideration for the purposes of s 60(3B) as it is in s 12(1).
Furthermore, the interpretation advanced by the Information Commissioner would require an agency to engage with the information sought under the access application to a sufficient degree to enable it to identify particular public interest considerations. That would seem to be contrary to the notion that an agency may, for certain specified reasons, refuse to deal with an access application. While there needs to be some engagement with the information in order to at least identify it and to ascertain whether any of the matters in s 60(1)(a) arise, such engagement would not be to the extent necessary to identify the public interest considerations relevant to the disclosure of the information being sought by the applicant.
In my view therefore the "general public interest in favour of the disclosure of government information" in s 60(3B) refers to the inherent public interest in the disclosure of government information as in s 12(1) and not to the other public interest considerations in favour of disclosure of the particular information sought as set out in the note to s12(2).

Importance of the information to the applicant

While the applicant in these proceedings is Dr Ruyters, it was acknowledged by the Commissioner that the application was made on behalf of Ms Lane. There is no doubt that the information sought is the personal information of Ms Lane being recordings of her conversations.
It was submitted by Dr Ruyters that the information may assist Ms Lane in exercising her rights under any act or law. The stated purpose in making the access application was to investigate "the wrongful conviction of Keli Lane in relation to the murder of Tegan Lane and Petition of Mercy".
Dr Ruyters states that the trial brief only contained some eight audio recordings obtained by the Commissioner in connection with the investigation of Ms Lane over a lengthy period. She submits those recordings ought to have been disclosed as part of the pre-trial disclosure process, a matter which the Commissioner disputes. In any event, she now seeks disclosure of the balance of the recordings to support Ms Lane's Petition of Mercy and states that these recordings may provide vital information for that petition to support her claim that she has been wrongfully convicted. In her submissions Dr Ruyters did not point to any information which might be contained in the recordings which may support Ms Lane's claim.
At the hearing Dr Ruyter's representative stated that at this point in time it is not known if the recordings will assist Ms Lane's Petition of Mercy but said that it would be a travesty if in fact the information would do so and was not released to her.
Subsection 60(3B) provides that the information sought must be of demonstrable importance to the applicant. The Commissioner submits that use of the term "demonstrable" requires an applicant to provide sufficient cogent material to make evident the importance of the information to the applicant. While I have some sympathy for the views put forward by Dr Ruyters that, should the information contain material which raises doubts as to Ms Lane's guilt, it would be a travesty if it were not released, nothing has been put forward throughout the proceedings, even in a relatively broad sense as to the nature of the information contained on the recordings, to substantiate any claim that the recordings contain information which may be exculpatory.
Dr Ruyters appears to suggest in her submissions the fact that the bulk of the tapes were not disclosed during the trial suggests that there is material in the recordings that would assist Ms Lane with her Petition of Mercy. Dr Ruyters has, however, put nothing before the Tribunal to substantiate any claim that the recordings were improperly withheld during the trial or, as noted above, that they contain any exculpatory material. Indeed, by her own admission, Dr Ruyters stated that she does not know if the recordings will assist Ms Lane.
In my view, while recognising the difficulties of applicants in identifying relevant material, it is necessary for an applicant to put forward some material to indicate the importance of the information sought rather than engaging in mere speculation or conjecture.

Conclusions

Subsection 60(3B) provides that any consideration under s 60(3A) must, on balance, outweigh the general public interest in favour of the disclosure of government information and the demonstrable importance of the information to the applicant. There was general acceptance at the hearing that the general public interest in favour of the disclosure of government information is relevant in this case, as it is in every case. In addition, the information that Ms Lane seeks is her personal information. The fact that the information is Ms Lane's personal information must weigh heavily in the balance.
Dr Ruyters submits that the personal circumstances of Ms Lane in requiring the information for her Petition of Mercy overwhelmingly outweighs the Commissioner's case that dealing with the application will be an unreasonable and substantial diversion of resources. As noted above, however, other than an assertion that the material might assist, nothing has been put before the Tribunal that would put the case any higher than that. Indeed, nothing other than the fact of the Petition for Mercy having been made was put which would indicate that release of the information could assist Ms Lane in exercising her rights.
On the other hand, I am satisfied that the volume of information involved in the request, being some 624 hours of taped material, is considerable. There is no doubt that the time required to deal adequately with the access application would far exceed 624 hours. The Commissioner would be unable to comply with the decision period of 20 working days under s 57 to any degree.
The NSW Police Force is a large agency and, as can be seen from the evidence given by Ms Batur, devotes considerable resources to dealing with the many requests to it for access to information. Dealing with this request would require an officer to be taken off-line for a lengthy period and would have a consequential effect upon the agency's ability to deal with other access applications. I accept that, even though the agency is large, its resources are not unlimited and dealing with this application would consume a substantial proportion of the agency's resources to deal with all access applications received by it. As was noted by the Appeal Panel in Danis, "[a]ccess applicants generally are assisted if agencies are not tied down by voluminous applications" (at [43]).
I am satisfied that dealing with the application would require an unreasonable and substantial diversion of the agency's resources. I am further satisfied there is a general public interest in favour of the disclosure of government information and that the information is personal to Ms Lane. However, she has failed to establish the demonstrable importance of the information to her. I am therefore satisfied that, having regard to the volume of the information involved, the time needed to deal adequately with the request and the cost of doing so and other relevant matters referred to above that these matters outweigh the matters referred to in s 60(3B).
I am therefore satisfied that dealing with the application would require an unreasonable and substantial diversion of the Commissioner's resources and that the correct preferable decision is to refuse to deal with the application pursuant to s 60(1)(a) of the GIPA Act.

Orders 1. The 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: 09 September 2020

At a glance

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Judgment (12 paragraphs)

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Cases Cited (4)

Cited By (16)