Turner v Commissioner of Police, NSW Police Force

The hearing of the review application

1. This application is one of a number of review applications made by Mr Turner in relation to access requests for documents held by a number of NSW government agencies, and has been the subject, along with Mr Turner's other review applications, of planning meetings before other Tribunal members, and a mediation.
2. The application was listed for hearing on 14 September 2016. The respondent had filed written submissions dated 1 August 2016 addressing four applications for review then pending in the Tribunal relating to access requests made by the applicant. In Part 7 of those submissions, the respondent addressed the various parts of access request 133631 in detail. Following discussions with the parties, the Tribunal ordered pursuant to s 108 of the GIPA Act that the respondent make a determination on the access application, and provide a notice of determination including reasons by 12 October 2016. Directions were made for the parties to exchange submissions and evidence, and the matter was adjourned part heard to 1 December 2016.
3. On 9 November 2016 the respondent issued a notice of decision in relation to the access request. The notice referred to the decision as a "delayed decision", and that term has been used in the respondent's submissions, and also, for convenience, in these reasons. The delayed decision referred to each of the 23 numbered requests as "items", and for convenience, that term is adopted in these reasons. Item 12 was released in full. The request in relation to items 1-9 was determined to not be a request for "government information". Access to items 11, 15, and 21 was refused on the basis that the information had been the subject of a previous access application (referring to s 60(1)(b) GIPA Act). The decision recorded the finding that the respondent does not hold the information requested in items 10,13, 14, 16, 17, 18, 19, 20, 21, 22, and 23, referring to s 58(1)(b) of the GIPA Act. In relation to item 23 the determination was also that the request was not a valid application, referring to s 41 of the GIPA Act.
4. At the resumed hearing on 1 December 2016 Mr Turner indicated that he had received notice of the delayed decision later than the September directions required, however he was able to respond to the matters in it other than concerns about his ability to respond to that part of the determination relating to items 16 and 17. The administrative review of the respondent's reviewable decision made on 9 November 2016 has proceeded pursuant to s 108(3) of the GIPA Act.
5. The delayed decision was signed by Senior Sergeant Nargis Fam, Co-ordinator of the External Information Access Unit. In the notice of decision Senior Sergeant Fam stated the reasons for the release in full of item 12, and the refusal in relation to the other items. Senior Sergeant Fam did not prepare a witness statement. Her evidence-in-chief was given orally on 1 December 2016, and she was cross-examined, by telephone.
6. Senior Sergeant Fam's evidence was that she searched and reviewed three sources of information, the NSW Police Computerised Operational Policing System (COPS), the brief of evidence, and previous access applications made by Mr Turner, in particular access application reference IAU 111488. Senior Sergeant Fam explained that her first place for search is the COPS database, which would identify if there was an incident. If a person was charged there would be a brief of evidence, and those together with any previous application, would be the only places she would be able to search. In her experience of dealing with applications by Mr Turner there would be no other place. In relation to item 19, Constable Bridge's notebook entry, Senior Sergeant Fam stated that she had that morning made a further inquiry of Archives and had not yet received a response.
7. In cross-examination Senior Sergeant Fam stated that she had requested Archives to search for Constable Bridge's notebook entry. She had no reason to search for anything else, because everything would be in the brief of evidence. She had no reason to contact duty officers. She would have searched the COPS main event number. She would not search summary sheets, or request anything from a particular police station. Senior Sergeant Fam could not recall if she had had the annexures provided with the application. If she searched under Mr Turner's name the COPS system would provide details of all events with his name, including with different versions of his name. Senior Sergeant Fam did not search any rosters, or the NSW Repository, or any police station. She used a tracer to contact Phillip Austin. She spoke to Senior Constable Crutchett and asked him to provide the brief of evidence; she could not recall whether she asked him any questions. In response to a question whether she looked for two briefs, Senior Sergeant Fam stated that she looked at the whole brief and did not have it in parts.
8. The delayed decision refers in relation to items 16 and 17 to a statement by Senior Constable Crutchett dated 1 August 2016. The content of that statement is referred to below. Senior Constable Crutchett was not available for cross-examination at the hearing on 1 December 2016. In written submissions of that date Mr Turner noted that Senior Constable Crutchett had been cross-examined on 28 November 2016 in two other applications for access to documents, before a different Tribunal Member (matters 1610264, 1510580). The representative of the respondent opposed having Senior Constable Crutchett available for further cross-examination, and requested that Mr Turner and the Tribunal examine a copy of the transcript of the relevant parts of those other proceedings to consider whether or not Senior Constable Crutchett should be called for cross-examination in relation to items 16 and 17. Directions were made for the respondent to obtain a copy of that transcript and provide it to the Tribunal and to Mr Turner, with the matter to be listed for directions to determine what if any additional evidence was required. Directions were also made on 1 December 2016 for the respondent to provide to the Tribunal and to Mr Turner confirmation of the outcome of Senior Sergeant Fam's additional searches in relation to item 19.
9. The respondent provided the transcript on 16 January 2017. In a directions hearing on 24 January 2017 I advised the parties that having read the transcript, I had formed the view that while the cross examination on 28 November 2016 had traversed some of the issues, it did not deal squarely with items 16 and 17, and that the applicant was entitled to have Senior Constable Crutchett made available for further cross-examination. Directions were made for the respondent to provide a statement by Senior Sergeant Fam as to her searches for Constable Bridge's notebook (a redacted extract of which had been provided to the Tribunal and to Mr Turner on 16 December 2016), and to provide evidence and submissions in support of any contention that there is an overriding public interest against disclosure of any part of the material in the notebook.
10. On 13 March 2017 the respondent filed with the Tribunal on a confidential basis a copy of pages from Constable Bridge's notebook, and also filed a statement by Senior Sergeant Fam dated 13 March 2017.
11. The hearing resumed on 6 April 2017. Mr Turner elected not to require Senior Constable Crutchett for cross-examination, stating that he would rely on the transcript of the cross-examination on 28 November 2016 and his submissions in relation to that cross-examination. Senior Sergeant Fam was cross-examined on her statement of 13 March 2017.
12. In confidential session the Tribunal heard submissions from the respondent's representative as to the redactions from the copy of Constable Bridge's notebook.
13. In her statement of evidence dated 13 March 2017 Senior Sergeant Fam confirms her oral evidence given on 1 December 2016. In relation to the request for Constable Bridge's notebook (item 19), Senior Sergeant Fam states at [10] that in preparing the delayed decision of 9 November 2016, she had been given a draft decision for consideration. She gave active consideration to the decision and each of the 23 items requested. She inadvertently skipped item 19, and when the oversight was drawn to her attention on 1 December 2016 she undertook to carry out the necessary searches. At paragraph [13] Senior Sergeant Fam states that she emailed the relevant archiving facility requesting a copy of Constable Bridge's notebook; on 2 December 2016 she emailed Sutherland local area command (LAC) requesting that a search be done; and on the same date she was advised that the notebook had been located and she was provided with a photocopy of the notebook covering the dates 7 May 2008 to 14 August 2008.
14. After the evidence was concluded and both parties had made oral submissions, the Tribunal reserved the decision. The respondent was directed to provide a submission on a confidential basis by 13 April 2017 as to its final position on the document the subject of confidential submissions during the hearing. On 19 April 2017 the respondent provided to Mr Turner and the Tribunal a copy of Constable Bridge's notebook with revised redactions, and advised that the respondent otherwise relied on the oral submissions made during the hearing on 6 April 2017.
15. Both parties have provided written submissions. The respondent's submissions are dated 1 August 2016 and 13 March 2017. Mr Turner provided written submissions dated 23 July 2016, 17 August 2016, 17 November 2016, 1 December 2016, 24 January 2017, and 18 March 2017.
16. After the conclusion of the hearing, when the decision was reserved, Mr Turner provided additional written submissions dated 22 April 2017. The respondent was asked for its views. The respondent did not oppose the Tribunal having regard to the submissions of 22 April 2017 insofar as they are relevant, noting that subsequent to the hearing, the respondent had released a copy of Constable Bridge's notebook with the additional two lines unredacted, and that insofar as the 22 April 2017 submissions comment on this information, the respondent accepts that this is relevant, the applicant not having had an opportunity to comment on the information previously. The Tribunal is satisfied that while leave was not granted at the time for any further submissions, in the interests of procedural fairness it is appropriate to grant leave to the applicant to file the document dated 22 April 2017 as further submissions in the proceedings.
17. Mr Turner subsequently filed further submissions dated 13 May 2017, again without leave. The respondent objected to the Tribunal considering those submissions in their entirety on the basis of relevance, commenting that the submissions largely repeat aspects of the 22 April 2017 submissions, or otherwise contain irrelevant submissions. The Tribunal has read those submissions and agrees with the respondent's characterisation of their content. Leave is not granted for the applicant to file those submissions and the Tribunal has not had regard to them.

Respondent's submissions

1. The respondent submits that Tribunal should affirm the decision under review. The 23 items requested were considered in the delayed decision to fall within 4 categories: 1. Invalid request: items 1-9 were understood to be requests for physical items and as such do not meet the definition of "government information"; and item 23 was also declared to be an invalid request on the basis that the request did not identify relevant government information; 2. Information released: item 12, and later a redacted version of item 19; 3. Information the subject of a previous application (s 60(1)(b)): items 11, 15, 21; 4. Agency does not hold the information (s 58(1)(b)): items 10, 13, 14, 16, 17, 18, 20, 21, 22, 23.
2. In relation to items 1-9 the respondent maintains its position as put in the submissions of 1 August 2016 that the physical items are not "government information" as defined in the GIPA Act. Insofar as the access request seeks access to documents containing information about those items, the respondent relies on the oral evidence of Senior Sergeant Fam that all information relating to those items would be contained in the brief of evidence. The respondent further relies on the references to those items in the decision of the Court of Criminal Appeal in Turner v R [2015] NSWCCA 322.
3. In relation to items 11, 15 and 21, the respondent submits that it has already decided a previous application for the same, or substantially the same, information, in access application IAU 111488 received on 27 February 2012. In its decision of 17 April 2012 the respondent provided access to 230 pages of documents, pages 48-230 of which formed the brief of evidence in relation to what it has referred to in submissions as the Dameeli Lodge Incident.
4. In relation to items 10, 13, 14, 16, 17, 18, 20, 21, 22 and 23, the respondent submits that this is information that is not held by the respondent. The respondent submits that there are no reasonable grounds to believe that the requested documents exist and in essence the applicant's requests are for information he believes exists or should have been created. The respondent relies on the evidence of Senior Constable Crutchett and Senior Sergeant Fam to the effect that all information relevant to the Dameeli Lodge Incident is contained within the brief of evidence and that Mr Turner has been provided with a copy of the brief of evidence; and further relies on the evidence of Senior Constable Crutchett that information in relation to items 14, 16 and 17 does not exist. The respondent further submits that the searches conducted by it have been reasonable in the circumstances.
5. In relation to item 19, the respondent submits that there is an overriding public interest against disclosure of some of the information in the notebook of Constable Bridge, relying on the public interest consideration in Table 3(a) to s 14 of the GIPA Act. The respondent submits that the notebook includes personal information relating to individuals other than the applicant, and that the information relating to Mr Turner has been disclosed in full.

Applicant's submissions

1. Mr Turner submits that the respondent is concealing evidence and information listed for disclosure, contrary to the Crimes Act 1900 (NSW); that searches undertaken were fundamentally flawed; and that there are searchable avenues open and readily available to the agency. In Mr Turner's submission there has been a deliberate and wilful act to conceal evidence held within the impaired file location(s) within the NSW Commissioner of Police and the NSW Police Force systems. Mr Turner submits that the documents disclosed in the access request IAU 111488 were produced as false and misleading documents and form part only of the documents held by the agency. In relation to the response to the request for items 1-9, Mr Turner submits that there has been concealment of analysis results. He gives emphasis to the statement of Senior Constable Crutchett dated 1 August 2016, submitting that his evidence that he personally conveyed all the items listed on the P377 form and P967 form is contrary to the statements by the agencies involved; and that this was contrary to his statement in cross-examination on 28 November 2016 that the Division of Analytical Laboratories (DAL) would have forwarded the fingerprint evidence. There has been DNA tampering, manufacturing of DNA evidence and illegally procured file(s) location(s) to which evidence including forensic evidence is concealed. The agencies have failed to search or locate analysis results or police records of conveyance for items including clothing and fibres retained within the NSW Police Force Crime Scene Forensic bags. Mr Turner submits that the Tribunal should not accept the evidence of Senior Sergeant Fam, and that her evidence establishes that the searches were deficient. The notebook of Constable Bridge is manufactured. Mr Turner submits that the searches were poor and deficient, and there has been a lack of ethical or principled standards; and there should have been more documents disclosed in response to his request for 23 items than the one inch of documents disclosed.
2. In his further written submissions of 22 April 2017 Mr Turner submits that additional searches should be undertaken using the number A600437918 included in the unredacted part of Constable Bridge's notebook; that the redactions should be lifted; and includes his submission as to why the searches conducted by the respondent were not reasonable.

Consideration

1. The task of the Tribunal in determining the application under s 100 of the GIPA for review of the respondent's determination of the access request is to decide what is the correct and preferable decision, having regard to the material before it: s 63 Administrative Decisions Review Act 1997. The respondent agency bears the onus of satisfying the Tribunal that its decision is justified: s 105(1) GIPA Act. The respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department [2002] NSWADT 277.
2. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: s 63(3) Administrative Decisions Review Act 1997.

The GIPA Act

1. Section 3(1) of the GIPA Act states the object of the 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. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. The term "government information" is defined in s 4(1) of the GIPA Act to mean "information contained in a record held by an agency". A "record" is defined in cl 10 of Sch 4 to the GIPA Act to mean "any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means".
3. Under s 9(1) 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.
4. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 13 provides that there is an overriding public interest against disclosure of government information for the purposes of the 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.
5. The review application requires consideration of the following issues: 1. Whether the decision to treat the request in relation to items 1-9 as an invalid application is the correct and preferable decision; 2. Whether the refusal to deal with the application in relation to items 11, 15 and 21 pursuant to s 60(1)(b) of the GIPA Act is the correct and preferable decision; 3. Whether the respondent has undertaken reasonable searches for the information requested in items 10, 13, 14, 16, 17, 18, 20, 21, 22 and 23; and 4. Whether the respondent's decision to redact information from the copy of Constable Bridge's notebook requested as item 19 is the correct and preferable decision.

Items 1-9

1. It is apparent from the terms of the delayed decision that the request for items 1-9 was treated as a request for access to physical items. Had the request been framed in those terms, the respondent's determination that those items were not information contained in a "record" held by that agency would be correct, having regard to the definition of "record" in cl 10 of Sch 4 to the GIPA Act. However, the introduction to the access request makes it clear that the request was for access to information in a record as defined in cl 10, being directed to "schedule of analysis results & records…" for the specified items.
2. The oral evidence of Senior Sergeant Fam on 1 December 2016 confirmed that she had approached that part of the access request to be as a request for physical items. Her response when asked about information relating to those items was that all information would be contained in the brief of evidence. The notice of the delayed decision records in relation to that part of the access request a reference to the provision under access request IAU 111488 of the brief of evidence. However, it is not apparent from either Senior Sergeant Fam's oral evidence or the statement in the notice of the delayed decision that she, or any officer under her supervision, considered whether documents responsive to the request were actually contained in the brief of evidence, or whether any of those documents could reasonably be obtained from other searches of records held by the respondent.
3. In those circumstances, the Tribunal is not satisfied that the respondent has discharged the onus in s 105 of the GIPA Act of establishing that the refusal to deal with the request in relation to items 1-9 is the correct and preferable decision.

Items 11, 15 and 21: s 60(1)(b) of the GIPA Act

1. Section 58(1)(e) of the GIPA Act provides that an agency may decide an access application by deciding to refuse to deal with the application. Section 60(1)(b) 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): … (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, …
2. Section 60(1)(b) 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.
3. The respondent relies on the determination in access application IAU 111488 made on 17 April 2012. The respondent has provided a copy of the determination, but not the access request. The introduction to the notice of determination states that the access application was interpreted to be in relation to five matters, one of which was "Brief of Evidence (provided in part in IAU 100725)". Documents at pp 48-230 of the determination in IAU 111488, released in full, were stated to be: "Please note the Documents provided from page 48 to 230 form the Event and Brief of Evidence in relation to charge H34968816".
4. The respondent relies on the provision of the copy of the Brief of Evidence, and submits that the information sought in IAU 111488 and the information sought in the present access application is information held by the respondent relating to the same event, and that while the information sought in the present application is expressed with greater precision than the broad request in IAU 111488, it is the same or substantially the same information as that sought and decided upon under IAU 111488.

Item 11

1. The respondent relies on the provision of the receipts in the brief of evidence provided in the response to IAU 111488. The document at p 165 is a photocopy of two documents, copied side by side. The access request in the present application sought disclosure of "the original full document" for both Receipts, as well as the content to both receipts.
2. It may be that the Brief of Evidence does not include anything other than the single page with both Receipts copied side by side, and that the documents provided on 17 April 2012 respond to the request made in IAU 111488. However, the Tribunal is not satisfied that the provision of the document in response to that previous request is the information concerned, or substantially the same as the information sought in the present application. On the evidence before the Tribunal, the request in IAU 111488 was for access to a specific collection of documents described as the Brief of Evidence; whereas the present application is for a complete copy of particular documents that may or may not have been included in that collection. While I agree with the submission of the respondent that the information sought in IAU 111488 and the present access application is information held by the respondent relating to the same event, I do not agree that if follows that the information is the same or substantially the same as the information sought and decided upon in IAU 111488. The first element of s60(1)(b) is not satisfied, and the respondent has not discharged its onus of establishing that it can refuse to deal with that part of the application relying on s 60(1)(b) of the GIPA Act.

Item 15

1. Item 15 is headed as a request for "Exhibit Book document for Troy Clough to the blood swab item/s for the Item 1. Swab of blood from Unit 5 door, and/or door frame", then detailed in four parts. Part (i) of Item 15 is a request for access to "the Troy Clough Exhibit Book document…". The documents produced in the determination of IAU 111488 include three pages, each on a printed form headed "Exhibit Book" with the applicant's name in handwriting. The applicant submits that there should be a separate Exhibit Book document for blood swabs taken from Troy Clough. The evidence of Senior Sergeant Fam is that on review of COPS for the Brief of Evidence for the Dameeli Lodge Incident there are no other exhibit books relating to that incident. The Tribunal accepts that evidence, which is based on a search of the COPS database and the conclusion that any relevant document of that nature is included in the brief of evidence, rather than reliance on the provision of the brief of evidence in response to IAU 111488. The Tribunal is satisfied, based on the evidence of Senior Sergeant Fam, that there are no reasonable grounds for believing that the respondent would make a different decision, and both requirements of s 60(1)(b) of the GIPA Act are met.
2. Parts (ii) and (iv) of the request for Item 15 appear to repeat items requested in Items 1-9, which have been considered above at paragraphs [38]-[40]. Part (iii) appears to be a request for information previously requested in item 10, considered below.

Item 21

1. Item 21 is a request for Forensic Examination Request Form P377. A copy of that document appears at pp 209-211 of the determination of IAU 111488. The applicant takes issue with the date recorded on that document as the offence date, 30 May 2008, submitting that the correct date is 29 May 2008. The details provided in the access request, including the annexures, indicate that while the incident occurred on 29 May 2008, the investigation commenced on 30 May 2008, so that many of the documents the subject of the request bear that date. The Tribunal accepts the evidence of Senior Sergeant Fam that the date recorded on the P377 is likely to be a typographical error, for the reason that in the body of that document the summary of the Circumstances of the Case clearly states the date of the incident to be 29 May 2008. The form records as the date of collection of the exhibits, 30 May 2008. The Tribunal is satisfied that the respondent provided a copy in the determination of IAU 111488 of the Forensic Request Form P377 of the document relating to the offence date of 29 May 2008 (part (i) of item 21), and accordingly the first element of s 60(1)(b) is met. Having regard to the explanation given in the notice of the delayed decision there would no reasonable grounds for believing that the agency would make a different decision on the application in relation to that item, so that the second element of s 60(1)(b) is met.
2. Part (ii) of the request for item 21 is a request for the Forensic Request Form P377 relating to "any other offence date, concerning Mr Turner". In his commentary on that part of the request Mr Turner takes issue with the record of two receipt entries by DAL dated 1 July 2008. That part of the access request is considered below.

Items 10, 13, 14, 16, 17, 18, 20, 21, 22 and 23: s 58(1)(b) of the GIPA Act

1. Section 58(1)(b) provides: 58 How applications are decided (1) An agency decides an access application for government information by: … (b) deciding that the information is not held by the agency, or
2. Section 53 of the GIPA Act specifies the searches an agency is required to undertake if it seeks to rely on s 58(1)(b) of the GIPA Act: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
3. In Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 the Queensland Information Commissioner identified two questions for consideration: first, whether there are reasonable grounds to believe that the requested material is held by the agency, and secondly, whether the search efforts made by the agency have been reasonable in the circumstances of the case. That decision has been followed in decisions of the Tribunal under the GIPA Act, including by SM Montgomery in Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303. In Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 at [41-42] SM Dinnen summarised the principles to be applied in addressing s 58(1)(b): 41.The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]. This requires the applicant to put some credible material or submission before the Tribunal that documents of the requested kind exist. The requirement will not be satisfied by an assertion of non-compliance based on a general distrust of the agency in question: Camilleri at [13]; Cianfrano v Department of Commerce (No 2) [2006] NSWADT 195; Hula v Commissioner of Police (NSW) [2013] NSWADT 153 at [32]. 42.The Respondent then bears the onus of satisfying the Tribunal that the searches conducted by the Respondent were reasonable in the circumstances. In determining whether reasonable searches have been conducted, relevant considerations include "the clarity of the request, the way the agency's record keeping system is organised, and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant": Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30].
4. Section 53(1) limits the agency's obligation to respond to a request for information held by it at the time of the access request. The obligation does not extend to information once held by the agency but which is no longer held in the primary systems of the agency: Robinson v Commissioner of Police [2014] NSWCATAP 73.
5. Mr Turner's submissions include detailed discussion as to why, in his opinion, there are potential sources of documents that have not been searched in response to his request. In the submissions of 22 April 2017 Mr Turner summarises his position on the issue, stating as the basis for his claim that the searches conducted were not reasonable: (a) That not all persons involved in the relevant areas in which information was held provided evidence of their searches; (b) That incorrect and/or inconsistent letter numbers A600437918 were used on material filed with the Tribunal; (c) That a realignment of services provided by the External Information Access Unit in 2016-2017 had resulted in shifting locations for files, loss of files and data tampering; (d) That further to this argument the agency had NOT stated upon any decisions released at title or elsewhere the claimed newly developed unit External Information Access Unit; (e) That incorrect or insufficient search terms or parameters were used by Senior Sergeant Fam to conduct the searches; (f) Limited two GIPA application pages of the applicant's entire material, including annexures to the request application were used for searching or managing the searches, instead of all 58 typed pages, and 56 annexures; (g) Whether or not all available electronic or other file locations, and any other areas including LAC(s), etc involved in the investigations, contacting of laboratories, taking of forensic examination, crime scene investigations, and court processes, etc, had been searched; (h) That evidence from the Statement of Police Senior Constable Crutchett dated 1 August 2016 - and again stated during NCAT hearing involving NSW Police Force, had demonstrated that certain physical evidence, fingerprint evidence, and hallway swab + unit 6 carpet swab required comparison, was conveyed to a laboratory for testing, yet NO laboratory test results were said to have been identified, and as such NOT disclosed.
6. It is clear from the applicant's submissions that he does not trust the adequacy of the searches undertaken by the respondent, or the reliability of the information and documents that have been provided to him. The applicant's commentary on the specific items requested indicates that in many respects his concern is for information that he believes should exist, or for which he seeks more detailed explanation, rather than a request for information held by the respondent. I accept, however, that the respondent's response to the request in relation to items 1-9, and the late location of Constable Bridge's notebook, would support a finding that the applicant has more than a "general distrust" of the agency, and that there are reasonable grounds for believing that further information falling within the scope of the access request could exist that has not been supplied. The issue for the Tribunal in considering whether the respondent's conclusion that it does not hold the information requested is sound is to be determined, as noted by SM Dinnen in Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 at [51], by an assessment of the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them.
7. In the notice of delayed decision Senior Sergeant Fam sets out the searches undertaken for items 10, 13, 14, 16, 17, 18, 19, 20, 21, 22 and 23. The information provided in relation to items 10, 20, 22 and 23 is consistent with Senior Sergeant Fam's oral evidence that she regarded the relevant search locations to be the COPS system, the Brief of Evidence, and the previous access application IAU 111488.
8. In relation to item 13, the notice of delayed determination records that in addition to those three locations, Senior Sergeant Fam considered the evidence of Michael Power given in NCAT proceedings 139028. Senior Sergeant Fam located a statement dated 4 October 2013 in which Michael Power states that he had not previously provided a statement in relation to the Dameeli Lodge Incident. In relation to item 14, the notice of delayed decision records that Senior Sergeant Fam personally contacted Officer Austin who confirmed verbally and by email that he made only one statement in the matter, on 2 September 2008.
9. For items 16 and 17, the notice of delayed decision refers to a statement by Senior Constable Crutchett dated 1 August 2016. A copy of that statement is in evidence. At paragraph [16] Senior Constable Crutchett states that he did not make a statement or make an entry in his police notebook in relation to the conveyance of material to the laboratory. The date on which that occurred was, based on the documents at pp 209-213 of the determination of IAU 111488, 1 July 2008. Senior Constable Crutchett was not cross-examined on that part of his statement, and the Tribunal accepts that evidence.
10. Having regard to the additional searches undertaken by Senior Sergeant Fam in relation to the requests for documents created by specific named individual officers, the Tribunal is satisfied that the respondent has undertaken reasonable searches for the information sought in items 13, 14, 16 and 17. The evidence of Senior Sergeant Fam was that Constable Bridge is no longer a current employee of the respondent. As a consequence, the Tribunal accepts that Senior Sergeant Fam's searches for item 18 were limited to the sources available to her, namely the COPS database and the brief of evidence, and is satisfied that the searches were reasonable in the circumstances.
11. The evidence of Senior Constable Crutchett is relevant in considering the requests for items 10, 21 and 22. In his statement of 1 August 2016 Senior Constable Crutchett states that he is currently Brief Handling Manager at the Sutherland LAC since October 2010, and in that position is responsible to provide quality assurance of briefs of evidence and other briefs. Senior Constable Crutchett states that a brief of evidence is a collection of documents relevant to a particular charge laid by NSW Police. In his experience where a person has been charged with a number of offences relating to the same incident a brief of evidence is not created individually in relation to each offence and there will be a single brief of evidence. The police officer with carriage of the investigation will complete and sign a Disclosure Certificate to confirm that they have disclosed to the Director of Public Prosecutions all the relevant information and documents obtained during the investigation that might reasonably assist the case for the prosecution or the accused person. If there is any material relevant to the case that is not included in the brief that must be disclosed in the disclosure certificate. There is only one Disclosure Certificate created by the Officer in Charge in respect of the brief of evidence. The service of the brief of evidence on the defendant is recorded on COPS. Senior Constable Crutchett states that the brief had a case file index number 11/07/2008 and the physical brief was securely stored in the Sutherland Command Case/Brief file compactus. Senior Constable Crutchett states that he has searched COPS and located the physical case file and confirms that in relation to the incident at Dameeli Lodge on 29 May 2008 there is only one brief of evidence and one disclosure certificate. Senior Constable Crutchett states that having reviewed the documents headed "Forensic Examination Request Form P377" and "P967 Person DNA Sample Examination Form" at pp 209-213 of IAU 111488, he recalls that he conveyed the material listed in those documents to a laboratory. He did not make a statement or make an entry in his police note book.
12. The transcript of the cross examination of Senior Constable Crutchett on 28 November 2016 includes questioning by Mr Turner on the handling of the forensic exhibits, and the P967 form. In the course of that questioning Senior Constable Crutchett stated that fingerprint exhibits would go to Pemulwuy not to DAL at Lidcombe; DNA exhibits would go to a different location which is why there is a separate form. His evidence was that just because there are separate items going to separate laboratories did not mean that there were two briefs, and it all related to one charge and incident. As an exhibit officer, he conveyed and returned multiple items. He transferred what was documented and if there was a sealed bag he would not know what was in it.
13. Mr Turner submits (24 January 2017) that Senior Constable Crutchett's evidence supports his claim that analysis results are in existence which have been withheld. Having given careful consideration to the transcript, the Tribunal does not draw that conclusion from Senior Constable Crutchett's evidence. In cross examination on 28 November 2016 Senior Constable Crutchett maintained his position, which is supported by his signature on the P967 form, that he had conveyed forensic exhibits relevant to the investigation of the incident for examination, and he accepted, having considered what was on the forms, that it was likely that the material was to be transferred to Pemulwuy after it was dealt with at Lidcombe. Senior Constable Crutchett could not recall in his oral evidence details of specific dates in 2008, which is, in the Tribunal's view, consistent with the length of time since 2008 and his involvement in conveying many items as exhibit officer in the intervening years. The stamped and initialled acknowledgement of receipt on the P967 document confirms that the exhibits were taken to the DAL laboratories. Whether or not analysis results obtained from the laboratory have been withheld is a matter to be addressed by the respondent in its reconsideration of the request for items 1-9.
14. The request for item 10 is for fingerprint evidence for the unit 6 door, and "other existing". Senior Sergeant Fam's response was that none of the statements of the officers involved in the investigation refer to fingerprint evidence having been taken, and there are no records in the COPS system of a fingerprint examination; and on that basis, the information requested does not exist or is not held by the respondent.
15. The respondent relies on the statement at paragraph [53] of the judgment of the Court of Criminal Appeal in Turner v R that neither the transcript of the trial nor the evidence tendered in the appeal suggested that any relevant fingerprint examination was undertaken. In the Tribunal's view that finding, being based on the material put before the court in the context of an appeal against conviction and sentence, would not necessarily establish that subsequent searches undertaken by the respondent of its own records and systems for any such information could be regarded as having been reasonable in the circumstances of responding to an access request under the GIPA Act.
16. As the Tribunal understands Mr Turner's submissions, he asserts that there must have been fingerprint evidence taken during the investigation, and that either that evidence was not taken to the relevant laboratory, or the results have been concealed or destroyed. Senior Constable Crutchett's oral evidence as recorded in the transcript of cross examination on 28 November 2016 goes to his experience of routine procedure, namely that fingerprint evidence would be analysed at Pemulwuy whereas other forensic exhibits would be analysed at the DAL laboratory, rather than recording a precise recollection of the events of 1 July 2008. Whether or not fingerprint evidence was, or should have been, taken in the investigation, the Tribunal accepts the evidence of Senior Sergeant Fam based on her search of statements made by the investigating officers and the records available through the COPS database that she was unable to locate fingerprint evidence in response to the request in item 10. The Tribunal is satisfied that the searches were reasonable in the circumstances.
17. For the reasons above, the Tribunal accepts that the notation of 30 May 2008 as the offence date in the P377 is a typographical error. The evidence of Senior Sergeant Fam, based on her search of the COPS database, was that there is no other P377 or P967. I accept her evidence in cross examination in responding to questions about alternative search locations, which was based on her experience in the EIAU in identifying the range of search locations available to her. On the basis of that evidence the Tribunal is satisfied that the searches undertaken in relation to items 21 and 22 were reasonable in the circumstances.
18. In responding to item 23 Senior Sergeant Fam stated that there is no relevant government information identified. Mr Turner has provided an extract from the transcript of the court proceedings in which the Crown's legal representative confirmed on the basis of the indictment that the matter did not have a sexual component. Based on that evidence the Tribunal is satisfied that the respondent's determination that it does not hold the information requested is the correct and preferable decision.

Item 19

1. The respondent has located Constable Bridge's notebook, and has provided to Mr Turner a copy of pages 44-47, with material on each page redacted. Page 44 is dated 18 June 2008, and includes details relating to Troy Clough. The respondent submits that there is a public interest consideration against disclosure of the other material at those pages of the notebook, being the consideration stated in Table 3(a) in s 14 of the GIPA Act: 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,
2. The test as to whether disclosure "could reasonably be expected" to have a stated effect is an objective one, and the expectation must be based on real and substantial grounds, rather than a mere possibility: Flack v Commissioner of Police [2011] NSWADT 286. The term "personal information" is defined in cl 4 of Sch 4 to the GIP Act to mean: (1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.
3. The respondent submits that the redacted information is personal information relating to individuals other than Mr Turner, and that disclosure of that information would have the effect of revealing the personal information of those individuals. The nature of that information is information relating to the private affairs of third parties in reporting or responding to enquiries relating to criminal matters to NSW police, which would weigh against disclosure of the information. The respondent relies on the evidence of Senior Sergeant Fam in her statement of 13 March 2017 in which she states that individuals have an expectation that when they report a matter to NSW Police their information and the nature of their report would not be released to other members of the community.
4. Pursuant to s 107 of the GIPA Act the Tribunal considered the unredacted version of the document provided on a confidential basis by the respondent and heard submissions in the absence of the applicant. Having considered the confidential document, the Tribunal is satisfied that the respondent has discharged its onus under s 105 in relation to the non-disclosure of the contents of the relevant pages of the notebook other than those entries relating to Troy Clough, for the following reasons.
5. The confidential document contains details of individuals other than Mr Clough and Mr Turner, including details that would identify them, obtained in the course of the work of Constable Bridge. The Tribunal accepts the evidence of Senior Sergeant Fam based on her experience that such individuals would likely be reluctant to have details of their contacts with a police officer released, and that that is a significant public interest against disclosure. None of those individuals have the names suggested by Mr Turner as possibly appearing in the notebook. The public interest in favour of disclosure identified by Mr Turner was the general presumption in favour of disclosure in s 12(2) of the GIPA Act, and, having regard to s 55(2) of the GIPA Act, the applicant's personal factors of establishing or maintaining his innocence for a crime of which he was convicted and imprisoned. Having regard to the factors in favour of and against disclosure, and to the general principles in s 15 of the GIPA Act, the Tribunal is satisfied that applying the balancing test required by the GIPA Act the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The respondent's determination to provide access to the relevant pages of Constable Bridge's notebook in the redacted form is affirmed.

Conclusion

1. For the reasons above, the Tribunal determines that the correct and preferable decision is to affirm the respondent's determination in the reviewable decision of 9 November 2016 in relation to Mr Turner's request for access to items 10, 13, 14, 16, 17, 18, 15(i), 20, 21, 22 and 23, and the subsequent decision in relation to item 19; and to set aside the decision in relation to the request for access to items 1, 2, 3, 4, 5, 6, 7, 8, 9 and 11. The matter should be remitted to the respondent for reconsideration of the requests for those items in accordance with these reasons.
2. The Tribunal notes that in his submissions dated 22 April 2017 the applicant requests that the Tribunal exercise the powers under s112 of the GIPA Act. The respondent has not had the opportunity to respond to that request, and should be provided with an opportunity to make submissions on that request when the matter returns following the respondent's reconsideration of the access request.
3. The Tribunal makes the following orders: 1. The determination of the respondent as notified in the notice of delayed decision dated 9 November 2016 in relation to the request for access to information in items 10, 13, 14, 16, 17, 18, 15(i), 20, 21, 22 and 23 is affirmed; 2. The determination of the respondent to provide access to the notebook entry by Constable Bridge dated 18 June 2008 in the form provided to the applicant on 19 April 2017 is affirmed; 3. The determination of the respondent as notified in the notice of delayed decision dated 9 November 2016 in relation to the request for access to information in items 1, 2, 3, 4, 5, 6, 7, 8, 9 and 11 is set aside and remitted to the respondent for reconsideration in accordance with these reasons, such reconsideration to be completed within 45 days of the publication of these reasons; 4. The respondent is directed to conduct additional searches and provide the following to the applicant and the Tribunal within 21 days: 1. access to any documents or information resulting from those searches which have not already been provided to the applicant; 2. a statement from each person who conducts any of those searches identifying: what searches are conducted, where and how those searches are conducted, and what information or documents, if any, resulted from those searches. 1. The matter is listed for directions on 2 August 2017 at 10.00am.

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: 13 June 2017