Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police

Preliminary

1. The applicant's final written submissions in reply were filed and served late, in breach of the Tribunal timetable. The respondent asked that these not be taken into account. The appropriate approach would have been for the applicant's to seek an extension of the timetable, with notice to the respondent. Nevertheless, to do justice to the applicants, I have taken into account those submissions.

Background

1. The applicants' account of the relevant background to these applications for review appears at pars [6] to [17] of their submissions of 8 September 2017. I paraphrase those matters as follows.
2. At all material times the applicants were serving police officers in the NSW Police Force. They each identify as homosexual and allege that they were subjected to a false complaint and discrimination by their employer, the New South Wales Police Force. They allege that another homosexual officer's drug test result in April 2015 led Superintendent Simon Hardman, the Commander of Newtown Local Area Command, to make the false complaints that the applicants were drug users. They also believe that Superintendent Hardman fabricated evidence in support of the complaint.
3. On 21 May 2015, Superintendent Hardman completed a "triage" form which recommended a covert investigation of the applicants. The applicants submit that the only thing linking them to each other at the time was their homosexuality. Mr Housego was not an officer at Newtown Police Station at the time the complaint is alleged to have been received, but his relationship with Mr Rapisarda (his partner) resulted in the complaint including him.
4. The complaint was received by the PSC on 21 May 2015 and Strike Force Andro was formed to investigate it. Throughout that year, all the applicants were drug tested. Negative samples were provided on each occasion.
5. On about 16 November 2017, the applicants were contacted by the PSC to say they were the subject of an internal investigation, that the matters investigated were "unsustained", and that they had no case to answer.
6. The applicants, and then their lawyers, made various internal requests for the investigation files related to the original complaint. Those requests were made orally to Superintendent Hardman and in writing, initially by email and later in letters from the applicants' lawyers. Superintendent Hardman and the respondent refused to provide the investigation files or details of the complainant's identity.
7. The applicants' lawyers also raised complaints on behalf of the applicants in relation to the conduct of Superintendent Hardman and other officers at the Newtown Local Area Command. The applicants' lawyers alleged, among other matters, homophobia, bullying, misuse of public resources, misuse of public officer positions, corruption and vilification.
8. On 23 May 2016, the then Assistant Commissioner of Police, refused to investigate the conduct which gave rise to the investigation. The refusal to investigate was said to be justified by an awareness that the applicants could pursue other avenues, such as GIPA Act applications.
9. On 3 May 2016, each applicant submitted an application to the respondent seeking access to a variety of government information pursuant to the GIPA Act. Each sought access to: "a copy of investigation file (whether described as a case file, employee file or otherwise) which is designated P1501954 (or in the case of Mr Sheehy that file and also file P1600351) (or such other file number that applies to any of Rapisarda, McDonald, Sheehy and Housego (the Targets)) and which is concerned with the conduct of inquiries made into the Complaint".
10. A copy of the schedule of the documents sought, including the expanded definitions of "the Complaint" and "investigation file", are set out in Attachment A.
11. The access applications made by the applicants were all deemed to be refused on the basis that the respondent did not issue a decision or produce any documents to the applicants by 17 June 2016, being the date upon which the applications needed to be decided pursuant to the timeframes set out in the GIPA Act.
12. The applicants subsequently sought internal review of the respondent's deemed refusal decisions.
13. Between 12 August 2016 and 18 August 2016, the respondent made internal review decisions in respect of each applicant. As noted above, the respondent, provided access to some of the information sought, but refused to provide the applicants with access to several documents in their totality, and refused to provide the applicants with access to certain parts of particular documents, on the basis that there was a public interest against disclosure of the government information set out in those redacted parts.
14. None of the four applicants sought a review of the internal review decisions by the NSW Information Commissioner.
15. On 26 September 2016, each applicant filed applications with the Tribunal for external review of the respondent's internal review decisions.

Issues to be determined

1. The following issues fall to be determined in the proceedings: 1. whether there is an overriding public interest in disclosure of investigation files P1501954 and P1600351; 2. whether s 169A of the Police Act 1900 prevents disclosure of the name of the author of the complaints; 3. whether the respondent undertook reasonable searches.

Applicant's application for his counsel to be present during confidential hearing conducted pursuant to s 107 of the GIPA Act

1. During the course of the hearing, the applicants' counsel made an application that he and his instructing solicitor be allowed to be present during a confidential hearing (conducted pursuant to s 107 of the GIPA Act). The oral submissions of the parties' counsel are recorded in the transcript of 21 and 22 September 2017. In addition, the respondent relied on Black v Hunter-New England Health District [2011] NSWADT 295 and Amos v Western NSW Local Health District [2017] NSWCATAD 176. In short, the respondent relied on the word "must" appearing in s 107(3) of the GIPA Act.
2. On the other hand, the applicants submitted that the Tribunal had to receive the confidential evidence in the absence of the public "if [the Tribunal] was of the opinion that it's necessary to do so". [1] The applicants submitted while it may appropriate for members of an outlawed motorcycle gang not to know the identity of the complainant, the applicants were not common criminals. Mr Eurell for the applicants submitted that the Tribunal had to form a "value judgment" whether or not it was in the public interest to have a confidential session.
3. On 22 September 2018, I decided not to grant the applicants' application, and indicated that my written reasons would be published later. What follows are those reasons.
4. The starting point is the words of s 107 of the GIPA Act. That section provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of: (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. (emphasis added)
5. It was the respondent's application that the Tribunal receive the confidential evidence of Chief Inspector Newton in the absence of the applicants and their legal representatives. [2] That application being made, and a claim of an overriding public interest against disclosure being made, then the matter must be heard in the absence of the public, the applicants and their legal representatives.
6. Guidance is provided in the two authorities relied on by the respondent. In Black the Administrative Decisions Tribunal stated: 30 Without a procedure along the lines of section 107, the general rule of an open hearing and the open receipt of evidence would apply, which would be contrary to the objects of the GIPA Act and also render the determination of the respondent nugatory. This clearly was not the intention of Parliament. At the same time, it can be inferred that Parliament did not intend the procedure in section 107 to have a broader application other than to the 'information' that is the subject of the review application and any other information, the disclosure of which would disclose the information the subject of review. This may include information of the surrounding circumstances of the information in dispute. 31 Accordingly, the information to which subsection 107(3) applies, includes information of the kind described by the Appeal Panel in Black , but it will only apply where that evidence or argument is information, relevant to the application and which, if disclosed, will disclose the information for which there is, may be, or claimed to be an 'overriding public interest against disclosure'.
7. At [37] the Tribunal found that s 107(3) was mandatory in operation where the Tribunal formed the opinion as prescribed in that subsection; it must receive the evidence and hear argument the subject of the agency's application in the absence of the public, the applicant and the applicant's representative: also see Amos at [17].
8. I agree with the analysis of s 107(3) set out in both Black and Amos. I am of the opinion that it is necessary that part of this hearing be heard in the absence of the public, the applicants and their legal representatives so as to prevent the disclosure of information for which there is claimed to be an overriding public interest against disclosure. I reject the applicants' submissions to the contrary, and that the assistance and presence of their legal representatives is necessary for the Tribunal to be able to properly understand and scrutinise the claims being made and the evidence being given.
9. Accordingly, I refused the applicants' application.

The GIPA Act

1. The relevant provisions of the GIPA Act can be summarised as follows: 1. 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" (s 3(1)); 2. 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); 3. 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 (s 9(1)); 4. There is a general public interest in favour of the disclosure of government information (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 (s 13); 5. Where Sch 1 does not apply, the public interest considerations listed in the Table to s 14 are the only considerations, 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 (s 14(2)); 6. 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 (being, in this case, the respondent): s 105(1). 7. However, if the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.
2. In this matter, the respondent relies on the following public interest considerations set out in cll 1(d) to (h) of the Table, namely: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions, (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).
3. The term "could reasonably be expected" has been considered in a number of cases. As the Administrative Decisions Tribunal stated in Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]: The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC(1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.
4. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. Section 15 provides as follows: A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
5. Provisions of Part 8A of the Police Act 1990 are also relevant to the consideration of this application. In particular, s 169 of the Police Act provides that: 169A Identity of complainant not to be disclosed A member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made: (a) in accordance with guidelines established by the Commissioner, or (b) with the consent of the complainant, or (c) in accordance with a requirement of or made under this or any other Act, or (d) for the purposes of any legal proceedings before a court or tribunal.

The evidence of the respondent

1. The respondent relied on two affidavits of Detective Chief Inspector Stephen Newtown both sworn 25 July 2017. I shall refer to these respectively as his "open affidavit" and his "confidential affidavit".

Open affidavit

1. Chief Inspector Newton is the Professional Standards Manager of the Professional Standards Command (PSC) of the NSW Police Force. He has held that position for approximately four years. His role is to ensure that all legislative, policy and administrative obligations relating to complaint management are met for complaints about members of the NSW Police Force. PSC is the Command responsible for maintaining standards of professional conduct and discipline across the NSW Police Force. This includes the conduct of particular investigations into police misconduct, preparing policies and procedures on the management of, and investigation into, complaints and the provision of advice in relation to disciplinary action to be taken as a consequence of misconduct by members of the NSW Police Force.
2. Chief Inspector Newtown also sits on the Complaints Management Team at the PSC, as a consequence of which he has broad oversight over the management of all complaints referred to the PSC for investigation.
3. Chief Inspector Newtown states that: 1. he reviewed complaint files P1501954 and P1600351, and that there are no surveillance reports on those files, and that no surveillance was conducted of the applicants; 2. investigations under Part 8A of the Police Act are particularly sensitive, and that the PSC treats all information that it receives, including the complaint itself, and any evidence and intelligence, as strictly confidential; 3. complaints about police officers are always treated with strict confidence, and it is standard procedure for a complainant's identity to be protected from disclosure, "no matter how obvious it may be, as to reveal a complainant's identity may expose the complaint to 'pay back' or reprisal action; 4. if members of the public and the NSW Police Force employees became aware that their identities or evidence could be disclosed to the world at large this would deter them from making such complaints or providing evidence in an investigation.
4. Chief Inspector Newtown addressed each of the s 14 matters relied on by the respondent. In summary, he stated: 1. in relation to cl (1)(e), namely the revealing of a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, it is critical that members of the PSC, and the Complaints Management Team in particular, are able to have frank deliberations about police officer misconduct and the investigation of such misconduct, and that the disclosure of deliberations and decisions of the investigative arm of the NSW Police Force has the potential to diminish the effectiveness of the PSC; 2. in relation to cl (1)(h), namely the prejudicing of the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed), the disclosure of complaint information generally would have a tendency of revealing the purpose of the investigation that is being conducted and the manner in which it is being conducted; it is critical that persons are not given the opportunity to understand covert police methodology. There is a real public interest in not revealing information about the conduct of internal investigations to the world at large, so that any person can scrutinise the manner in which an investigation is conducted; 3. in relation to cl (2)(b), namely the prejudicing of the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law, investigation files P1501954 and P1600351 involved allegations that may have resulted in criminal consequences had they been substantiated, and it is critical that detailed complaint file information is not disclosed to the world at large where that disclosure may set out how the NSW Police Force goes about preventing, detecting or investigating criminal behaviour. This has ramifications for internal investigations and for criminal investigations. If the manner in which the NSW Police Force detects and investigates particular crimes, criminal enterprises will employ counter-measures to avoid detection and defeat law enforcement initiatives, which is clearly not in the public interest.
5. As the respondent correctly submits, Chief Inspector Newton's evidence was primarily directed to the existence of the public interest factors against disclosure that were relied on by the respondent in its internal review decisions, and the significance of those factors. Chief Inspector Newton was cross-examined at considerable length by Mr Eurell for the applicants. I accept the respondent's submission that:

• Chief Inspector Newton was not asked questions about the public interest factors against disclosure relied on by the respondent, which he explained in his open affidavit evidence;
• Chief Inspector Newton's affidavit evidence in Exhibit R1 was not the subject of any challenge;
• on the whole the cross-examination was irrelevant to my task, as the cross-examination focused upon factual matters that led to the creation of the documents and the truth of what was contained in those documents.

Confidential affidavit

1. Chief Inspector Newton also provided a confidential affidavit to the Tribunal. As the respondent notes in its submissions, Chief Inspector Newton set out in greater detail how the public interest principles applied more specifically to the precise information withheld from the applicants.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]

The evidence of the applicants

1. The applicants each filed a statement in their respective proceedings. These statements are in similar terms, and I will summarise the contents of Mr Rapisarda's affidavit of 14 August 2017 by way of example.
2. Mr Rapisarda is "an out homosexual man". He does not use prohibited drugs. He feels it is unsafe for him to return to work. He believes that the investigation into him using drugs was homophobic and arose simply because he is "an out homosexual man". He says that as a result of the "malicious complaint", damage has been done to his career, and he now suffers from stress, depression and anxiety.
3. Mr Rapisarda's affidavit also sets out a summary of his work history for the respondent; his associations with the other applicants and considerable detail of the drug investigation, including conversations with the officers of PSC. The affidavit includes detail of his request for the investigation files and the lead up to his commencement of claims pursuant to the Anti-Discrimination Act 1977 (NSW). Considerable evidence is given of "the culture" at Newtown Local Area Command under Superintendent Hardman. He gives many examples of what he describes as the homophobic environment and the prejudice perpetrated against him.
4. No applicant was required for cross-examination.
5. There was general agreement that much of the contents of these affidavits were irrelevant. I accept that this evidence may be relevant to workers' compensation claims against the respondent, or the ongoing claims pursuant to the Anti- Discrimination Act. However, in circumstances where my task is, in essence, to consider whether there is an overriding public interest against disclosure of investigation files of files P1501954 and P1600351, this evidence did not assist me in this task.
6. I now turn to a determination of the issues.

Whether there is an overriding public interest in disclosure of investigation files P1501954 and P1600351

1. I note at the outset that Attachments B and C to these reasons contain the two schedules prepared by the respondent (and annexed to the open affidavit) setting out the basis on which the respondent claimed that the public interest favours the non-disclosure of the information sought. As I was provided with all the documents (unredacted) confidentially, I was able to consider the claims made, as set out in Attachments B and C. In summary, I am satisfied that there is a proper basis for the respondent concluding that each of the public interest considerations stated favoured non-disclosure.
2. [NOT FOR PUBLICATION]
3. I reject the submission that it is only by examination of the files by persons such as the applicants themselves, who are sufficiently informed to scrutinise the records, that can this be determined.
4. The applicants' submit that the respondent's officers have fabricated evidence in support of a malicious complaint against the applicants, which is now sought to be covered up in order to protect those officers from being discovered to have engaged in corruption including the fabrication of evidence and the making of a false complaint. The respondent rightly submits that this submission is not supported by any evidence, save for the applicant's "say-so" in their respective affidavits.
5. Having examined the unredacted files myself, I see no material which founds the applicants' concern that the information reveals a coordinated effort by the respondent to stifle inquiry into allegations of serious corruption within the NSW Police Force. Nor does the evidence expose efforts "to shelter senior police officers who generated malicious complaints, fabricated evidence and falsified police records in order to illegally target the Applicants".
6. In any event, I accept the respondent's submission that it is not a matter for the Tribunal to be undertaking any factual inquiries about unsupported allegations of fabrication of evidence or malicious complaints. It is for the Tribunal to conduct an administrative review, and to do otherwise may amount to the proceedings being used as a vehicle for the collateral review of the merits or validity of official action: Raven v University of Sydney [2015] NSWCATAD 104 at [44] to [45]; Crewdson v Central Sydney Area Health Service [2002] NSWCA 354 at [24].
7. I find that the respondent has provided unchallenged evidence in support of the public interest factors against disclosure of the withheld information. These factors are compelling and significant, for all the reasons explained by Chief Inspector Newton. I accept the respondent's submission that the public interest grounds in favour of disclosure contended for by the applicants are speculative. That is to say, I do not accept that, as submitted by the applicants, the evidence tends to establish that the respondent's functions and investigation methodologies were infected by systemic failure and/or serious misconduct. Nor do I accept, on the evidence before me, that the applicants were "wrongfully accused by a homophobic, malicious and harmful Superintendent", or that "system failures … allowed the situation to occur".
8. I do accept the applicants' broad submissions that the public interest is better served by transparency and public scrutiny of the respondent, and that the community is entitled to know that police officers, and especially senior police officers, can be trusted not to abuse the trust reposed in them.
9. However, I find that the disclosure of these internal investigation files would prejudice the future supply of complaint information to the NSW Police Force, and prejudice the effectiveness of internal investigations into police officers in the future. I further accept the respondent's submission that workplace investigations, both in the public and private sphere, are conducted confidentially to protect complainants from reprisal and to encourage witnesses to supply information relevant to the complaint. I find that these factors are significant and warrant protection in workplace situations, but particularly in regards to the NSW Police Force, where it is desirable that complainants and witnesses can come forward with confidence that their personal details will not be disclosed, potentially exposing them to reprisal action.
10. I accept the respondent's submission that revealing to the applicants how an internal disciplinary matter is investigated is undesirable. In my view, the possible prejudice to the respondent in the exercise of its functions and conduct of its internal investigations outweighs any public interest in favour of disclosure. I accept that it is essential to the maintenance of the integrity of the NSW Police Force, and for the overall benefit of the public, that police officers do not know the internal workings of such investigations.
11. In summary, I accept the respondent's submission that Chief Inspector Newton's evidence as to the existence and operation of the public interest factors against disclosure, or the weight to be given to those factors, was not relevantly challenged in cross-examination by the applicants. In my view the statutory presumption in favour of disclosure is displaced by the public interest factors against disclosure.
12. I see no reason to set aside the respondent's internal review decisions. I am satisfied that the respondent has discharged its onus of establishing that the decision it made to withhold all of the government information it did was the correct and preferable decision.

Whether s 169A of the Police Act prevents disclosure of the name of the author of the complaints

1. One of the issues occupying some time during the hearing was whether I should order the identity of the complainant or author of the complaint to be disclosed. In summary, the applicants asserted that s 169A of the Police Act 1900 did not prevent such disclosure. That section is set out above, and relevantly provides that a member of the NSW Police Force must not disclose to any person the identity of a complainant unless the disclosure is made for the purposes of any legal proceedings before a court or tribunal (s 169A(d)).
2. The applicant submits that s 169A should not be read so as to apply to the identity of malicious complainants, and further submits that the complainant's identity is now a matter of public record.
3. The GIPA Act provides for a conclusive presumption against disclosure of the name of a complainant. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1. Schedule 1 in turn sets out in cl 1 "overriding secrecy laws" in respect of which there is overriding public interest against disclosure of information the disclosure of which is prohibited by various laws, whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence. One of the laws there set out is s 169A of the Police Act.
4. Regardless of s 169A(d) of the Police Act, on which the applicants placed emphasis in their submissions, the note to s 11 of the GIPA Act makes it plain that for overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure of the information, whereas other secrecy laws are to be taken into account as considerations against disclosure in determining whether there is an overriding public interest against disclosure.
5. While I understand that during the course of the proceedings conducted under the Anti-Discrimination Act by the applicants against the respondent the applicants are now aware of the identity of the complainant. That is irrelevant to my considerations. As the Tribunal stated in Applicants v Commissioner of Police [2015] NSWCATAD 22 at [42]: In determining this application, the Tribunal stands in the shoes of the Commissioner. Although s 169A of the Police Act 1990 does not preclude the Tribunal from disclosing the applicants' names, it provides a reason why it is desirable not to do so. The policy of s 169A appears to be to encourage persons to make complaints against police, without fear of any consequences which may follow from others knowing that they have made the complaint. Although there is an exception from the prohibition against disclosure in relation to legal proceedings, presumably so as to allow police officers to disclose a complainant's identity to a court or tribunal, this does not make it desirable to make the applicants' identity public in circumstances where the Tribunal is exercising the Commissioner's functions.
6. In my view, in the context of a review of a reviewable decision pursuant to s 101 of the GIPA Act, the name of the complainant should not be disclosed.

Whether the respondent undertook reasonable searches

1. The final issue is whether or not the respondent undertook reasonable searches. The background is as follows:
2. In respect of P1501954, the respondent made a decision under s 58(1)(b) of the GIPA Act that the following information/documents were not held by the respondent:

• any witness statement obtained in the investigation of the complaint and/or any file note concerning a conversation with the applicants or any witness;
• any notification made to the Ombudsman concerning the complaint;
• a copy of any warrant issued pursuant to the Surveillance Devices Act relating to any of the applicants;
• a copy of any warrant issued pursuant to the Telecommunications (Interception and Access) Act 1979 concerning any telecommunications service known, believed or suspected to have been used by the applicants;
• any direction or authorisation to perform physical surveillance on any of the applicants.

1. In respect of P1600351, the respondent made a decision under s 58(1)(b) of the GIPA Act that the following information/documents were not held by the agency:

• any Commander's request for assistance form concerning the complaint or the applicants;
• any notification made to the Ombudsman concerning the complaint;
• a copy of any warrant issued pursuant to the Surveillance Devices Act relating to any of the applicants;
• a copy of any warrant issued pursuant to the Telecommunications (Interception and Access) Act 1979 concerning any telecommunications service known, believed or suspected to have been used by the applicants;
• any direction or authorisation to perform physical surveillance on any of the applicants;
• any record of the conduct of surveillance of the applicants;
• any event report, case file report, intelligence report, or other electronic record contained on the Computerised Operational Policing System concerning the complaint or the investigation of the applicants.

Legislative framework and principles

1. Section 58(1)(b) of the GIPA Act provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (b) deciding that the information is not held by the agency, or
2. Section 53 of the GIPA Act specifies the searches an agency is required to undertake if it seeks to rely on s 58(1)(b) of the GIPA Act: 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.
3. In this respect, two questions are to be considered: first, whether there are reasonable grounds to believe that the requested material is held by the agency; and secondly, whether the search efforts made by the agency have been reasonable in the circumstances of the case: see Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 183 at [53], referring to Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464.
4. That decision has been followed in decisions of the Tribunal under the GIPA Act, including Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303. In another decision, Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 the Tribunal summarised the principles to be applied in addressing s 58(1)(b) as follows: 41.The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. This requires the applicant to put some credible material or submission before the Tribunal that documents of the requested kind exist. The requirement will not be satisfied by an assertion of non-compliance based on a general distrust of the agency in question: Camilleri at [13]; Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195; Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at [32]. 42.The Respondent then bears the onus of satisfying the Tribunal that the searches conducted by the Respondent were reasonable in the circumstances. In determining whether reasonable searches have been conducted, relevant considerations include "the clarity of the request, the way the agency's record keeping 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 inferred reasonably by the agency from any other information supplied by the applicant": Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30].

Consideration

1. The applicants ask in par [67] of their submissions of 24 January 2018 for orders that the respondent search for further documents that have not been identified. They list a number of indicia which they submit demonstrates an inadequate search. These indicia include an absence of minutes of meetings of the Complaints Management Team during the investigation period.
2. In assessing whether or not an agency is correctly asserting that it does not hold documents: All that the tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches.... see Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52 (referred to in Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 at [51]).
3. Chief Inspector Newton gave evidence regarding the reasonable searches that the respondent undertook for the information requested by the applicants. He was cross-examined at length, and his evidence regarding the searches the respondent undertook, and the reasonableness of those searches, was not the subject of challenge by the applicants. The applicants provided no evidence to cast doubt upon the reasonableness of the searches conducted by the respondent. They state in their submissions that they have identified missing documents, but I understand this to be simply an assertion that those documents are in fact missing.
4. The respondent accepts that there was a document, being a notification to the NSW Ombudsman about the complaint, which should have been provided pursuant to s 53(e) of the GIPA Act. However, that document has now been released to the applicants. Otherwise, the respondent relies on Chief Inspector Newton's sworn evidence that no such documents exist.
5. In my view, on the evidence before me, the searches undertaken by the respondent were consistent with its obligations under s 53 of the GIPA Act. I find therefore that the searches undertaken by the respondent were reasonable. As I noted earlier in these reasons, I accept Chief Inspector Newton's evidence and there was no aspect of his cross-examination which causes me to doubt his evidence.
6. In relation to investigation file P1600351, I note that in par [33] of the applicants' submissions of 28 February 2018 it is stated that (what is defined in par [32]) as the "Surveillance device complaint document) should have been provided to the Tribunal. It is submitted that that document records a false allegation that an illegal recording existed that had been heard by a workers compensation investigator.
7. On the basis of the uncontested evidence before me in relation to this issue I am not satisfied that any order should be made in relation to this document.

Other

1. The respondent has foreshadowed an application for costs. The respondent is to file and serve submissions on or before16 April 2018, with the applicants responding on or before 1 May 2018.
2. My preliminary view is that the question of costs should be determined "on the papers", and without a further hearing. However, if either party considers it appropriate for a hearing to be held on the issue of costs, their submissions should address that issue.

Order

1. For the foregoing reasons, the correct and preferable decision is that the respondent's internal review decisions be affirmed. The orders of the Tribunal therefore are: 1. In proceedings 2016/00378368: 1. the internal review decision of the respondent of 12 August 2016 is affirmed; and 2. the internal review decision of the respondent of 17 August 2016 is affirmed; 1. In proceedings 2016/00378369, the internal review decision of the respondent of 18 August 2016 is affirmed; 2. In proceedings 2016/00378371, the internal review decision of the respondent of 17 August 2016 is affirmed; 3. In proceedings 2016/00378372, the internal review decision of the respondent of 16 August 2016 is affirmed. 4. The respondent is to file and serve submissions on costs on or before 16 April 2018. 5. The applicants are to respond on or before 1 May 2018.

Attachment A Schedule of Documents GIPA Applications of Rapisarda, McDonald, Sheehy and Housego A copy of investigation file (whether described as a case file, employee file or otherwise) which is designated P1501954 (or in the case of Mr Sheehy that file and also the file P1600351) (or such other file number that applies to any of Rapisarda, McDonald, Sheehy and Housego (the Targets)) and which is concerned with the conduct of inquiries made into the Complaint. In this request the following meanings apply: "the Targets" means Steven Rapisarda, Shane Housego, Christopher Sheehy and Christian McDonald. "the Complaint" means the information which was relied upon as the basis for the investigation into the Targets conducted by or with the assistance of the Professional Standards Command concerning the alleged use of prohibited drugs. "an investigator" means any sworn or civilian employee of the New South Wales Police Service who was involved in making any inquiry arising from the Complaint whether attached to the Professional Standards Command, Newtown Local Area Command or otherwise. "investigation file" includes (but is not limited to) the following documents (whether in electronic format or hard copy): a. Any record of the Complaint (whether made in accordance with Part 8A of the Police Act 1990 (NSW) or otherwise, and whether contained in a notebook, duty book or other printed format, or whether contained in an auditory format; b. Any witness statement obtained in the course of the investigation into the Complaint; c. The Triage Form(s) concerning the Complaint (as referred to in the Complaint Handling Guide and Policy Note on 'How to submit a request for assistance'); d. The CARA Part A (as referred to in the Complaint Handling Guide and Policy Note on "How to submit a request for assistance'); e. The CARA Part B (as referred to in the Complaint Handling Guide and Policy Note on 'How to submit a request for assistance'); f. Any Commander's Request For Assistance Form(s) (as referred to in the Complaint Handling Guide and Policy Note on 'How to submit a request for assistance') which concerns the Complaint or the Targets; g. Any Notification made to Ombudsman concerning the Complaint; h. Any Investigator Allocation concerning inquiries into the Complaint; i. Any record containing the terms of reference of any Strike Force established to investigate the Complaint or the Targets; j. Any request or authorization to perform drug testing on the Targets; k. A copy of any Investigators Note (whether contained on C(q)ts.i or otherwise); I. A copy of any File Note concerning any conversation with the Targets or any Witness; m. A copy of any Interim or Final Report investigators report; n. A copy of any warrant issued pursuant to the Surveillance Devices Act 2007 (NSW) relating to any of the Targets; o. A copy of any warrant issued pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) concerning any telecommunications service known, believed or suspected to have been used by the Targets; p. Any direction or authorization to perform physical surveillance on any of the Targets, q. Any record of the conduct of surveillance of the Targets, whether described as a Surveillance Log, Investigators Note, or otherwise, r. Any Event Report, Casefile Report, Intelligence Report, or other electronic record contained on the Computerised Operational Policing System (COPS) concerning the Complaint or the investigation of the Targets. Attachment B GIPA 136062 : SCHEDULE OF DOCUMENTS : Complaint P1501954 IAU reference Applicant reference Document description Disclosed or Refused T=Section 14 Table 1-35 a, c, d, f, h Triage Stage Notification: Complaint P1501954: Refused in part 22 May 2015. Folios 6-10, 16-19, 23, 26-35 refused in full. T1(d), T1(e), T1(f),T1(h),T2(b), T3(a), Schedule 1(1 )(1) 36 a Email: Matter accepted as a PSC led investigation Refused in part T3(a), Schedule 1(1 )(1) 37-39 i Terms of reference: P1501954: Dated 21 Sept 2015 Refused in part. T3(a), s74 40 a Professional Standards Command: CMT Minutes: P1501954: 28 January 2016: Not applicant Refused in full T3(a), Schedule 1(1 )(1) 41 a Professional Standards Command: CMT Minutes: P1501954: 28 January 2016: McDonald Released in part T3(a), Schedule 1(1 )(1) 42 a Professional Standards Command: CMT Minutes: P1501954: 28 January 2016: Not applicant Refused in part. T3(a) Schedule 1(1)(1) 43 a Professional Standards Command: CMT Minutes: P1501954: 28 January 2016: Not applicant Refused in part T3(a), Schedule 1(1 )(1) 44-52 a, m Professional Standards Command: Investigator's Report: P1501954: Not applicant Refused in full T3(a), Schedule 1(1 )(1) Released in part 53 a,j Professional Standards Command: Drug test result: Not applicant T1(e), T1(f), T1(h), T2(b), Sch1(1)(1) Released in part 54-63 a, k, m Professional Standards Command: Investigator's Report: P1501954: McDonald T1(e), T1(f), T1(h), T2(b), Sch1(1)(1) 64 a,j Professional Standards Command: Drug test result: McDonald Released in full 65-73 a, k, m Professional Standards Command: Investigator's Report: P1501954: Not applicant Refused in part T3(a), Schedule 1(1 )(1) 74 a.j Professional Standards Command: Drug test result: Not applicant Refused in full T3(a) 75-83 a, k, m Professional Standards Command: Investigator's Report: P1501954: Not applicant Refused in full T3(a), Sch1(1)(1) 84 a.j Professional Standards Command: Drug test result: Not applicant Refused in full T3(a), Sch1(1)(1) Refused in full 85-90 a Behavioural observations of subject officers T1(e), T1(f),T1(h), T2(b), Sch1(1)(1) 91-94 a File Note: Analysis of subject officers communications Refused in full T1(h), T2(b),T3(a) 95-102 a File Note and log: Leave taken by subject officers Refused in full T1(e), T1(h), T2(b), T3(a) Refused in full 103-139 a Extract: Leave request book T1(e), T1(f), T1(h), T2(b), T3(a) Refused in full 140-142 a File note: Leave taken by subject staff T1(h), T2(b), T3(a), Sch1(1)(1) 143-147 a Leave/shift requests: Not applicant Refused in full. T3(a) 148 k Email of transmittal to PIC that investigation is complete: 10 Feb 2016 Disclosed in full ■ n Copy of any warrants issued pursuant to the Telecommunications (Interception & Access) Act 1979 Cth relating to McDonald and this GIPA application Nil find s58(1)(b) ■ 0 Warrant issued pursuant to the Telecommunications (Interception & Access) Act 1979 Cth re any telecommunications service known, believed or suspected to have been used by McDonald Nil find s58(1)(b) ■ P Any direction or authorisation to perform physical surveillance in McDonald Nil find s58(1)(b) ■ q Any record of surveillance on McDonald Nil find. s58(1)(b) ■ r Any COPS record concerning this complaint re McDonald Nil find. s58(1)(b) ■ b, I Any witness statement or target statement Nil find. s58(1)(b) Notification to Ombudsman. ■ g This is an automated advice giving the Ombudsman online access Nil find s58(1)(b) to Police files. There is no specific document created.

Attachment C GIPA 136060 : SCHEDULE OF DOCUMENTS : Complaint P1600351 IAU reference Applicant reference Document description Disclosed or Refused T=Section 14 Table 1-4 c Triage form: P1600351: Dated 22 Jan 2016 Refused in part T3(a), Schedule 1(1) 5-8 i Terms of reference: P1600351: Dated 15 Feb 2016 and 17 Feb 2016 Refused in part T3(a), Schedule 1, T2(a),T2(b),T3(a). Schedule 111)0) Refused In part 21-29 m Professional Standards Command: investigator's Report: P1600351 T1(d),T1(e),T1{0,T1(g), T2(a),T2(b),T3(a), Schedule 1(1)(1) Refused in full 30-36 b, I Witness statement: 15 Jan 2016 T1(g),T3(a), Schedule 1(1)(1) 37-41 b.l Witness statement: 11 Jan 2016 Refused in full T1(d),T1(a) 42-47 a Extracts from the Surveillance Devices Act 2007 NSW Disclosed in full Refused in full 48-50 b,l Witness statement 17 February 2016 T1(d),T1(e),T1(f),T2(a), TZ(b).T3(a), Schedule 1(1)<1) 51 a Letter from Inspector Hansen to Sheeny: 31 March 2016 Disclosed in full 52 a Email: Allocation of investigator: 20 Jan 2016 Disclosed in full 53 a Email: Transmittal of investigation papers to Sgt Volpe: 22 Jan 2016 Disclosed in full 54 a Email: Organisation of the investigation: P1600351: 25 Jan 2016 Refused in full T1(e).T1(f),T1(h), T2{b), T3(a). Schedule 1(1)(1) 55 a Email: Organisation of the investigation: P1600351: 15 Feb 2016 Refused in full T1(e),T1(f),T1(h), T2(b),T3(a), Schedule 1(1)0) 56 a Email: Organisation of the investigation: P1600351: 16 Feb 2016 Refused in full T1(e),T1(f).T1(h), TZ(b),T3(a), Schedule 1(1)(1) Refused in full 57 a Email: Organisation of the investigation: P1600351: 16 Feb 2016 T1Cd),T1(e),T1(f),T1(h), T2(b), T3(a) Refused in full 58 a Email: Organisation of the investigation: P1600351: 17 Feb 2016 T1{d),T1(e),T1(f).T1(h), T2(b),T3(a) Refused in full 59 a Email: Organisation of the investigation: P1600351: 17 Feb 2016 T1(e),T1(f),T1(h), T2{a),T2(b),T3(a), Schedule 1(1 )(1) Refused in full 60 a Email: Organisation of the investigation: P1600351: 17 Feb 2016 T1{d),T1(e),T1(f),T1(h), T2(a).T2(b),T3Ca). Refused in full 61 a Email: Organisation of the investigation: P1600351: 18 Feb 2016 T1{d),T1(e),T1(f),T1(h), T2(a).T2(b),T3(a),

Endnotes

1. Transcript, 21 September 2017, line 18
2. Transcript, 22 September 2017, line 18 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 March 2018