Serag v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2015-04-10

Reasons for decision

On 18 September 2013, Mr Serag applied to the Commissioner of Police under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") for access to "any document belong to him in regard to any surveillance or home detention against him without court decision and the reason for his punishment." The main issue in these proceedings is whether members of the NSW Police Force have conducted reasonable searches for that information.
On 23 October 2013, a person authorised by the Commissioner to determine applications under the GIPA Act wrote to Mr Serag to inform him of the determination of his application. One document was released to Mr Serag in full, another was released in part and the officer found that there were no documents held "in regard to surveillance or home detention against you". The redacted information was withheld on the basis that it was personal information, and there was found to be an overriding public interest against disclosure of that information.
Mr Serag applied for internal review of the decision on 14 November 2013. His application stated "I would like to ask if any document which was released to me in full or in part or any other reason can affect my freedoms or can Leading the Police to treat me different from the rest of the Australian people."
The internal reviewer interpreted Mr Serag's application as challenging the decision that there were no documents held by the NSW Police about him being under surveillance. The internal reviewer determined that there were no documents held by the respondent falling within the ambit of Mr Serag's application.
Mr Serag applied to the Information Commissioner for review on 24 February 2014, and on 5 August 2014 the Information Commissioner determined that the respondent's decision was justified.
Mr Serag applied to this Tribunal for review on 21 August 2014. In his application, he said that the ground for his application was "to get understanding if there is anything against me can affect my freedoms or force the police to discriminate and treat me different from the rest of Australian people". He said he believed that a report had been made against him "in the Victorian Police around Year 1997".

Scope of application

Mr Serag's application for internal review did not identify a ground of review. Rather, it was framed in terms of questioning whether his freedoms were affected by the documents which had been released to him. It was, however, clearly intended to be an application for internal review, as Mr Serag completed a form headed "Internal Review Application".
The GIPA Act does not require an applicant to identify a ground of internal review; rather, it simply provides that a person aggrieved by a reviewable decision of an agency is entitled to a review of the decision by the agency that made the decision (s 82(1)).
Mr Serag's application for review in the Tribunal also referred to gaining an understanding of whether anything could affect his freedoms or force the police to discriminate against him. It did not identify a ground of review. This is not, however, necessary under the GIPA Act, which provides that "[a] person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the [Administrative Decisions Review Act 1997 (NSW)] of the decision" (s 100).
It is not disputed that Mr Serag is a person who is aggrieved by the respondent's decision.
Questions then arise as to whether the decision which is the subject of review in this Tribunal is the original decision or the internal review decision and as to the scope of the application for review.
The Tribunal has jurisdiction to review a "reviewable decision", being a decision that is a reviewable decision under Part 5 (GIPA Act, s 100, Sch 4, cl 1 (definition of "reviewable decision")). The reviewable decisions originally made by the respondent were decisions under s 80 to refuse to provide access to information and that the information sought is not held by it. The internal reviewer made "a new decision, as if the decision being reviewed (the original decision) had not been made, with the new decision being made as if it were being made when the access application to which the review relates was originally received" (GIPA Act, s 84(1)). That is a decision "of an agency" within the meaning of s 80 and, in my view, it is the internal review decision which is now the subject of review in this Tribunal. If it were otherwise, this would lead to an absurd position whereby the Tribunal was reviewing an agency decision which had been superseded, for example by the partial release of documents to an applicant.
The internal reviewer treated the internal review application as raising only the question of adequacy of search, whereas the respondent's submissions in the Tribunal addressed both adequacy of search and whether there is an overriding public interest against disclosure of certain redacted information, containing individuals' personal information.
The internal review determined that the respondent holds no information to suggest that the applicant is or were ever under surveillance. As a consequence, the respondent's decision on internal review was that the information sought was not held by the respondent.
The Tribunal's task is to review this decision. The respondent's submissions as to whether there is an overriding public interest against disclosure of the redacted material are not strictly relevant to that review. However, as will be seen below, I have addressed these submissions in case I am wrong about the scope of the review.

APPLICABLE LEGISLATION

The object of the GIPA Act is to "is to open government information to the public" in stated ways "[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective" (GIPA Act, s 3(1)).
The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5).
A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). There is an overriding public interest against disclosure of government information 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 (GIPA Act, s 13).
The public interest considerations listed in the table contained in s 14 are the only considerations, where none of the items in Schedule 1 applies, that may be taken into account as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information (GIPA Act, s 14(2)). The public interest consideration on which the respondent relied in these proceedings is that disclosure of the information could reasonably be expected to have the effect of revealing an individual's personal information (GIPA Act, s 14, table, cl 3(a)).
As stated above, there was also an issue as to whether the respondent had undertaken a reasonable search for the information.
Under s 53(1) of the GIPA Act, 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. By s 53(2), an agency is required to 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.
In proceedings to review a decision made under the GIPA Act to refuse access to government information in response to an access application, the burden of establishing that the decision is justified lies on the agency: GIPA Act, s 105(1).
The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law.

COMMISSIONER'S EVIDENCE

The Commissioner filed a statement made by Senior Sergeant Nargis Fam, the Coordinator of the Information Access and Subpoena Unit of the NSW Police Force. Senior Sergeant Fam stated that records maintained by the New South Wales Police Force were maintained primarily on the Computerised Operational Policing System (COPS), the Police TRIM system and the FOI database. She said she had reviewed the records maintained by the Information Access and Subpoena Unit and that staff had conducted a search of the COPS system. Her evidence was that the search revealed 10 COPS events, nine of which were released to the applicant. Six of those nine events were released to the applicant in full and the remaining three were released in part, personal details of third parties being redacted. The event that was not released related to a break and enter incident where the applicant was listed as a witness. The information was therefore, in Senior Sergeant Fam's opinion, outside the ambit of the applicant's request.
Senior Sergeant Fam also gave evidence that, if the applicant was the subject of surveillance, a COPS event would have been created about the investigation of him that led to police undertaking surveillance. The search did not reveal any such investigation.
Senior Sergeant Fam said that she had undertaken the same search previously undertaken by other officers in order to ensure that documents the subject of the application were not missed. She also undertook a search of the police TRIM records and only located two entries relevant to the application. Those were provided to the applicant.

DETERMINATION

There main issue to be determined is whether the respondent has conducted a reasonable search for the information sought.

Adequacy of search

The respondent was required to undertake such reasonable searches as might be necessary to find any of the government information applied for that was held by the respondent (GIPA Act, s 53(2)).
As the respondent submitted, the decision in Shepherd and the Department of Housing, Local Government and Planning (1994) QI Cmr 7; 1 QAR 464 is a helpful guide to determining whether the search conducted was reasonable (see, for example, Beer v Commissioner of Police, NSW Police Force [2013] NSWADT 243 at [23]-[24]). In that case, the Queensland Information Commissioner said at [19] that the two questions for consideration were: "(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case."
I accept the respondent's submission that the evidence of Senior Sergeant Fam establishes that there are no reasonable grounds to believe that any information falling within the scope of the application exists. There is no evidence that the applicant is or has ever been the subject of surveillance or home detention. Nor is there any reason to believe that the Victorian police report which the applicant referred to in his application to the Tribunal would be held by the respondent.
Even if I am wrong about this, I find that the respondent's search efforts to locate the information sought have been reasonable. I accept Senior Sergeant Fam's evidence, which was not challenged, that a number of searches of different databases have been undertaken by her and other officers. I am satisfied that the respondent has conducted "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" within s 53(2) of the GIPA Act.
The respondent appeared to assume, in the submissions made to the Tribunal, that the information provided to the applicant by the respondent in response to the applicant's access application was information the subject of his application. For this reason, the respondent made submissions to the effect that personal information which had been redacted from COPS event reports was subject to an overriding public interest against disclosure.
I have examined the three COPS events, provided to the applicant, from which individuals' personal information has been redacted. One was a report about a collision between two taxis, one of which was reported to have been driven by the applicant. The others were reports of robberies which named the applicant as the victim. In my view, none of these reports is captured by the applicant's application because the information is not "any document belong to [the applicant] in regard to any surveillance or home detention against him without court decision and the reason for his punishment."
For these reasons, I affirm the decision made on behalf of the respondent on internal review that the respondent does not hold the information sought.

Public interest considerations

In case I am wrong, and the redacted information is within the scope of the applicant's access application, I will consider the respondent's further argument that this information is subject to an overriding public interest against disclosure.
The respondent submitted that the public interest considerations in favour of disclosure which were relevant to the application were 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 consideration that the information sought is the personal information of the applicant. The applicant did not identify any public interest considerations in favour of disclosure.
I accept that the first two public interest considerations in favour of disclosure which have been identified by the respondent are the considerations of most relevance to this application. I do not accept that the information sought is the applicant's personal information, for reasons I explain below.
The respondent submitted that disclosure of the redacted information could reasonably be expected to reveal an individual's personal information (GIPA Act, section 14, table item 3(a)). The respondent said that the information was provided by persons who had supplied police with information about offences that are or have been investigated by police.
I am satisfied that, if this information was captured by the access application, there would be an overriding public interest against its disclosure for reasons given by the respondent. The personal information in question includes the name of a witness to a robbery (in two cases) and the address, date of birth, phone number and other personal details of the driver involved in the accident. It could reasonably be expected that disclosure of this information to the applicant would reveal individuals' personal information.
The identity of the witness or witnesses to robberies in which the applicant is named as victim is clearly of interest to the applicant, but I do not accept that this is his "personal information". "Personal information" is defined to mean "information or an opinion … about an individual … whose identity is apparent or can reasonably be ascertained from the information or opinion" (GIPA Act, Sch 4, cl 4(1)). The name of a witness is information about the witness, but it is not, in my view, information "about" the victim of crime.
Similarly, I do not accept that the personal details of the driver of a car involved in an accident is the personal information of the driver of the car with which he collided.
Having balanced the general public interest in favour of the disclosure of government information and the general right of the public to have access to government information held by agencies against the public interest against revealing individuals' personal information, it is my view that the latter outweighs the former. The public interest in the applicant or anyone else gaining access to the kind of personal information which has been redacted is minimal whereas the public interest in protecting the confidentiality of this kind of personal information is reasonably high. Accordingly, I find that there is an overriding public interest against the disclosure of the redacted information. 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: 10 April 2015

Decisions Review Act 1997(NSW)

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Judgment (7 paragraphs)

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