Turner v Commissioner of Police, NSW Police Force

Access request 126432

1. In his request for access received by the respondent on 5 September 2014, numbered 126432, Mr Turner requested access to material identified in five parts. Part 1 included: (a)Report taken by Bathurst Police March 2010 at Bathurst Correction centre from Donovan Turner, to Wellington CC incident February 2010; also request of the reports taken from staff by police. (b)All material held by NSW Police Corrective Services Investigation Unit concerning report taken approx. September 2010 at Bathurst Correctional centre in respect to Wellington CC 2010 incident. Also request the reports taken from staff/witnesses by police. (c)All material held by NSW Police Force in respect to being denied entry to Bathurst Correctional Centre to take report from inmate Donovan Turner 2010/2011. Also request the reports taken from staff by police.
2. Paragraphs 1(d)-(n), and part 3, requested access to material relating to events in 2012-2014 at other locations not relevant to the present application. Part 2 requested disclosure "of all material and information to" seven specified Event Numbers, including E399998875.
3. Part 4 requested: Request disclosure of all material rightfully owed to Applicant held by NSW Police - under GIPA Act 2009.
4. Part 5 requested disclosure of material relating to Crime Stoppers calls.
5. On 13 November 2014 Ms L Trost, a review officer in the respondent's Information Access & Subpoena Unit, requested the applicant to amend or refine the application to more manageable proportions. On 18 November 2014 Mr Turner responded, stating that he disagreed with the demand, requesting that the respondent disclose information, and that he did not wish to reduce the items requested for disclosure as it was necessary as evidence for an appeal to the Court of Criminal Appeal and Tribunal lodgements and for the Federal Courts.
6. On 13 January 2015 the respondent provided notice of a "late decision", advising that processing the application would amount to a diversion of resources that would adversely monopolise the resources of the agency, and refused access pursuant to s 60(1)(a) of the GIPA Act.
7. On 19 February 2015 the Information Commissioner recommended that the respondent reconsider its decision by way of an internal review, because the decision did not provide sufficient details to justify the decision to refuse to deal with the application and because the initial response from the respondent raised questions that went to the validity of the application.
8. On 18 May 2015 the respondent notified Mr Turner of its "supplementary decision". In relation to parts 1(a) and (c), COPS Event numbers E39998875 and E41038227 were released in full. For part 1(b), the determination relied on s 58(1)(b), stating: Advice received indicates that all documentation relating to this incident is held by NSW Department of Corrective Services and all enquiries should be directed to them.
9. Further comment on the s 58(1)(b) determination, which covered paragraph 1(b) and five other paragraphs in part 1, was: In accordance with the provisions of section 53(2) this agency has undertaken such reasonable searches as necessary to attempt to locate the government information you seek access to. I conducted extensive searches on COPS and referred to the iCOPS list of events linked to Mr Turner's name in attempt to identify the events requested. There were no matching events located. In relation to statements requested - COPS events which contain wording similar to "record only" have no statements attached to them. Unfortunately, notwithstanding the searches made by this agency, no records have been identified that fall within the ambit of your request. In view of the fact that the information sought is not held by this agency, your are so advised in accordance with Section 58(1)(b) of the Act.
10. In relation to part 4, the respondent referred to s 60(1)(a), commenting: Clarification of this point was requested and the applicant declined to refine this point. To establish what documents might be "owed" to the applicant searches would need to be conducted involving all documentation relating to any contact Mr Turner may have had with the NSW Police Force since 1991 which is the first recorded mention on COPS, as well as re-examining all Freedom of Information and GIPA applications which exceed 16 applications. To conduct computer searches and manual searches of all records and systems held by this agency over a number of local area commands or units would amount to a substantial and unreasonable diversion of resources.
11. Mr Turner applied to the Tribunal for review of the determination of access request 126432 (NCAT matter 1510057). The substantive matter was heard on 16 September and 12 October 2015 by another member of the Tribunal, and the decision is reserved.

Legislation

1. The object of the GIPA Act is specified in s 3: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. "Government information" means information contained in a record held by an agency: s 4(1). Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
3. Section 41(1) provides: 41 How to make an access application (1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the formal requirements) for access applications: (a) it must be in writing sent to or lodged at an office of the agency concerned, (b) it must clearly indicate that it is an access application made under this Act, (c) it must be accompanied by a fee of $30, (d) it must state a postal address as the address for correspondence in connection with the application, (e) it must include such information as is reasonably necessary to enable the government information applied for to be identified.
4. Section 58 provides: 58 How applications are decided (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.
5. Section 60 provides: 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989, (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note. See section 70. (d)the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order. (2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided. (3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications. (4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application. (5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal. (6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
6. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1).

Submissions

1. The respondent submits that whatever shortcomings there may have been with an agency's determination of the earlier request, that is not relevant in consideration of the application of s 60(1)(b) of the GIPA Act to the present request. The earlier request was broad, and to the extent to which particulars are provided in request 128633 they are subsumed in the previous broad request 126432, and the decision then was that the information was not held by the agency. The reference to "material" in part 1(b) is not intended to exclude CCTV or other recording. There is nothing to indicate that a different decision would be made. In relation to the material requested in paragraph (d), the respondent submits that the present application is invalid, or that s 60(1)(b) applies.
2. In his written submissions Mr Turner states that the information sought is in relation to a violent assault by correctional staff at Wellington CC, and that the NSW Police Force IASU has tampered with and concealed evidence relating to investigations held at the Wellington CC and Bathurst CC in 2010. He asserts a number of contraventions by the respondent and its officers of provisions of the Civil and Administrative Tribunal Act 2013 (NSW), and contraventions of other legislation by other agencies including Corrective Services NSW and Justice Health, in relation to the handling and production of records. In oral submissions addressing s 60(1)(b) of the GIPA Act, Mr Turner submits that paragraph 1(b) of the access request specifically identifies the people from whom reports would have been obtained, for example the reference to "psychologist(s)", consistent with the entry in the police notebook (ex A). Paragraph 1(d) is not the same information as earlier decisions. The agency has disclosed no information at all for the earlier requests, and has never addressed the paragraph 1(c) request. There is a history of the respondent holding material under a number of different files. The reference in the respondent's written submissions at [2.11] to an incident at Bathurst CC is wrong as the incident in question occurred at Wellington CC. He has not been provided with a copy of the final report outside the Tribunal processes, and while he has received a copy of a report by "Barbara Andrews", she was not the relevant person. He disputes that the respondent needed any further information to identify the material sought, and that the application in relation to paragraph 1(d) is not valid. He disputes that Corrective Services NSW can hold CCTV footage that the NSW Police Force does not also hold, as the footage should be available to the Police and retained by them.

Consideration

1. Section 60(1)(b) of the GIPA Act has two elements: whether the agency has already decided a previous application for the information concerned in the present application, or information that is substantially the same as that information; and secondly, whether there are reasonable grounds for believing that the agency would make a different decision on the application.

Paragraphs 1(a) and (b)

1. Paragraphs 1(a) and (b) of access request 128633 identify the relevant locations and times of the incident at Wellington CC and investigation; refer to both Bathurst Police and to the Corrective Services Investigation Unit of Corrective Services NSW; and list the persons potentially investigated or questioned in relation to those events. Those persons include staff identified both by name and position, and inmates.
2. Paragraphs 1(a), (b) and (c) of access request 126432 are expressed in different terms, however those paragraphs also identify the relevant locations and times of the incident and investigation, include both Bathurst Police and the CSIU, and refer to both staff and "witnesses". While that access request does not identify the staff or other persons investigated or questioned in the detail provided in paragraph 1(b) of the present request, I am satisfied that the terms "staff" and "witnesses" in paragraphs 1(a), (b) and (c) of access request 126432 are sufficiently broad include those persons.
3. Having compared the two access applications, I am satisfied that the information sought in paragraphs 1(a) and (b) of the present application is substantially the same as that in the access application 126432.
4. The respondent determined access request 126432 in relation to paragraphs 1(a), (b) and (c) by releasing in full three COPS Event Number reports, and deciding that it did not hold any other information, relying on s 58(1)(b) of the GIPA Act. In responding to the present access application, the respondent also decided that the information was not held by the agency, relying on s 58(1)(b) of the GIPA Act. I am satisfied that in relation to paragraphs 1(a) and (b) of the present access request there are no reasonable grounds for believing that the agency would make a different decision on the present application. Both elements of s 60(1)(b) of the GIPA Act are established for the request in paragraphs 1(a) and (b) of the present application.

Paragraph 1(c)

1. Paragraph 1(c) is a request for "all CCTV, cell, cam recorder footage" in relation to the 2010 investigation. Access request 126432 requested access to "all material", referring in paragraphs 1(a), (b) and (c) of that request of references to "reports" taken from staff/witnesses by police. The respondent submits that information in the form of visual or other recordings would be included in the request for access to "all material" in the previous request. I am not satisfied that access request 126432 should be read so as to include a request for access to information in the form of visual recordings, but rather the request for access to "all material", supplemented by reference to "reports", would appear to be a request for material in a documentary form. That interpretation of the request is consistent with the response to paragraph 1(b) of access request 126432 in the notice of the supplementary decision dated 18 May 2015 which states in part "Advice received indicates that all documentation relating to this incident ...". I am not persuaded that the agency has already decided a previous application for the information as identified in paragraph 1(c) of access request 128633. Accordingly, s 60(1)(b) does not apply to that part of the present access application.
2. The respondent referred in submissions to two previous decisions relating to requests for access to information from Corrective Services NSW, Turner v Corrective Services NSW [2013] NSWADT 39, Turner v Corrective Services NSW (No 2) [2013] NSWADT 232. The access application the subject of those decisions included requests for access to camera, CCTV and observation footage of Mr Turner at Wellington and Bathurst Correctional Centres in 2010. In Turner v Corrective Services NSW (No 2) [2013] NSWADT 232, Senior Member Montgomery considered (at [37]-[41]) the evidence as to collection and storage of CCTV footage at Wellington and Bathurst Correction Centres, and found (at [42]) that no footage other than that in three identified videos was held by the respondent in those proceedings. Senior Member Montgomery directed that the respondent was to provide Mr Turner with a reasonable opportunity to inspect the footage of those videos. Those findings relate to the respondent in those proceedings, Corrective Services NSW, and do not address whether information in the form requested in paragraph 1(c) of the present access application may be held by the respondent in these proceedings.

Paragraph 1(d)

1. Paragraph 1(d) of the present application requests access to "all documents, reports, records and any other things rightfully owed laws". In responding to paragraph 1(d) of the present application, the respondent initially relied on s 58(1)(b) of the Act, and, after review by the Information Commissioner, subsequently determined that that part of the access request was invalid. In the notice of determination of 11 November 2015 the respondent interpreted paragraph 1(d) to be, by reference to s 3 of the GIPA Act and the definition of "record" in cl 10 of Sch1 to the GIPA Act, a request for "records", and stated that the request was very broad and must be refined or further clarified to make it clear what records are requested.
2. In submitting that that part of the access application was not a valid application, the respondent relied on Cunliffe v Darkinjung Local Aboriginal Land Council [2010] NSWADT 55 and Cunliffe v Darkinjung Local Aboriginal Land Council (GD) [2010] NSWADTAP 77, decisions of the former Administrative Decisions Tribunal. After refinement, the request for access had included a request for access to documents in which specified individuals had communicated "which impute" that the applicant or another person may have acted in specified ways. The respondent agency asserted that part of the request was not a valid request, relying on s 17(d) of the Freedom of Information Act 1989 ("the FOI Act"), which specified that an application for access to an agency's document shall "contain such information as is reasonably necessary to enable the document to be identified". Then Judicial Member Montgomery held that part of the request remained in a form that required the agency to exercise a subjective value judgment in identifying relevant documents, and in his view, "section 17 of the FOI Act does not require any agency to undertake such a task": Cunliffe v Darkinjung Local Aboriginal Land Council [2010] NSWADT 55 at [33]. An appeal against that decision was dismissed: Cunliffe v Darkinjung Local Aboriginal Land Council (GD) [2010] NSWADTAP 77. The Appeal Panel commented that that part of the request: 21.…required the actioning officer to engage in a distillation of a large body of material and bring to it subjective judgements as to what fell inside and outside the scope of the request, for example, which words and which sentences in long documents carried an imputation of discreditable conduct
3. The Appeal Panel held: 29 Paragraph (d) uses words of an ordinary kind in an ordinary sense. They leave the officer, and the Tribunal on review, to make a judgement of a broad, discretionary kind as to whether the information given was such as was 'reasonably necessary … to identify' the documents sought. In our view, the emphasis on 'identification' informs the approach to be taken to what is ultimately a discretionary evaluation.
4. The request in paragraph 1(d) of access request 128633 would not appear to raise the same concerns as those in the evaluative task identified in Cunliffe. The agency is not being asked to make subjective judgments as to which parts of the material held by the agency carry, in the context of the facts of that case, a particular imputation. The terms of the request are instead so broad that it could be read, as noted in the letter of 11 November 2015, to cover documents sought in the present application or previous applications, or all information that Mr Turner would be entitled to, at least at the date of the application. It is not clear on the evidence before me what advice the respondent received from the Information Commissioner in that regard, as the review report tendered as part of exhibit 1 appears to relate to a different application, numbered 128632.
5. However, it is not necessary to determine whether the respondent's decision that part of access application 128633 in paragraph 1(d) was not a valid access application was correct, or whether the respondent complied with its obligations under s 52(1)(c) of the GIPA Act in responding to it. The alternative submission put by the respondent was that s 60(1)(b) would also apply to this part of the access request. The respondent's determination dealing with that part of the access application in paragraph 1(d) in the new decision dated 11 November 2015 was not to deal with the application, and to request that a new application be made. The respondent had previously refused to deal with that part of access request 126432 in part 4, in which Mr Turner requested access to "all material" rightfully owed. On a comparison of the two access requests, I am satisfied that the information the subject of the request in paragraph 1(d) is substantially the same as that in part 4 of access request 126432. The respondent refused to deal with part 4 of access request 126432, relying on s 60(1)(a) of the GIPA Act, and referring to Mr Turner's refusal to clarify the request. While the specific basis for the refusal differs, the substantive outcome for both access applications is the same, as the respondent has refused to deal with that part of the access request.

Further progress of the matter

1. Paragraphs 1(a), (b) and (d) of access request 128633 request access to information the same or substantially the same as that in parts 1(a),(b), (c) and 4 of access request 126432, and the respondent's decision was the same as for that earlier application, namely to refuse to deal with those parts of the application. I am satisfied that s 60(1)(b) of the GIPA Act applies, so as to enable the agency to refuse to deal with those parts of the present access application. The respondent submits that if that conclusion were reached, the appropriate course would be to affirm its decision to refuse to deal with the application. Mr Turner opposed such an outcome, submitting that his request for access should not be refused again.
2. Mr Turner has exercised his right to seek review of the respondent's determination of access application 126432. The reconsideration of the matters arising under paragraphs 1(a), (b) and (d) of the present access application would require duplication of the time and resources for the parties and the Tribunal already committed to the review relating to access request 126432. In those circumstances, there is no utility in further dealing with the matters arising under paragraphs 1(a), (b) and (d) of the present application that will be addressed in the decision on the review in Tribunal matter 1510057. The appropriate course is to affirm the agency's determination in relation to paragraphs 1(a), (b) and (d).
3. For the reasons in paragraph [34], I am not satisfied that the agency's decision to refuse to deal with that part of access request 128633 in paragraph 1(c) relying on s 60(1)(b) of the GIPA Act was correct. The alternative basis for refusal, namely s 58(1)(b) of the GIPA Act, needs to be considered.

Orders 1. The decision is affirmed with the exception of the determination relating to paragraph 1(c) of access request 128633. 2. The matter is listed at 4.15 pm on Thursday, 13 October 2016 for directions for provision of any further evidence and/or submissions addressing the respondent's determination in relation to paragraph 1(c) of the access application under review. 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: 07 October 2016