On 19 October 2021, Mr Donald Suttor ("the applicant") lodged with the Tribunal an application for administrative review of a decision made by the Commissioner of Police ("the respondent") on 11 October 2021. The decision concerns an access application for information pursuant to the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). In short, the applicant is not satisfied that the respondent has disclosed information about the use of body worn video (BWV) by police officer, Sergeant White.
The proceedings were first listed for determination on 7 March 2022. However, due to a witness of the respondent, Mr David Williams, only being able to participate in the hearing by telephone and not by AVL, the applicant sought an adjournment, which was not opposed. I allowed the adjournment and note that at the time of the hearing Mr Williams was in an area of Sydney which was flood affected. He made his best efforts to participate in the hearing by telephone. I decided the matter should be adjourned to allow Mr Williams to participate in the hearing by AVL, and also at a time when he was not dealing with the effects of the NSW floods. The matter was re-listed on 24 March 2022.
[2]
Background
On 29 July 2021, the respondent received an access application from the applicant seeking:
BMV Metadata record for each of the named officers SRG Michael White, CST Brittney Fordham, SNR CST Golding, SNR CST Wallace, CSX Hanley (all of Bathurst Police station/Chiffley [sic] command) FOR the entire shift these police officers were working starting 08/5/20 to end of shift 09/5/20.
On 27 July 2021, the respondent made a decision about the access application as follows:
1. Confirmed, pursuant to s 53(2) of the GIPA Act, that reasonable searches were undertaken to locate the requested information. Specifically, that an information search request was sent to Chifley Police District;
2. decided, pursuant to section 58(1)(a) of the GIPA Act, to grant the applicant access to three (3) documents containing information relating to Constable Hanley, Constable Fordham and Sergeant White. Documents produced evidenced that Constable Hanley and Senior Constable Golding were assigned Body Worn Video (BWV) cameras on 8 and 9 May 2020 and that Sergeant White was assigned a BWV camera on 9 May 2020; and
3. decided, pursuant to section 58(1)(b) of the GIPA Act, to refuse the applicant access to BWV Metadata for Senior Constable Golding and Sergeant Wallace on the basis that the requested information was not held by the NSW Police Force. Specifically, on the basis that the Digital Technology & Innovation (DTI) had advised that there was no metadata available for Senior Constable Golding and Sergeant Wallace as they did not have a BWW camera issued to them during the requested date and time period.
On 28 July 2021, the applicant applied to the NSW Information and Privacy Commissioner (IPC) for external review of the respondent's decision under section 13 of the GIPA Act.
The applicant made the following contentions in his application for external review:
"I was advised that Golding and Wallace were not equipped and NIL data existed.
However the remaining 3 were equipped and the Metadata reports were provided. For officers Hanley and Fordham the provided report spanned the 2 days as requested and the report deary shows activity from 8/5/20 to 9/5/20 for both officers.
HOWEVER, the report for Sargeant Michael White only shows activity for 9/5/20. This report is incomplete - the requested activity on the 8/5/20 is missing. There is some notation that Sargeant White was only equipped from 00 38am on 9/5/20. This was not the start of his shift, this is when he was at 19 Lord street."
On 29 September 2021, the IPC made a decision and concluded that the respondent had undertaken reasonable searches and that she did not hold the requested metadata.
On 1 October 2021, the applicant applied to the Tribunal received for administrative review of the respondent's decision. The applicant's grounds for review are as follows:
REF GiPAA-2021-0058456 Notice of Decision 27/7/2021 AND IPC REF
1PC21/R0058456 dated 29/9/2021 but only received by myself 11/10/21.
The original GIPA application requested Body Worn Video (BWV) Metadata records for 5 Police officers from Chiffley Command Bathurst; Namely Officers Sgt Michael White, SC Golding, SC Wallace, Cst Britney For22 dham and Cst Hanley for the Period 8/5/20 to 9/5/20 inclusive No documentation was provided for Officers Golding and Wallace. I was just advised that these officers were not equipped with BWV and the Agency does not hold the requested information. I believe the agency should have provided the Metadata report for these officers showing Nil Activity and would like the assistance of NCAT to have the agency produce these reports.
But specifically in relation to Sgt Michael White a report was provided but only for a search period of 9/5/20 to 9/5/20. The request was 8/5/20 to 9/5/20 inclusive. I asked the IPC to review the decision and I advised them that the document provided was incomplete and lacking the search results for the 8/5/20. Whoever responded from Bathurst police to the IPC claimed "that the search terms were identical for each officer, including the date range of 8 and 9 May" - this is FALSE and the search field can be dearly seen to only show 9/5/20 to 9/5/20 in the case of Sgt White. The information I am seeking and I believe the agency holds is a BWV Metadata report showing a search field 8/5/20 to 9/5/20 for Sgt White. / Note that the agency was able to provide the same requested report spanning the 2 days for st Fordham and Cst Hanley.
On 22 November 2021, the Tribunal ordered the respondent to provide to the applicant a further search report indicating that the search be undertaken for the requested information for the period 8 May 2020 to 9 May 2020. On 23 November 2021, the applicant wrote to the respondent further clarifying the information sought.
On 9 December 2021, the respondent provided the applicant with a further document containing BWV Metadata of Sergeant White.
On 9 December 2021, the applicant replied to the respondent's further searches, indicating he was not satisfied with the search.
On 10 December 2021, the respondent provided the applicant with a further document containing BWV Metadata of Sergeant White. The respondent provided the following further information by way of explanation of the additional information disclosed:
1. Page 1 of the document shows the Officer Activities for Sergeant White for the dates 1 January 2018 to 12 August 2021. This has been done to show the dates that Sergeant White had used been equipped with a BWV camera. As is clearly evident, in accordance with your Application, the only relevant date that Sergeant White was only equipped with a BWV camera was on 9 May 2020 from 12.38AM to 9 May 2.29AM. He was not equipped with a BWV camera on 8 May 2020. The only other dates Sergeant White was equipped with a BWV camera prior to and before the 9 May 2020 was 30 April 2020 and 5 June 2020.
2.Pages 2 to 3 of the document is the metadata for the BWV camera on the dates of 8 May 2020 to 9 May 2020. This log shows the dates and times that the BWV camera was active, irrespective of who was using the BWV camera. The data on this log shows the power on, start of recording and the times when the recording stopped. Referring back to page 1, the highlighted events are the events that correspond to the date and times that Sergeant White had been equipped with the BWV camera. All other events on this log relate to other Police Officers who had been assigned the same camera on the dates 8 May 2020 and 9 May 2020.
3.Page 4 of the document is the metadata for the BWV camera whilst it was in the possession of Sergeant White. Regarding your request for a document showing Sergeant White's full shift - we do not have this document. Sergeant White was rostered for 12 hours from 7am, 8 May 2020 to 7pm, 9 May 2020. The only time Sergeant White had been equipped with a BWV camera during that shirt was on 9 May 2020 from 12.38AM to 9 May 2.29AM.
On 10 December 2021, the applicant noted that he was requesting a single report of BWV metadata worn by Sergeant White for period dated 8 May 2020 to 9 May 2020 and was otherwise not satisfied with the search.
On 13 December 2021, the respondent replied to the applicant attaching a copy of BWV Camera metadata for BWV Camera B8790, as worn by Sergeant White on 9 May 2020. The respondent provided the following additional information:
As shown on page 1, "Officer Activities" for the period 1 January 2018 to 12 December 2021 which details the times Sergeant White was equipped with a BU camera, it is clearly shown that Sergeant White was only equipped with a BWV camera on 9 May 2020. Prior to that, it was 30 April 2020 and thereafter, 5 June 2020.
On page 2 of the document shows the metadata for events recorded on the BWV camera with Device Serial Number B8790. The dates of 8 May 2020 to 9 May 2020 are clearly seen in the search range. The location, "Taree" has been highlighted because the BWV camera is now being used in the Taree region. The system reflects the current location of the BWV camera.
Pages 3 and 4 show the entirety of the log for the dates 8 May 2020 to 9 May 2020. The highlighted entries are the ones that correspond with the times that Sergeant White had actually been equipped with the BWV camera.
Page 5 is the record of "Officer Activities" for the dates 8 May 2020 to 9 May 2020 and what camera an officer has checked in an out according to the date. The date range specified Is 8 May 2020 to 9 May 2020 and the BWV camera is B8790. On the left side of the page you can see that Sergeant White was equipped with the BWV camera on 9 May 2020 for two (2) hours. Prior to that, another officer was equipped with the camera for two (2) hours and this is the same for a different officer who was equipped with the same BWV camera on 9 May 2020 after Sergeant White. The names of the two officers have been redacted as their names are not relevant to your application.
The total time the BWV camera officers had been equipped with the B8790 BWV camera for the dates 8 May 2020 to 9 May 2020 is showing as eleven (11) hours cumulative.
On 13 December 2021, the applicant said he was not satisfied with the search and information disclosed.
[3]
Scope of review
The decision under review is the respondent's decision to refuse access on the basis that it does not hold the metadata relating to Sergeant White, for the date 8 May 2020 (the requested metadata).
[4]
Relevant legislation
The object of the GIPA Act as set out in s 3 is 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.
It is not disputed that the information the subject of this application is government information that is held by an agency: s 4(1) of the GIPA Act.
There is a presumption in favour of the disclosure of government information unless there is an "overriding public interest against disclosure": s 5 of the GIPA Act. 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) of the GIPA Act.
There is a general public interest in favour of disclosure of government information: s 12(1) of the GIPA Act. Examples of public interest considerations in favour of disclosure, which are not limited, are provided in a Note to s 12.
The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure:
13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act 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.
The public interest considerations against disclosure are set out in a Table in s 14 of the GIPA Act, and as relevant to this review are discussed below.
The determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles set out in s 15 of the GIPA Act which provides as follows:
15 Principles that apply to public interest determination
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.
In determining whether there is an overriding public interest against disclosure of government information, the personal factors of the applicant may be taken into account: s 55 of the GIPA Act. Those factors are the applicant's identity and relationship with any other person, the applicant's motives for making the access application, and any other factors particular to the applicant.
In responding to an access application there is a requirement for the agency, in this case the respondent, to undertake reasonable searches to locate information sought in the request which is held by the agency. Section 53 of the GIPA Act provides:
53 Searches for information held by agency
(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.
(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
Following that process, the agency can do any of the following as provided for by s 58 of the GIPA Act:
(1) An agency decides an access application for government information by -
(a) deciding to provide access to the information, or
(b) deciding that the information is not held by the agency, or
(c) deciding that the information is already available to the applicant (see section 59), or
(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or
(e) deciding to refuse to deal with the application (see section 60), or
(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.
Note : These decisions are reviewable under Part 5.
(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.
(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.
Disclosure of information in response to an access application cannot be made subject to any conditions on the use or disclosure of the information: s 73 of the GIPA Act.
In determining an application for administrative review, the Tribunal is to consider s 63 of the Administrative Decisions Review Act 1997 (NSW), which provides:
63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
There is no dispute that the Tribunal has jurisdiction to hear this application. Section 100 of the GIPA Act enlivens that jurisdiction.
[5]
Evidence
The parties filed a joint bundle of documents. Mr David Williams gave evidence and was cross-examined.
[6]
My consideration
The law in terms of what constitutes a sufficient search is settled. In Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5, the Tribunal found at [10]:
What constitutes a sufficient search has been considered by the Tribunal in a number of cases. In Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], the President said that the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning ( 1994) 1 QAR 464, should be adopted in addressing sufficiency of search issues. In Shepherd the Information Commissioner said at [19] that there were 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.'
The ultimate issue for the Tribunal to determine is whether the agency' conclusion that it does not hold the documents sought by the applicant, is sound (see - Smith v Commissioner of Police [2012] NSWADT 85).
The key factors to be considered in assessing whether a sufficient search had been carried out were discussed in Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30].
30 What constitutes a 'sufficient search' will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant.
What constitutes a sufficient search will vary with the circumstances of each matter and depends upon the agency to whom the access application is made and on what terms it is made.
The respondent must show what steps were taken to satisfy the Tribunal whether a reasonable search has been undertaken. In Stanley v Roads and Maritime Services [2014] NSWCATAD 123, the following was said:
When any reviewable decision under the GIPA Act is being reviewed, the burden of justifying the decision is placed by s 105 on the agency in question. In this case the applicant has raised the issue of the sufficiency of the search undertaken by the respondent. It is for the respondent to show what steps were taken in the search for information falling within the scope of the access application and to satisfy the tribunal that those steps were reasonable and sufficient.
The respondent concedes that the first limb in Camilleri (whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency) has been met.
In respect of the second limb (whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances…) the respondent contends that reasonable efforts to search for the information requested have been made. I also find that reasonable searches have been made. My reasons for that conclusion follow.
[7]
Evidence of David Lindsay Williams
Mr David William affirmed an affidavit on 8 February 2022. He supplemented his evidence in chief and was cross-examined. Mr Williams is a BWV Technical Specialist, with the Investigative Support Systems of the NSW Police Force. He has been employed with NSW Police for 22 years. Mr Williams has been in his current role for 8 years. His responsibilities and duties include installation, repair and maintenance of BWV Cameras, kiosks which store BWV cameras and servers throughout NSW. Also, he provides technical support to frontline NSW Police officers in relation to video files and the downloads for BWV. I am satisfied he is a sufficiently qualified witness. Indeed, his credentials and experience were not challenged in cross-examination.
Mr Williams explained how BWV cameras are used by frontline police officers. That included the way BWV cameras are registered through 'kiosks' in police stations and how police officers obtain, use and return BWV cameras. He explained how metadata was captured when BWV cameras were checked in and out of kiosks by police officers and how metadata is recorded on the police servers during that process.
In short, metadata is the electronic fingerprint of any electronic device. In respect of BWV cameras, when you turn the device on or off, a record is kept - that is the metadata. Metadata is also recorded when a BWV camera is taken out of and returned to a kiosk, when the camera starts and when it stops recording.
Metadata for the NSW Police Force is stored at a central server at NSW Police headquarters in Parramatta. It is replicated at the Police centre in Sydney. Only two to three senior employees within NSW Police had access to metadata, including Mr Williams. An individual police officer only has access to their video recordings, and not the metadata. This is the reason why Mr Williams in his searches accessed two applications to complete his reporting about the search results concerning the access request. One application searched was for video footage, the other is for metadata.
Sergeant White is allocated a unique number (N34319) that is recorded in the servers to track his metadata for BWV and BWV cameras. It is this unique number that Mr Williams used to search NSW Police records in response to the access request. On entering search parameters for Sergeant White for 8 May 2020, the results showed that no BWV camera was checked out by him that day.
[8]
Searches undertaken by Mr Williams
As part of the access request Mr Williams undertook a number of searches of the BWV Database in order to extract BWV metadata responsive to the access application. Mr Williams described the searches which he conducted. This included using a variety of search terms, including a search by date or date ranges, a search of a specific MAC Address/Device Serial Number and a search of a specific police officer registration number, including Sergeant White's unique number.
Following searches of the BWV Database, Mr William's concluded that Sergeant White was not allocated a BWV device on 8 May 2020. Mr William's annexed to his affidavit a copy of the search results from the BWV Database for devices allocated to Sergeant White for the period from 8 May 2020 to 9 May 2020. Those results recorded the following:
(a) during the period of 8 May 2020 to 9 May 2020, Sergeant White (Rego Number
n34319) had a BWV device allocated to him on 9 May 2020;
(b) the BWV device allocated to Sergeant White had the unique MAC Address
14:6B:9C:4E:09:57 - Device Serial Number NSWPBWV-B2152; 12.
38A
(c) the BWV device was checked out of the kiosk at 12:35AM on 9 May 2020 and returned to the kiosk at 2:29AM on 9 May 2020;
(d) video content was recorded on the BWV device on 9 May 2020 starting 01:41:36 and concluding 9 May 2020 at 01:43:14 (approximately 2 minutes);
(e) the video content was not retained (that is, it was not tagged to an Event in the COPS database).
Mr Williams also searched the BWV Database for the BWV device with the unique MAC Address of 14:6B:9C:4E:09:57- Device Serial Number NSWPBWV-B8790. The search indicated that the BWV device was in use but by different officers at a different Command.
Mr Williams explained that all BWV Cameras have unique MAC Address, sometimes called a Registration number. The BWV camera in question originally had the serial number B2152 printed on it and was assigned to Bathurst Police Station. He said that at some stage the camera case was damaged and he sent the camera to the Vendor for it to be replaced. Upon the Camera being returned to his unit, it had a new case/cover with a serial number B8790 printed on it. As a result, when he undertook a search of the Camera with MAC Address 14:6B:9C:4E:09:57, serial number B8790 is displayed. He said this camera is now assigned to the Taree Police Station.
[9]
Cross-examination of Mr Williams
The applicant explored in cross-examination how the system records metadata if a camera is swapped by officers in the field, and where a different officer checks in and out a BWV camera. The following exchange took place.
Q: What happens if you check out and in a camera immediately, would they get a different camera or the same camera?
A: It may give you same camera if it has the highest battery.
Q: Is it possible another officer can check in a device that someone else has checked out?
A: Yes, but when they check it in… If Officer A takes out a camera and it is checked in by Officer B, Officer B can elect to take the files or send them back to Officer A (but only a Sgt can check in the camera).
…
Q: Did Sergeant White check in or out a camera on the 8th?
A: No
Q: Could Sergeant White have checked out a camera on the 8th and given to another officer to check in?
No, the file would show he checked it out.
I accept Mr William's evidence that there is no metadata held by the respondent indicating that Sergeant White checked in or out a BWV camera on 8 May 2020. Despite a detailed cross-examination by the applicant, Mr William's evidence was left largely intact. I find Mr Williams to be an honest and reliable witness.
[10]
Submissions of the respondent
The respondent contends that the searches undertaken by Mr Williams in response to the access application are sufficient and they constitute a reasonable search. Mr William's evidence demonstrates that the metadata records cannot be filtered. To the best of his knowledge and conducting more that twenty four searches there is no metadata for Sergeant White on 8 May 2020.
The respondent contends that the onus under s 53 of the GIPA Act has been discharged. The evidence reveals that information (the metadata for Sergeant White on 8 May 2020) sought by the applicant cannot be located because it does not exist.
In the circumstances, the decision of the respondent should be affirmed.
[11]
Submissions of the applicant
The applicant contends that the police have been less than co-operative with his request. He believes that another BWV camera was returned to the kiosk by Sergeant White. I find that the applicant suspects this to be so, but, he has not proven it to be a fact.
The applicant submitted that during the entire access application request, the police have "come up with a lot of misleading information in processing the application." He provided examples of this in receiving new information all the way through the process.
The applicant said he saw the BWV camera on Sergeant White when he was arrested. While he accepts the police have carried out searches as he has requested, he said "I think the police have been very unreasonable in their searches. In the scope the GIPA, it would require some other search to be done if a camera had been exchanged to another officer. I still suggest the evidence shows that Sergeant White did have a camera on 8 May and he signed it over to another officer." I asked the applicant where is the evidence about this. He said, "I can't direct you to any, this is what is suspect." I reject the submission that the evidence shows that Sergeant White had a BWV camera on 8 May and he signed it over to another officer. This is because the evidence of Mr William's does not support a finding that Sergeant White had a camera on 8 May 2020 and that he signed it over to another officer. If he did, I accept Mr William's evidence that there would be metadata available. It is not.
[12]
Conclusion
As conceded by the respondent, I accept there are reasonable grounds to believe that the respondent would have BWV metadata concerning Sergeant White use of a BWV camera on 8 May 2020.
Given this finding, I am required to determine whether the search efforts made by the respondent to locate that metadata have been reasonable in all the circumstances. For the following reasons, I find that have been reasonable searches undertaken by the respondent in answer to the access request.
Based on Mr William's experience as a Technical Specialist attached to the NSWPF's Investigative Support Systems unit, he concluded that there is no metadata indicating that Sergeant White had a BWV device allocated to him on 8 May 2020. This is because the searches undertaken reveal that no metadata was created relating to Sergeant White having a BWV device on 8 May 2020.
After he conducted searches for metadata during the period from 8 May 2020 to 9 May 2020, the records indicate that Sergeant White was equipped with a BWV camera (Device Serial Number NSWPBWV-B1252) on 9 May 2020 for a period of two (2) hours from 12.35AM to 2.29AM only. There is no record identified in the searches revealing otherwise.
Mr Williams evidence satisfies me that respondent has a sound recordkeeping system which is organised and Mr Williams had the ability to search for and retrieve any metadata that is the subject of the applicant's access request. Indeed he undertook the searches identified in paragraph [45] above. In doing so he has referenced the identifier of Sergeant White, his unique number and the date of 8 May 2020 as supplied by the applicant. The parameters searched would reveal, if it was held by the respondent, metadata which could identify whether Sergeant White was issued, and used a BWV camera on 8 May 2020. The searches did not reveal that he did. I am satisfied that the searches are reasonable and that the respondent has discharges its onus as required by s 53 of the GIPA Act.
I accept Mr William's evidence that the last date Sergeant White was assigned a BWV camera before 9 Mary 2020 was on 30 April 2020 and 5 June 2020.
I find that the reasonable conclusion to be reached is that the respondent does not hold the documents sought by the applicant. This is because it has undertaken sufficient and reasonable searches to locate the information sought in the access request.
It follows that the decision under review is to be affirmed.
[13]
Orders
1. The decision made by the respondent on 11 October 2021 is affirmed.
[14]
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: 30 September 2022