Turner v Commissioner of Police, NSW Police Force

Applicable legislation

1. The object of the GIPA Act is specified in section 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: section 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 12 of the GIPA Act provides for public interest considerations in favour of disclosure as follows: 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. 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. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies.
4. Section 14 of the GIPA Act provides: 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
5. Clause 1(f) of the Table to section 14 provides: 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): … (f) prejudice the effective exercise by an agency of the agency's functions ...
6. Clause 3(a) of the Table to section 14 provides: 3 Individual rights, judicial processes and natural justice 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: (a) reveal an individual's personal information, ...
7. 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.
8. 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.
9. In order to determine whether the Respondent has located all of the information falling within the scope of the access application it is necessary to consider the steps taken to locate the requested information and whether the Respondent has satisfied its obligations under section 53 of the GIPA Act.
10. 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.
11. 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.
12. 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: section 105(1).
13. The Applicant has also raises the question of whether the Tribunal should take action under section 112 of the GIPA Act. Section 112 provides: 112 Report on improper conduct If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.

Issues before the Tribunal

1. The Applicant raised several issues in relation to the lack of information that the Respondent has located and released.
2. It is apparent that the Applicant's concerns in relation to the Respondent extend much further than can be addressed under the GIPA Act. The Tribunal has no jurisdiction to consider many issues that he has raised. For example he has raised issues relating to the unwillingness of Police to accept information and act on evidence that he had given them. He also alleges data tampering, the concealing of evidence and withholding of evidence at his trial. He also raised concerns about inconsistencies between information about particular events (e.g. the date of an event or the names of Police Officers who attended a particular incident) that is contained in documents that have been released and his own records of the event. In that regard, much of the material that he has presented to the Tribunal is not relevant to the issues to be determined.
3. The GIPA is not concerned with the accuracy of the information contained in a document that has been released. Further, as Senior Member Lucy noted at paragraph [45] of her decision in Raven v The University of Sydney [2015] NSWCATAD 104 "proceedings under the GIPA Act, like those under the former Freedom of Information Act 1989 (NSW), should not be used "as a vehicle for the collateral review of the merits or validity of official action" (Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [24])".
4. However, the Applicant has also raised the issue of the adequacy of the searches that were undertaken and whether or not other information should have been located.
5. In my view these issues require the Tribunal to determine: (a) whether the Respondent has undertake reasonable searches for the requested information; and (b) whether the Respondent's decision to redact information from that which has been released is the correct and preferable decision; and (c) whether the Respondent's decision to refuse to deal with aspects of the access application is the correct and preferable decision.

Reasonable searches

1. The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. In Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, the Queensland Information Commissioner outlined a two-stage approach to the question of what constitutes an adequate search: (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.
2. The decision in Shepherd has been followed in a number of decisions under the GIPA Act. I considered this in Mino v Legal Aid NSW [2015] NSWCATAD 245 at paragraphs [24] - [35].
3. The Tribunal must form a view as to whether or not there may be some further records relevant to the application and, if so, whether the effort that the Respondent made to find them was sufficient.
4. The first question therefore, is whether there are reasonable grounds for believing that there are additional documents. In this matter the Applicant has raised concerns about the adequacy of the searches and he has suggested other searches that might have revealed further records relevant to the application.

The material before the Tribunal

1. The Respondent relies on the evidence of Ms Trost - a Review Officer attached to the Respondent's Information Access and Subpoena Unit. She has dealt with 14 out of 16 of the Applicant's access applications. Ms Trost provided a statement and appeared at the hearing and was cross-examined. The Respondent also relies on the evidence of Ms Lynne Wicks. Ms Wicks is the Intelligence Analyst of PoliceLink Command ("PoliceLink"). PoliceLink is a unit within the NSW Police Force that deals with Crime Stoppers and keeps Crime Stoppers records.
2. The Respondent has also provided written and oral submissions.
3. The Applicant did not file any statements but relies on a significant amount of material that has been filed and served and he also relies on his own written and oral submissions.
4. In these reasons I have referred to specific evidence and submissions relied on by each of the parties. However I do not refer to all of the parties' material. I have had regard to all of the evidence and submissions, including material that I do not refer to in these reasons.

Information Reports and COPS Events

1. As noted above, Ms Trost determined the access application. She provided evidence in regard to the searches that she carried out. In her statement she outlined the steps that she took in relation to the request. These included: Using the Applicant's full name to search COPS for records related to the incidents and Correctional Centres that were the subject of the request; telephone and email enquiries with the Respondent's Corrective Services Investigation Unit ("CSIU") to seek any information or reports created by them in respect of the identified incidents. She was informed that the unit does not always create a COPS Report for such an investigation. If a report is provided to the governor or other representative of the correctional facility the investigation then becomes an internal investigation under the jurisdiction of the NSW Department of Corrective Services. The CSIU does not have any oversight over this investigation and as a result does not hold any additional information; telephone contact with the Duty Officer of Maroubra Police Station to ascertain whether they possessed additional information relevant to this aspect of the request. She was informed that no COPS Report could be located relevant to the request; telephone contact with the Duty Officer of Rose Bay Police Station to ascertain whether they possessed additional information relevant to this aspect of the request. She was informed that no COPS Report could be located relevant to the request; telephone contact with the Duty Officer of Junee Police Station to ascertain whether they possessed additional information relevant to this aspect of the request. She was informed that no officer had attended, or had been denied entry into Junee Correctional Centre in relation an incident involving the Applicant in 2012; telephone contact with the Duty Officer of Cooma Police Station to ascertain whether they possessed additional information relevant to this aspect of the request. She was informed that no officer had attended, or had been denied entry into Cooma Correctional Centre in relation an incident involving the Applicant in July/August 2014
2. In her statement Ms Trost referred to the Applicant's request for information concerning Information Reports and COPS Events. She stated at paragraph [23] of her statement: 23. Application request Point 5 - any disclosable material associated to reports taken by Police; and any denied contact by Crime Stoppers for Police to attend correctional centre(s) to take reports a. In responding to Mr Turner's requests under Point 5, I undertook searches of the NSW Police Force Intelligence Information System on COPS. I identified three relevant records (147205714, I43952688 and 142012785), and provided the Information Reports to Mr Turner in the Supplementary Notice of Decision, at pages 19-26 of the attached material. b. I also provided three NSWPF COPs Event reports (E47010813, E104619901 and E38672968) as part of the Supplementary Notice of Decision that were identified in response to the Application. c. These Information Reports and COPS Events have been redacted in part. There are two reasons for doing so. The first is to protect the personal information of an individual under section 14, clause 3(a) of the GIPA Act. The Act expresses that there is a public interest consideration against the disclosure of information where an individual's personal information may be disseminated. d. The information redacted under Table 14 Clause T3(a) in the three Information Reports is personal information of third parties because the information contains the names or personal contact details of Corrective Services staff. e. The information redacted under Table 14 Clause T3(a) in the three COPS Events is also personal information of unrelated third parties, specifically of individuals involved in incidents relating to Mr Turner whilst he was in custody. f. The second is pursuant to section 14 clause 1 (f) of the GIPA Act. I am of the view that there is an overriding public interest against disclosing the material that has been redacted from the Information Reports. These intelligence reports are disseminated by Intelligence Analysts to specialist units and interested and/or involved LACs within COPS. These reports regularly contain highly sensitive and confidential information about NSWPF practices and how police discharge their duties. g. It is the standard practice of the IASU to redact the names of individuals and teams found in such reports when responding to a GIPA application. This is to prevent damage to agency operations by not revealing the methods and procedures used by police, and to safeguard sensitive information. As a result I redacted the reports provided to Mr Turner because of the overriding public interest against disclosure as outlined in the GIPA Act.
3. In relation to the redacted information from the located reports and events, Ms Trost deleted internal administrative information which identifies the use to which the information has been put within the agency. For example, details regarding who had viewed the information or who within the New South Wales Police had been forwarded a copy of this particular information report. This might identify "receiving parties details" and "reviewing officer" i.e. references to officers within police who received the report and who was forwarded the report. This information was removed because it might reveal how police officers find out information and maintain their flows of intelligence.
4. The Respondent relies on clause 1(f) of the table to section 14 of the GIPA Act on the basis that release of the redacted information would prejudice the effective exercise of the agency's functions.
5. The considerations in favour of release set out in section 12 of the GIPA Act are relevant. The clause 1(f) considerations must be weighed against the considerations in favour of release.

Could reasonably be expected

1. The requirement, common to all the public interest considerations against disclosure in the Table to section 14, is that disclosure could reasonably be expected to have the nominated effect.
2. The phrase could reasonably be expected to has been the subject of judicial consideration with respect to its use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). The words in the phrase are to be given their ordinary meaning. In Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190, Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
3. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at 106.
4. Therefore with respect to each public interest consideration against disclosure upon which it relies, the Respondent is to show that disclosure of the information could reasonably be expected to have the nominated effect.
5. I have examined unredacted versions of the documents that were released and I am satisfied that the Respondent has accurately described the redacted information.
6. I am satisfied that the redaction which identifies the use to which the information has been put within the agency is justified. When the considerations in favour and against release of the information are weighed, I accept that the consideration against release set out clause 1(f), I am satisfied that there is an overriding public interest against disclosure of the information that has been redacted from those Information Reports and COPS Events that have been released.
7. However, in relation to the redacted information concerning individuals involved in incidents relating to the Applicant whilst he was in custody, I do not agree with the determination to the extent that the information that has been redacted is information provided by the Applicant to the Respondent.
8. I agree that redacted information is personal information of the identified individuals. However, the question arises as to whether or not the withheld information has already been disclosed to the Applicant. To the extent that the Applicant was involved in the incident that is the subject of the entry, he would be aware of what transpired.
9. Schedule 4 to the GIPA Act provides these definitions: "disclose" information includes make information available and release or provide access to information. "reveal" information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).
10. In my view that the factors relied on by the Respondent in relation to the information that has already been revealed to the Applicant cannot outweigh the factors in favour of release.
11. Disclosure of information that has already been revealed to the Applicant could not reasonably be expected to have the nominated effect. It follows that the information that the Applicant provided should be released.
12. In regard to the searches that were undertaken, it is apparent that Ms Trost narrowly construed the scope of the Applicant's request and as a consequence she only located Information Reports and COPS Events. However, the request goes further than just the Information Reports and COPS Events.
13. The Applicant's request concerning Police attendances at various Correctional Centres is broad. In my view the request is for all material held by NSW Police that relates to the particular attendance. It is not merely a request for Information Reports and COPS Events. The Applicant sought material that relates to those Reports and Events. For example, he is seeking statements, records of Crime Stoppers calls and any other information concerning those Reports and Events.
14. It is possible that other information is held even if no Information Reports or COPS Events were created for the attendance. A narrow search would not reveal the existence of other information.
15. In my view, where the Applicant has provided dates and times and locations of a particular attendance by Police officers, it is reasonable to expect that a search will be undertaken for records that relate to the attendance. It is not sufficient to merely search for Information Reports and COPS Events. Nor is it sufficient to simply have a conversation with the duty officer at a particular station and rely on their recollection without requesting that they undertake a thorough search for records.

Crime Stoppers information

1. In her statement Ms Trost referred to the Applicant's request for Crime Stoppers information. She stated: a. I am aware that Mr Turner, in his previous applications, has requested copies of all documentation relating to telephone calls placed by him to Crime Stoppers. ... b. Mr Turner has requested records relating to Crime Stoppers in either identical or very similar terms in a number of previous access applications dealt with by NSWPF: (i) in Mr Turner's access application dated 11 October 2010 (IAU Reference 102023), he requested correspondence records between himself and Crime Stoppers; (ii) in Mr Turner's access application (IAU Reference 102435), Mr Turner again requested information concerning telephone calls Mr Turner made to Crime Stoppers; (iii) in Mr Turner's access application (IAU Reference 111488), Mr Turner requested transcripts of his telephone calls to Crime Stoppers. c. I am aware that in respect of each application, Mr Turner was informed that Crime Stoppers do not record telephone conversations, and that as a result no records were held or kept by them in regards to him or any other individual who makes a telephone call to Crime Stoppers.
2. It appears from this evidence that Ms Trost had also interpreted this aspect of the Applicant's request narrowly i.e. as a request for a recording of the Crime Stopper telephone conversations. However, it is apparent from the access application that he sought "of ALL records, material and information to Crime Stoppers call(s) made 2007 - 2014" … This is a much broader request than a request for recordings of the Crime Stopper telephone conversations. Ms Trost's own evidence reveals that she was aware of this broader scope of the request.
3. It is not in dispute that some Crime Stoppers records were subsequently located and these were provided to the Applicant with minor redactions of information concerning the operators who actually created the record. The Respondent contends that the redactions are warranted because of the way that the intelligence is handled and the public interest factors against disclosure outweigh the presumption for disclosure. I do not understand the Applicant to be seeking that information.
4. The fact that Crime Stoppers records were located raises questions in relation to the extent to which information is retained in regard to Crime Stoppers calls and why the information that has been located was not located when Ms Trost undertook her initial search.
5. In her evidence before the Tribunal Ms Trost stated that she had spoken with PoliceLink at least four times in relation to the Applicant's access applications indicating that she had been asked for Crime Stoppers phone calls. She said that the persons that she originally spoke to about the issue, Paul Reason and Inspector Barry Powter, have retired. The person who she has spoken to subsequently is Ms Wicks. Ms Trost's evidence was that: after the first time I said, "As I understand, Crime Stoppers phone calls are not recorded," and that was confirmed as being correct, that there is no file kept on people who phone Crime Stoppers, so that even if I ring up and say, "I am Jane Bloggs," they're not going to create a file called Jane Bloggs. The only way if the caller indicates that they wish to either provide further information to Crime Stoppers, as it is the system set up for the public to provide confidential information to police on a wide range of matters. If they wish to provide further information, they would be given an identification number for their phone call, and if they wanted to provide further information, they should quote that identification number, and that is the only way that a call can be searched for within the Crime Stoppers system.
6. In regard to the question of whether or not it would be possible to obtain Crime Stoppers records without the case number Ms Trost said: I did ask that question, and I was told it was almost impossible without spending several days having to go back and look through every record that had been created like this, but without the number, because I was led to believe that these pages are filed under the reference number, so that if you don't have the number to go to, it's then literally going through every call that came in that was - that had some information taken from them to try and identify. … - the identification numbers have never been provided to us until after the planning meeting. In some instances, there was a date range of the phone calls.
7. It is apparent that the Applicant's name appears in the Crime Stoppers records that have been identified. However, Ms Trost said that the information that PoliceLink gave her was that it is not possible to simply undertake a word search e.g. with the Applicant's name.
8. Ms Trost said that she has never been provided with any other Crime Stopper numbers that she could use as the basis of a request for a search of the Crime Stoppers data base. She also said that dates and times are not suitable for searching the way Crime Stoppers file their information.
9. The advice that Ms Trost was given was incorrect. I raised this as an issue because it seemed improbable that it would not be possible to search for Crime Stoppers data without an identification number.
10. In my view, an officer who is determining an access application should not merely accept advice that they are given at face value when common sense would suggest that the advice is incorrect. Ms Trost should have sought clarification in regard to the capacity for a key word search of the Crime Stoppers database. She accepted without question the information that she was given by PoliceLink in regard to what searches could be undertaken of the Crime Stoppers records. The result of this approach was that searches were simply not undertaken.
11. The Respondent ultimately provided contradictory evidence in regard to the capacity to search the Crime Stoppers records. Ms Wicks provided a statement and explained: The 'Crime Stoppers Code' reference number provided to a person who makes a call to Crime Stoppers is one method by which to search Police Link records created by Crime Stoppers operators. The 'Crime Stoppers Code' reference is generated by a Customer Relations Management System (CRM). The CRM is also searchable by the date the record of the call was created in CRM, and/or a key word which has been recorded by the Crime Stoppers call taker in the CRM narrative. It is not possible to search the CRM based on the caller's name as Crime Stoppers (sic). As Crime Stoppers provides customers with anonymity, there is no data field within the CRM record to record the caller's name and/or contact details. There is no requirement for callers to provide their name or their contact details. However, if the caller provides their name or other identifying details and these are captured in the narrative of the record, which may be located via a narrative a key word search.
12. In response to that evidence, the Applicant asserted that he had provided the Respondent with dates, times, cards, event numbers and references in regard to his contact with Crime Stoppers. He identified several Crime Stoppers calls that he made for which no information has been disclosed.

The Decision to refuse to deal with the application

1. As noted, Ms Trost determined to refuse to deal with point 5 of the Applicant's access application on the basis that the Respondent had already decided a previous application for the information concerned, pursuant to section 60(1)(b) of the GIPA Act; and that there are no reasonable grounds for believing that the agency would make a different decision on the application. For the reasons explained above, I do not agree with that view.
2. In light of the additional information that has been provided to the Tribunal, it is likely that a different decision will be made. Section 60(1)(b) of the GIPA Act is therefore not applicable.

Unreasonable and substantial diversion of the Respondent's resources

1. Section 53(5) of the GIPA Act provides that an agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources. An access applicant has a statutory right to access government information and the discretions given to an agency are be exercised so as to promote the objects of the GIPA Act. The power of an agency to refuse to deal with an application is a powerful one, and should only be used as a last resort after making every attempt to assist an applicant to narrow their request.
2. The Respondent refused to deal with point 4 of the Applicant's access application on the basis that to do so would be an unreasonable and substantial diversion of the Respondent resources, pursuant to section 60(1)(a) of the GIPA Act.
3. Point 4 of the access application requested: disclosure of all material rightfully owed to Applicant held by NSW Police - under GIPA Act 2009
4. The Applicant declined the Respondent's request to clarify and refine this point. The Respondent contends that in order to establish what documents might be 'owed' to the Applicant searches would need to be conducted involving all documentation relating to any contact that the Applicant may have had with the agency, as well as re-examining all Freedom of Information and GIPA applications that he has made.
5. The Respondent contends that the necessary searches and consideration would amount to a substantial and unreasonable diversion of this agency's resources.
6. In Cianfrano v Premier's Department [2006] NSWADT 137 at paragraphs [62] - [63] O'Connor DCJ identified considerations relevant to the assessment of whether or not a request under the Freedom of Information Act 1989 was likely to constitute an unreasonable and substantial diversion of resources for the purposes of that Act. He stated: 62 As I see it, the factors that are relevant to an assessment of the kind required by this case, include: (a) the terms of the request, especially whether it is of a global kind or generally expressed request; and in that regard do the terms of the request offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort' (see Rowlands P in [Re Borthwick and University of Melbourne (1985) 1 VAR 33] at 35) (b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort (see further Rowlands P in Re Borthwick) (c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOI applications (d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application (f) the time lines binding on the agency (in New South Wales as compared to other jurisdictions they are quite tight, for example, 21 days to respond to a request, 14 days to respond to an internal review request, as compared to 45 days and 14 days respectively in Victoria) (g) the indication that is found in the Annual Report reporting requirements suggesting that requests involving more than 40 hours' work are seen as lying at the upper end of the range; suggesting at least that the view of government administrators is that a processing time that goes well beyond 40 hours may properly raise concerns (h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made (i) possibly, the extent to which the applicant is a repeat applicant to the agency in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application may have been adequately met by those previous applications. 63 This is, of course, not intended, in any way, to be an exhaustive list of possible considerations.
7. In Colefax v Department of Education and Communities No 2 [2013] NSWADT 130, Judicial Member Molony confirmed that the considerations identified in Cianfrano remained relevant to the assessment to be performed under section 60(1)(a) of the GIPA Act.
8. In my view, the terms of Point 4 of the access application do not offer a 'sufficiently precise description to permit an agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort'. I note that the Applicant has attempted to narrow the scope of the request but it remains very broad. In these circumstances I agree that the Respondent was justified in its decision to refuse to deal with point 4 of the Applicant's access application.

Detective Sergeant McMaugh's email

1. In her statement Ms Trost referred to a document identified as falling within the scope of the Applicant's request for information concerning a report taken at Bathurst Correctional Centre regarding an incident at Wellington Correctional Centre. The document is an email dated 13 November 2014 from Detective Sergeant Peter McMaugh, a member of the Respondent's Corrective Services Investigation Unit, to Ms Trost.
2. Ms Trost stated: On 13 November 2014, I made telephone and email enquiries with the NSWPF Corrective Services Investigation Unit (CSIU) to seek any information or reports created by them in respect of the incident in 2010. I was informed that the usual procedure for the unit is to conduct a preliminary investigation into an incident that occurs in a NSW correctional facility. I was informed that the unit does not always create a COPS Report for such an investigation. I was informed that following the preliminary investigation, the unit will provide a report to the governor or other representative of the correctional facility. The investigation then becomes an internal investigation under the jurisdiction of the NSW Department of Corrective Services (Corrective Services). Corrective Services become solely responsible for any further investigation, and any records which the CSIU hold in relation to a preliminary investigation they conducted are provided to Corrective Services. The CSIU does not have any oversight over this investigation and as a result does not hold any additional information relevant to request part 1(b). Attached to this statement and marked "Annexure K" is a copy of an email from Detective Sergeant Peter McMaugh, a member of the CSIU. This email confirms the information sought by Mr Turner is held by Corrective Services, and not NSWPF. I was also informed that the CSIU has a very strict tenure of three years of service before an officer will be transferred out of the unit. As such, I formed the view that any officer responding to the incident at Bathurst Correctional Centre in approximately September 2010 would no longer be with the unit, and could not assist in providing information relevant to Mr Turner's Application.
3. In the email Detective Sergeant McMaugh referred to a document that he created in relation to the incident while he was on secondment to Corrective Services NSW. He indicated his view that the Respondent did not "own" the document and could not release it. He did not indicate one way or the other whether the Respondent holds a copy of the document.
4. Ms Thangasamy indicated that Detective Sergeant McMaugh had written a report in relation to an investigation conducted by Detective Sergeant Palmer, and provided that report to Corrective Services on behalf of Detective Sergeant Palmer.
5. There is no evidence before me to suggest what, if any searches were undertaken to locate the report. If the Respondent holds a copy of the report, it is appropriate that it determine whether or not the report should be released.
6. That determination has not been carried out. In my view it is appropriate that the Respondent undertake that process.

Information that has not been located

1. It appears that much of the information that the Applicant has sought relates to records that he believes should have been created and should exist unless they have been destroyed. For example, when Police officers attended in relation to a particular incident at Parklea in 2014, he asked to make a formal statement but his request was denied. The Respondent did not locate information related to that aspect of the access application. However, the Applicant contends that there should have been notebook entries or some record maintained in relation to that attendance by police. He provided specific details in relation to the attendance that should allow additional searches to be undertaken.
2. He also contends that statements were made by his aunt and his cousin to officers at Lithgow Police Station in about May 2013. He believes that there would be a record of their meeting with Constable Fisk and/or Constable Starr and that the information should be located and released.

Other Issues

1. The Applicant asserted that he provided the Respondent with ample information to allow searches to be undertaken and that it has failed to carry out reasonable searches. He also raised a number of other issues in relation to the manner in which the Respondent dealt with his access application. He referred to a three month delay in dealing with his application and contends that the Respondent has not adequately explained its failure to meet the timeframes set out in the GIPA Act.
2. For completeness, I note that the Applicant unsuccessfully sought a referral for contempt. He expressed concern in relation to Ms Trost and made a number of allegations regarding her dealings with this access application. The decision in relation to that application is recorded as Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 31.

Section 112 of the GIPA Act

1. The Applicant has requested that the Tribunal take action pursuant to section 112 of the GIPA Act.
2. Section 112 provides: "If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency."
3. I considered the Tribunal's powers in relation to section 112 in my decision in Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47 ("Zonnevylle"). I will not reconsider that here.
4. It is apparent from the section that the Tribunal's opinion must be formed "as a result of an NCAT administrative review". The materials supporting this opinion must have arisen in the course of the Tribunal reviewing a reviewable decision.
5. Any referral under section 112 must be made in relation to an "officer of an agency", not against the agency generally; and the conduct complained about must be a failure "to exercise in good faith a function conferred on the officer by or under the GIPA Act'.
6. The relevant test is a subjective one; however there are some objective components as well. For example, consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials.
7. The mere fact that the Tribunal accepts that an aspect of the agency's decision is wrong is insufficient to bring the matter within the scope of section 112: see discussion in Zonnevylle.
8. In Zonnevylle from paragraph [27] I also considered the standard to be applied in relation to the question of good faith.
9. What is required for something to be done or omitted in good faith may vary from one case to the next. I have previously expressed the view that the test of good faith is predominantly subjective: Saggers v Environment Protection Authority [2013] NSWADT 204; Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189.
10. However, there are some objective components as well. For example, consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials. Further, serious and careful consideration must be given to the application; there must be more than a cursory review. The GIPA Act does not allow an agency to simply turn a blind eye to the legislative requirements: Shoebridge at paragraphs [37], [40] - [42].
11. An agency must exercise its functions so as to promote the object of the GIPA Act. It must have regard to any relevant guidelines issued by the Information Commissioner and must not take irrelevant considerations into account.
12. It must undertake such reasonable searches, using any resources reasonably available, as may be necessary to find any of the information applied for that was held by the agency when the application was received
13. The obligation to perform their task in good faith will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes. They have an obligation to make a genuine attempt to discharge the relevant functions, having regard to the circumstances in which they are exercised, such as having limited resources, and established procedures. The exercise of a power in good faith requires an honest and conscientious approach.
14. However, before the Tribunal could form the opinion that an officer of an agency has failed to exercise a function in good faith it would be necessary to form the view that the officer's conduct demonstrates something more than honest ineptitude.
15. In this matter, the only officer who has failed to properly exercise a function under the GIPA Act is Ms Trost. It is clear that she narrowly construed the access application in a way that was not warranted and that she conducted searches on the basis of that narrow construction. As a result of that approach she failed to undertake searches that she should have undertaken. In relation to the request for Crime Stoppers information she wrongly construed the request as seeking a recording of telephone calls to Crime Stoppers and as a result of that construction her search failed to reveal any information. Given her narrow construction of the request this result was inevitable.
16. Nevertheless, while this approach to a narrow construction of the access application is a cause for concern, I am not satisfied that this failure by Ms Trost was due to a lack of good faith or that her conduct demonstrates something more than honest ineptitude. However, it is apparent from the material that is before me that this is not an isolated incident.
17. It is not in dispute that the Applicant has lodged numerous requests for information from the Respondent. In her determination Ms Trost referred to the outcome of his earlier access applications as the basis of her determination to refuse to further deal with parts of the present access application. It is apparent that she also adopted a narrow construction of the earlier access applications and that as a result of the narrow construction in those matters her searches had also failed to reveal any information.
18. In response to the Applicant's questions about the time taken to determine the access application Ms Trost referred to the fact that when she was on leave there was nobody in the unit to deal with it. This suggests that there is an issue in regard to the impact of available resources in meeting statutory timeframes but it doesn't explain the approach to the construction of the Applicant's requests.
19. I have been given information about the number of access applications that the agency receives but I have no information about the structure of the Respondent's Information Access and Subpoena Unit. I have no information about whether there is a consistent approach taken by the agency to construe requests narrowly or whether the approach that Ms Tost has adopted is more limited in its application. If there is internal oversight of GIPA determinations it is clear that that oversight has failed to prevent a narrow construction of the Applicant's requests. The application of a narrow construction inevitably meant that much of the information that the Applicant requested was not revealed by the searches that were undertaken. Clearly, that approach is not effective in promoting the objects of the GIPA Act.
20. Nevertheless, in the circumstances of this matter I am not satisfied that an officer of the Respondent has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act. I therefore decline to make the requested referral under section 112 of the GIPA Act.

Findings

1. In the circumstances it is my view that the Respondent's initial determination was not the correct and preferable one because the Respondent had not exhausted the reasonable searches for the requested information. I note that the Respondent subsequently located further information and determined to release that information. However, I am satisfied that further searches are likely to locate additional information that falls within the scope of the access application.
2. I initially expressed this view after the hearing on 12 October 2015 and I made the decision to remit the matter for further consideration by the Respondent.
3. For various reasons the orders that I made were not carried out. The Applicant commenced contempt proceedings against a number of officers of the Respondent and the parties agreed to attempt to resolve the matter through mediation. I am not aware of whether any aspect of the application has been resolved through the mediation process and so it is appropriate that I revise the orders that I have previously made.

Orders

1. The matter is remitted for redetermination by the Respondent in relation to Annexure K to Ms Trost's statement of 12 June 2015 and paragraphs 2 and 5 of the access application.
2. The redetermination is to be completed by 27 January 2017 and filed by that day. All open material is to be served by 27 January 2017.
3. The matter is listed for further case conference at 2 pm on 21 March 2017.

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: 21 December 2016