Turner v Commissioner of Police, NSW Police Force

The Remittal Decision

1. In relation to items 1-9, the decision recorded that the only analysis results or records obtained were in a Certificate of Analysis FS 08/2895, relating to analysis undertaken on swabs of room 5 door, room 6 door, tiles inside room 6, room 6 carpet, and a reference buccal swab for Troy Clough. A copy of the Certificate of Analysis had earlier been provided to Mr Turner, and a further copy was provided. The decision was that pursuant to s 58(1)(b) of the GIPA Act, the information relating to items 1, 2, 3, 6, 8 and 9 was information not held by the agency, and in relation to items 4, 5, and 7 pursuant to s 58(1)(a), that the analysis results were contained in the Certificate of Analysis which was released in full.
2. In relation to item 11, the decision recorded that the receipts relate to the brief of evidence relating to Charge H34968816. The contents to the receipts was the brief of evidence, and the agency has previously decided an access application for that information. The respondent refused to deal with that part of the access application pursuant to s 60(1)(b) of the GIPA Act, on the basis that the agency had previously made a decision on the request for that information, and Mr Turner had sought external review of that decision, in Turner v Commissioner of Police, NSW Police [2017] NSWCATAD 177, and there were no reasonable grounds for believing that it would make a different decision.

Consideration

1. In the earlier reasons I set out the relevant provisions of the GIPA Act and the Administrative Decisions Review Act 1997 (the ADR Act). The earlier reasons should be read with these reasons.
2. The Tribunal is required to decide what the correct and preferable decision is on the review of the determination of that part of Mr Turner's request for access that relates to items 1-9 and 11: s 63 of the ADR Act. The respondent has the burden of establishing that the decision is justified: s 105(1) GIPA Act.
3. The respondent relies on s 58(1)(a), (b), and (e), and s 60(1)(b) of the GIPA Act: 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 … (e) deciding to refuse to deal with the application (see section 60), 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,
4. The issue in relation to items 1-9 is whether the respondent has complied with the obligations of an agency in locating government information in response to an access application, as provided in s 53 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.
5. As discussed at paragraph [53] of the earlier reasons, there are 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.
6. In relation to item 11, the issue is whether the respondent has already decided an application for the same information and would not make a different decision, so that its refusal to deal with the access application pursuant to s60(1)(b) was the correct and preferable decision.

Evidence as to the searches conducted on the remittal

1. The evidence on which the respondent relies as to the searches undertaken in response to the remittal is that given by Ms Evans, who conducted the searches.
2. In her statement dated 11 August 2017 Ms Evans stated that she is acting as the Senior Advisory Officer attached to the EIAU, commencing on 17 January 2017. Prior to that she was Internal Information Review Officer from September 2014. She was the EIAU officer assigned to reconsider the remitted items. At paragraphs 7-12 Ms Evans sets out her searches in relation to items 1-9. In summary, she records the following contacts and results: 1. She contacted the Exhibits Officer from Sutherland Local Area Command (LAC) to request the exhibit book relating to the time of the incident, and was advised it had been sent to Archives; 2. She contacted Archives, and obtained the Exhibit Book; that contained three pages relating to the incident, being: 1. D548858, a white rag and light blue Adidas shirt; 2. D548859, clothing: brown singlet, blue Adidas shirt, grey shorts; 3. D54865, four blood swabs; 1. She contacted NSW Police Forensic Services Unit and was advised that generally NSW Police will only be provided with a Certificate of Analysis as the totality of the records or results of forensic testing or analysis, as the Certificate of Analysis is all that the Court requires in terms of DNA evidence for the prosecution of an offence; and 2. She contacted Sydney West Area Health Service laboratories and spoke to an employee in the Analytical Division about procedure in 2008, and was advised that the Certificate of Analysis is the only document provided to the NSW Police of the results.
3. Ms Evans states that on the basis of the information from the Forensic Services Unit and Sydney West Area Health Service Laboratories she is satisfied that the only information held by the respondent relating to analysis results and records of exhibits obtained in the course of an investigation would be contained in the Certificate of Analysis, and there is no reason to believe that in this case the respondent received any additional reports or records beyond what is ordinarily provided. She did not identify anything in her searches which suggested further information would be held.
4. Ms Evans was satisfied that in respect of the requests in the access application for items 4 (unit 6 carpet swab), 5 (unit 5 door frame swab) and 7 (unit 6 door frame swab) the only information held by the respondent is the Certificate of Analysis. She did not identify any information which indicated that hallway swabs, removed carpet or glass pieces were collected by NSW Police. She was satisfied that NSW Police did not hold any information relating to the requests for items 3 (hallway floor swab), 6 (hallway swab), 8 (glass pieces and carpet) and 9 (section of carpet). Ms Evans was not satisfied that any testing or analysis was undertaken on clothing and so was satisfied that NSW Police did not hold information relating to the access requests in items 1 and 2.
5. Ms Evans stated that she considered whether there were any other possible systems she could search or searches she could undertake in relation to analysis results and records. She identified two possible systems, and conducted the following further searches: 1. She searched the NSW Police Records Management System (RMS), which holds and tracks movement of day to day business records, using search terms Donovan Turner, Donavan Turner, Troy Clough, the Charge number, the COPS Event number, and the three Exhibit book numbers: no results were located; and 2. She searched the Exhibit Forensic Information Miscellaneous Property System (EFIMS), an electronic system that replaced the use of Exhibit Books in 2011, in case there had been a back capture of information, searching by COPS Event number: no results found.
6. Ms Evans stated that she had also used the Forensic & Analytical Science Service (FASS) spread sheet obtained by Mr Turner in separate proceedings in the Tribunal, and searched every COPS Report number on the spread sheet to ascertain whether the entry related to Mr Turner, the incident at Dameeli Lodge, or items 1-9. The items listed for testing in the spread sheet relating to Event Report E34294543 were consistent with the items in the Certificate of Analysis, and there was no additional information.
7. In relation to item 11, Ms Evans stated that item 11 is a copy of a receipt provided by the Department of Public Prosecutions to NSW Police in relation to the delivery and receipt of the brief of evidence relating to Charge H34968816. Mr Turner has previously sought access to the brief of evidence in two access requests and the respondent has previously decided access request IAU 1288841. Ms Evans did not believe that the respondent would make a different decision.
8. Ms Evans gave oral evidence, and was cross-examined by Mr Turner. In summary, her oral evidence was: 1. She looked at the relevant parts of the annexures to the access request to clarify the requests for items 1-9; 2. In relation to the reference in para 8 of the statement of Nathan Ward of 30 June 2008 to "Sutherland Exhibit Book reference number 34294543", there was no exhibit book of that number, and the number is not an exhibit book number, and may be the Event number; and 3. She skimmed the extract of transcript from the trial.
9. Ms Evans conceded in cross-examination that it was possible that records could be lost or misplaced or transferred somewhere improperly. She considered that her conduct was proper and consistent with cl 9 of the NSW Police Code of Conduct.
10. Ms Evans conceded that there is no reference to a "door frame" swab in the Certificate of Analysis, and stated that she conducted her searches using the information in the Exhibit Book, using the Exhibit Book number as an identifier. The Exhibit Book was difficult to copy as it was old carbon material, foolscap size, which is why it is difficult to read.
11. In response to the request for item 11, Ms Evans conceded she did not use the annexures provided by Mr Turner with his application, because that request was in relation to the receipts, and to find out what they were she looked at previous decisions. She believed that Mr Turner would have been provided with the complete brief.
12. Mr Turner questioned Ms Evans about additional documents that he has obtained from NSW Health Pathology in another GIPA access request review matter. Annexure 1 to his Additional Submissions dated 9 September 2017 is a copy of a Forensic Bag P36871, which has the date 23/3/2009, which was the date of the commencement of his trial. Ms Evans confirmed that she did not search by that date, and could not confirm whether it bears a NSW Police bar code or a laboratory bar code. Other annexures are forensic bags numbered FS082895/145145, FS082895/145146, and FS082895/145147. Ms Evans' evidence was that the bar code is a laboratory bar code and not a NSW Police bar code. On considering these additional documents Ms Evans stated that they appear to relate to the same items listed in the Exhibit Book, for which the Certificate of Analysis FS082895 has been provided.
13. Ms Evans stated that she did not search by individual officers' names as she did not consider that this would assist her to find additional documents. She did not contact Miranda police station or Constable Black at Miranda as she did not come across anything in her searches that would indicate that Const. Black was involved. Ms Evans did not recall the name of the person to whom she spoke at Sydney West Area Health Service laboratories, and thought she had spoken to "Karen" at the NSW Police Forensic Services Unit.

Respondent's submissions

1. The respondent submits that there are no reasonable grounds to believe that any further information exists or is held by the agency, beyond the information already released. If, contrary to that submission, the Tribunal is of the view that there are reasonable grounds to believe that further information exists and is held by the agency, the searches conducted have been reasonable in the circumstances.
2. For items 4, 5 and 7, the respondent submits that the only information it holds in the way of a "schedule of analysis results and records" is the Certificate of Analysis. The respondent acknowledges that there may well be additional analysis results relating to these items, however the evidence does not support a conclusion that this information is held by the respondent. For items 3, 6, 8 and 9, the respondent submits that having regard to the exhibits identified in the Exhibit Book and the Certificate of Analysis there is no credible evidence to support a conclusion that the objects referred to were collected by NSW Police, or tested. For items 1 and 2, the Exhibit Book reveals that items of clothing were collected; however there is no suggestion that the items were the subject of any testing.
3. The respondent further submits that its searches have been reasonable, relying on Ms Evans' searches of the Records Management System, the EFIMS, and the search of the spread sheet provided by Mr Turner received from FASS. In responding to Mr Turner's additional submissions, the respondent submits that while no search was undertaken relating to the date 23/3/2009, on all of the material provided with the access application relating to events in 2008, there was nothing to suggest anything relevant in 2009. Ms Evans had access to the Exhibit Book and searched the system records, and so there was no obligation on her to contact individual named officers specified by Mr Turner.

Mr Turner's submissions

1. Mr Turner submits that the evidence of Ms Evans should not be accepted. Contrary to her statement that the analysis results have been released in full, the Certificate of Analysis does not record the unit 5 door frame swab as an item. No real attempts have been made to conduct proper searches within electronic backup systems, and the information he seeks has been lost, transferred or destroyed. Ms Evans did not record who she spoke to at DAL, and did not search by reference to the P967 form provided as annexure 50. The agency has continued to refuse to contact Miranda LAC or Const. Black, when there is overwhelming evidence that he was involved in the ERISP, forensic investigations, and was listed as a Crown witness in the trial which he failed to attend.
2. Mr Turner submits that he has provided clear and credible material evidence in support of the information he seeks being in existence and as being analysed by laboratories. That evidence is in the statement of Senior Constable Crutchett (1 August 2016) and his evidence to the Tribunal, and in the annexures to the access request provided to assist searches. Mr Turner points to evidence given at his trial by Senior Constable Wilkinson as to the taking of swabs from the door which was not consistent with the Certificate of Analysis reference to a room 5 door swab, and submits that that evidence must be a reference to a Certificate of Analysis relating to a swab item which has not been disclosed.
3. Mr Turner submits that the searches conducted have not been adequate. Ms Evans did not use all the information he provided in his access request. He should have had this material in 2008. He is particularly concerned with the distinction in the trial transcript between the door and door frame swabs and the absence of analysis of the door frame in the Certificate of Analysis. There is no evidence that Ms Evans contacted FASS or that she spoke to anyone relevant at the FSU.
4. In relation to item 11, Mr Turner refers to the evidence of Linda Trost in other Tribunal proceedings to the effect that a "brief" was handed to a solicitor in June 2009 at trial. He submits that that conflicts with the two briefs handed to him in 2008 by Sutherland Police, and means that it can be assumed that illegal duplicates may be in existence.

Findings

1. The terms of Mr Turner's access request are set out at paragraph 4 above.

Items 1-9

1. The agency has provided to Mr Turner a copy of the Certificate of Analysis dated 19 March 2009, reference number FS 08/2895. That document relevantly states: (4)The following items in connection with this matter were received on the first day of July 2008, from Leading Senior Constable D Crutchett of the Sutherland Police: 1.Swab - room 5 door 2.Swab - room 6 door 3.Swab - tiles inside room 6 4.Swabs - room 6 carpet 5.Reference buccal sample - Troy CLOUGH (5)Based on my specialised knowledge I can report as follows: A preliminary or "screening" test for blood was positive on three of the swabs (items 1, 2 and 3). DNA testing was carried out on the swabs (items 1 to 4 inclusive) and on the reference sample from Troy CLOUGH (item 5). Troy CLOUGH has the same DNA Profile (in the Profiler Plus System) as the DNA recovered from the room 5 door swab (item 1).This profile is expected to occur in fewer than 1 in 10 billion individuals in the general population. Troy CLOUGH has the same DNA profile (in the Profiler Plus System) as the partial DNA profile recovered from the room 6 door swab (item 2). This partial profile is expected to occur in approximately 1 in 120 million individuals in the general population. DNA testing on the remaining swabs (items 3 and 4) was unsuccessful.
2. Mr Turner is particularly concerned about the unit 5 door and door frame swabs, in the context of his contention that the altercation with Mr Clough occurred inside Mr Turner's room (room 6) and not in the hallway between rooms 5 and 6 as claimed in the prosecution. The Certificate of Analysis does not refer to "Unit 5 door frame swab" or "Unit 6 Door frame swab", which are items 5 and 7 of the access request. Mr Turner relies on the transcript of the opening address by the prosecution in his trial, in which the prosecutor stated that there had been found "blood stains on the door frame of number 5 which was Mr Clough's room and brown stains on the door to room 5 and the brown stains were not blood", and "what appeared to be a blood stain on the door frame of room 6"; and evidence given at the trial by Senior Constable Wilkinson as to the swabs taken. The access request includes documents on which Mr Turner relies to support his contention that more forensic samples may have been taken than appear in the Certificate of Analysis: for example, a photograph in annexure 34 taken by CSO Austin, with the annotation "close view of the lock on unit 5 door and apparent blood stains on the adjacent door frame".
3. The documents relied on by Mr Turner lend some support to his contention that additional samples may have, or should have, been taken in relation to the door frames. However, that does not mean that Mr Turner has demonstrated that there are reasonable grounds for believing that "analysis results and records" documents in relation to any such items exist. The same issue arises for items 1-4, 6 and 9.
4. The documents provided by Mr Turner as annexures to his access request and included in the copy of the brief of evidence previously provided include statements by a number of police officers as to their observations and investigations at Dameeli Lodge. That includes evidence as to the photographs taken, and testing conducted at the site as recorded in the Forensic Services Group (FSG) initial report in annexure 35, to either confirm or eliminate the possibility that observed stains were blood.
5. The evidence as to what forensic exhibits were collected includes the FSG initial report in annexure 35 which specifies the samples that were taken as a swab of blood from the room 5 door, a swab of blood from room 6 door, swab of blood from tiles inside room 6, and 2 x trace swabs from room 6 carpet. That is consistent with the Forensic Examination Request Form P377 signed by Senior Constable Crutchett (FS082895), which records four exhibits: swab of blood room 5 door, swab of blood room 6 door, swab of blood on tiles inside room 6, and 2 x trace swabs from room 6 carpet. The evidence of Senior Constable Crutchett as to his conveyance of forensic material for testing, and the places where that testing would be conducted depending on the different types of exhibits, and the findings based on that evidence, is at paragraphs [59]-[63] of the earlier reasons. In relation to the clothing in items 1 and 2, the statement by Const Ward dated 30 June 2008 records that on 30 May 2008 at Sutherland police station he took items of clothing and entered them into the "Sutherland Exhibit Book reference number 34294543", and stored the items in the Sutherland exhibit room. There is no indication in the material on which Mr Turner relies to establish that apart from the taking of photographs any physical evidence matching items 8 or 9 was collected.
6. At its highest, Mr Turner has demonstrated that some physical evidence was collected as part of the police investigation at Dameeli Lodge, being the taking of the swabs identified in the FSG report, or provided to NSW Police later in the form of items of clothing. As discussed in the earlier reasons, Mr Turner's access application seeks "analysis results and records" relating to any such forensic evidence, and not the physical items themselves. Accepting that it is likely that any forensic evidence collected would have been subject to some form of examination or testing, the Tribunal is satisfied that Mr Turner has demonstrated that there are reasonable grounds for believing that "analysis results and records" documents in relation to some of items 1-9 exist.
7. If that is so, the issue then is whether the searches undertaken to locate any "analysis results and records" relating to any of those forensic items or exhibits collected at the site or provided later, that may be held by the respondent, have been reasonable in the circumstances. Relevant considerations include "the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant": Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30].
8. The agency's obligation is limited to information held by the agency when the application is received, and 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. It is always possible, as Ms Evans accepted in cross examination, that documents could be lost or misplaced.
9. Mr Turner provided a detailed explanation of, and supporting annexures to, his access request. Ms Evans' evidence was that she had regard to those parts of those documents relevant to the request for access to documents identified under items 1-9 and 11. Her evidence was that the appropriate approach was to locate the Exhibit Book, and to conduct further searches using relevant numerical and other identifiers, which would not include searching by the names of individual officers. The Tribunal is satisfied that based on her experience in the EIAU, and her understanding of how the respondent's record keeping systems were and are organised, Ms Evans was in a position to know how and where to search for any documents relevant to the access request, that were held by the agency at the time the application was received. That is consistent with the approach stated in Miriani.
10. The Tribunal accepts Ms Evans' evidence which was based on her understanding of how forensic evidence was recorded and stored, that the appropriate starting point was the Exhibit Book relating to Charge H34968816. She located that Exhibit Book from Archives, and identified the three relevant pages which record a white rag and light blue Adidas shirt (D548858), items of clothing (D548859), and four blood swabs (D548865). Ms Evans' evidence, based on her contact with the NSW Police Forensic Services Unit and South West Area Health Service laboratories, was that she was satisfied that the only information held by NSW Police relating to analysis results and records of exhibits obtained in the course of an investigation would be contained in the Certificate of Analysis. While Ms Evans could not provide details of the persons to whom she spoke in those contacts, the Tribunal is satisfied that Ms Evans has explained why she was satisfied she could rely on what she was told as to procedure for forensic testing and reporting in 2008, and that the steps she took were consistent with her understanding of the regular procedure in 2008.
11. The Tribunal accepts the evidence of Ms Evans that, based on those records, any documents recording analysis results or records relating to items 4,5 or 7 that would have been held by the respondent agency would be in the Certificate of Analysis. The Tribunal accepts her evidence that there is no indication that material responsive to items 3, 6, 8 or 9 was collected by the respondent agency; and that while the Exhibit Book does record the collection of clothing, there is no suggestion that those items were the subject of any testing or examination so as to be the subject of a documentary record.
12. The evidence as to the further searches conducted by Ms Evans for documents relating to items 1-9, notwithstanding her belief that there would not be any further documents held by the agency, is stated above at paragraph [19]. The Tribunal accepts Ms Evans' evidence, based on her experience, that those were appropriate searches consistent with her knowledge of the way the agency's recordkeeping system is organised. Ms Evans also used the additional material provided by Mr Turner to confirm that items listed for testing in the FASS spread sheet relating to Event Report E34294543 were consistent with the items in the Certificate of Analysis, and there was no additional information.
13. The Tribunal accepts the submission of the respondent that in relation to the additional documents obtained by Mr Turner and provided at the hearing, discussed at paragraph [26] above, while Ms Evans did not conduct a search based on the date 23 March 2009, all of the relevant documents related to events in 2008, and there was nothing to suggest that there were relevant analysis results or records from 2009 such that not pursuing that further would fall within the "reasonable" searches required by s 53(2) of the GIPA Act.
14. The Tribunal is satisfied that the agency has undertaken searches consistent with its obligation under s 53(2) and (3) of the GIPA Act in response to the request for access under items 1-9. The agency's decision in relation to the request for access to documents identified in items 1-9 should be affirmed.

Item 11

1. In considering the agency's determination to refuse to deal with this aspect of the access request under s 60(1)(b) of the GIPA Act, the Tribunal notes that the third aspect, namely disclosure of information "related to a 'sexual component'" was included in item 23 of the access request, and determined at paragraph [68] of the earlier decision. The remaining aspects of item 11 are the request for disclosure of the content to Receipts 96096 and 97723, which are annexure 56 to the access application.
2. Ms Evans' evidence was that the receipts are copies of the receipts provided by the Department of Public Prosecutions to the respondent in relation to the delivery and receipt of the brief of evidence relating to charge H34968816. Ms Evans stated that a copy of the brief of evidence was provided to Mr Turner in response to access application IAU 128841 made on 10 February 2015. Further, the agency has previously refused a request for access to the brief of evidence made on 12 June 2015 in IAU 130755, and Ms Evans does not believe that the agency would make a different decision.
3. Ms Evans has provided a copy of Mr Turner's access application in IAU 130755, which specifies that he sought access to "x3 briefs", referring to receipts 96096 and 97723. Mr Turner's contention, as stated in the access request, is that there were three separate briefs, relating to three separate offences charged.
4. The agency's decision to refuse access in IAU 130755 under s 60(1)(b) was the subject of review in the Tribunal in Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 177. Senior Member Perrignon determined that the respondent was entitled by operation of s 60(1)(b) to decline to deal with access application IAU 130755 because on 6 March 2015 it had already dealt with an application for access to the same information in access application IAU 128841, and he was satisfied that the respondent would not make a different decision. Senior Member Perrignon also discussed, at [42]-[49], Mr Turner's contention that there were three briefs, concluding that on the evidence there was no reason to suspect that there was more than one brief of evidence.
5. As was the position in Turner v Commissioner of Police, NSW Police Force [2017] NSWCATAD 177, it is not necessary to consider whether Mr Turner's contention that there was more than one brief is correct. The issues for consideration under s 60(1)(b) are first, whether the respondent has already decided a previous application for the information concerned, and secondly whether there are no reasonable grounds for believing that the agency would make a different decision on the application. The Tribunal is satisfied, having regard to the copy of the application provided, and accepting Ms Evans' evidence that the receipts 96096 and 97723 are for the brief of evidence for charge H34968816, that Mr Turner sought access to the same documents to which he now seeks access as item 11 in access applications IAU 128841 and IAU 130755. The agency dealt with the first application by providing access to the brief and declined to deal with the second application. Based on the agency's determination of access application IAU 130755, and Ms Evans' evidence, the Tribunal is satisfied that there are no reasonable grounds for believing that the respondent would make a different decision on the application. For those reasons, the agency's refusal under s 60(1)(b) was the correct and preferable decision.

Referral under s 112

1. Mr Turner submits that the agency and its officers have failed to comply with their legislative obligations in relation to retention, storage and access to documents and information. Mr Turner submits that Ms Evans is in breach of ss 71 and 72 of the Civil and Administrative Tribunal Act 2013, has failed to comply with the requirements of the NSW Police Force Code of Ethics, and that there should be a referral under s 112 of the GIPA Act.
2. Section 112 of the GIPA Act 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.
3. In support of his submission Mr Turner refers to the requests made by the respondent for extensions of time to conduct the searches on remittal and the respondent's failure to comply within the specified times, his criticisms of Ms Evans' evidence and the remittal decision, and his criticisms of the adequacy of the searches conducted.
4. The respondent submits that there has been no failure by the agency's officers to exercise their functions under the GIPA Act in good faith.
5. The applicable principles are summarised by Senior Member Dinnen in Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114 at [74] - [75]: 74. The Tribunal's powers in relation to section 112 have been considered in a number of recent cases, including Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303, Saggers v Environment Protection Authority [2013] NSWADT 204, Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189. Those cases provide authority for the following guidance in applying section 112: (1)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. (2)Any referral under section 112 must be made in relation to an "officer of an agency", not against the agency generally; (3)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". (4)The test in relation to "good faith" is predominantly subjective; however there are some objective components as well: (a)What is required for something to be done or omitted in good faith may vary from one case to the next. (b)Objective components may include: (i) consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials. (ii) serious and careful consideration must be given to the application; there must be more than a cursory review. (5)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. 75. In Turner, SM Montgomery explained: [102] 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. [103] 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 [104] 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. [105] 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.
6. It is correct that there was a misconstruction of the terms of Mr Turner's access request in the initial decision relating to items 1-9, which required the remittal. It is also correct that the agency did not comply with the timetable for the further searches required on the remittal, and required extensions of time. Ms Evans's evidence at the hearing was that she was the only officer tasked with dealing with the remitted matters, and that she had been unwell for part of the time, and had had to wait for the Exhibit Book to be obtained from Archives. Having regard to those circumstances, and to the way in which Ms Evans undertook the searches on remittal including by reference to the additional FASS documents provided by Mr Turner, I am not satisfied that an officer of the respondent has failed to exercise in good faith a function conferred under the GIPA Act. I decline to make the requested referral under s 112 of the GIPA Act.

Orders 1. The respondent's decision of 8 August 2017 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2017