Mr Turner ("the Applicant") applied to the NSW Police Force ("the Respondent") under the Government Information (Public Access) Act 2009 ("the GIPA Act") for access to information that he believed to be held by the Respondent. The background to these proceedings and the details of his request ("the access application") are set out in my decision that is recorded as Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303 ("the earlier Decision").
In the earlier Decision I affirmed part of the decision under review, but remitted three aspects of the access application to the Respondent for reconsideration. The relevant order was:
"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."
The reference to "Annexure K to Ms Trost's statement of 12 June 2015" is a reference to an email from Sergeant Peter McMaugh to Ms Linda Trost in which Sergeant McMaugh referred to a draft report ("the McMaugh Report") that he had created whilst on secondment to the Corrective Services Investigation Unit. The McMaugh Report related to allegations of mistreatment that Mr Turner had made.
Paragraphs 2 of the access application referred to a number of event records ("the COPS Events") as follows:
2. The below Event Numbers to NSW police report(s) taken by Police confirm existence of records
2(a) The disclosure of all material and information to the below COPS Event(s) Number(s) is now requested for:
2(b) "Event E38672968"
2(c) "39998875"
2(d) "41038227"
2(e) "47010813"
2(f) "47447021"
2(g) "50309581"
2(h) "51484859"
Inclusive: Copy of NSW Police statement by LSC Janet Wilkinson dated 11th February 2014.
The statement verifies COPS Events Numbers submitted in the above
Paragraph 5 of the access application sought records relating to calls to Crime Stoppers ("the Crime Stoppers records") as follows:
5. Request disclosure of ALL records, material and information to Crime Stoppers call(s) made 2007 - 2014 made by Donovan Turner; and 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.
These reasons relate to the redetermination. To the extent that Mr Turner has submitted material that is outside the scope of the matters that were remitted for redetermination, that material is not considered.
The redetermination was undertaken by the Respondent's A/Information Senior Advisory Officer, Ms Jennifer Evans and was completed on 17 February 2017. Ms Evans' reasons for decision outlined the approach that she took and the reasons for withholding some of the information that was located and which she considered fell within the scope of the access application. On 18 April 2017 Ms Evans made a further decision in relation to additional information which was still being searched for at the time of the February 2017 decision. At the time of the 18 April 2017 decision she had not received a response in relation to third party consultation. No objections were raised in relation to the information and on 2 May 2017 she made an addendum to the 18 April 2017 decision in which she determined to release further information.
[3]
Issues for determination
The issue for determination is whether or not the totality of the redetermination decisions has arrived at the correct and preferable decision. In essence this requires a determination of whether the Respondent holds further information that falls within the scope of the access application that should be produced to Mr Turner. In turn, this requires consideration of the evidence regarding the searches that were undertaken and whether or not those searches were reasonable and sufficient in all the circumstances.
[4]
Applicable legislation
I discussed the applicable legislation and case law in the earlier Decision. I do not propose to address it again here.
[5]
The material before the Tribunal
The Respondent relies on the evidence of Ms Jennifer Evans, Acting Senior Sergeant Tiffany Buxton, and Ms Robyn Carr. Each provided a statement in these proceedings, appeared at the hearing and was cross-examined.
Mr Turner relies on his own evidence and a statement by his Aunt, Ms Lorraine Kay Turner.
Each of the parties has also filed written submissions.
[6]
The McMaugh Report
Ms Evans gave evidence that Detective Sergeant McMaugh had confirmed that he had prepared a report relating to an investigation into allegations made by Mr Turner and that a draft of the report was located on the hard drive of his computer. Detective Sergeant McMaugh searched for any further related information, but did not locate any other information that fell within the scope of the access application. Ms Evans determined that the McMaugh Report should be released in full.
In relation to the searches that were undertaken in regard to the McMaugh report, Ms Evans' stated:
I am satisfied that Detective Sergeant McMaugh's searches were reasonable. Detective Sergeant McMaugh was the author of the report, and I believe that any information related to the report would be stored on Detective Sergeant McMaugh's hard drive, which was searched.
I undertook searches for the following information:
a. The notebook entry of Detective Palmer dated 30 October 2010. This is because it is referred to in the draft McMaugh report, and I reasonably believed that this information would be held by NSWPF; and
b. The notebook entry of Sergeant Hollows dated 30 October 2010. This is because Mr Turner advised that this officer was also in attendance at the incident.
I contacted both officers and requested copies of notebook entries relating to the incident. Both officers provided copies of the relevant notebook entries, and they were released to Mr Turner.
I am satisfied that the searches set out above were reasonable, and that NSWPF does not hold any further information relating to the McMaugh Report. I cannot identify any other system or location that would hold any further information relating to the draft McMaugh report that I could search.
Ms Evans stated that she does not have access to information held in different area commands and therefore she must rely on others to provide information to her.
As noted in the Earlier Decision, the onus is on the agency to establish that the decision that is the subject of review is justified. However, it is up to Mr Turner to establish that there are reasonable grounds to believe that further information that falls within the scope of the access application exists. The question of what constitutes an adequate search has been considered in many decisions to requires a two-stage approach:
1. whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency and, if so,
2. whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
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.
Mr Turner raised concerns about the adequacy of the searches and he suggested other searches that might have revealed further records relevant to the application. As a result of this, I remitted this aspect of the access application for redetermination. The Respondent has undertaken further searches and provided evidence of what searches were conducted.
I am satisfied that search efforts that were undertaken in regard to the McMaugh report and information in relation to it were reasonable in all the circumstances. It is unlikely that further searches would locate any other information that falls within the scope of this aspect of the access application.
[7]
The COPS Events
The access application sought access to information in relation to seven specified Computerised Operational Policing System ("COPS") database Events.
[8]
Ms Evans' evidence
Ms Evans gave evidence in regard to the COPS database and stated that it is used by the Police to record information relevant to all victims, offenders and incidents that require police action and is used for investigation and intelligence purposes. Ms Evans also gave evidence in regard to the searches that she undertook to locate any information related to this aspect of the access application that is held in the COPS database or elsewhere within the agency. Her search efforts included attempts to locate the notebooks of officers who had been involved in the incidents recorded by the seven specified COPS Events.
Some additional information was located as a result of these searches and that information was released to Mr Turner. Notebook entries were provided by S/Cons. Katie Bromfield; S/Cons. Joshua Arnold; S/Cons. Leah Ovey; Cons. Melissa Harrison; and Cons. Bruce Browning. Where copied pages of the notebooks included information relating to other events that the police officer attended to on the relevant day, and that information does not relate to Mr Turner, that information has been redacted. It is not within the scope of the access application.
I am satisfied that the redacted information is as Ms Evans stated and is outside the scope of the access application.
Ms Evans stated that she had been unable to locate the notebook of Sergeant Bradley Edwards.
Ms Evans also stated that information located that is relevant to COPS Event E51484859 appears to have been created by other agencies - the Department of Corrective Services and the NSW Health. She stated that pursuant to section 54 of the GIPA Act, third party consultation was necessary before that information could be released.
She also indicated that she had been unable to identify anything relating to a statement by Leading Senior Constable Wilkinson.
[9]
Acting Senior Sergeant Buxton's evidence
Acting Senior Sergeant Buxton gave evidence of additional searches that she undertook to locate further information related to this aspect of the access application.
She recounted efforts that she made to locate Sergeant Bradley Edwards. This included calling the Orana Local Area Command and she was informed that Sergeant Edwards is on long term leave and not contactable at this time. She annexed to her statement copies of correspondence with officers from the Orana LAC which indicates that searches were conducted for any records produced by Sergeant Edwards in connection with E38672968 but no records were located.
Acting Senior Sergeant Buxton also stated that she had conducted a search in the central names index, which is part of the COPS database, and located all of Mr Turner's COPS records. Some of those records have Mr Turner's first name spelt 'Donovan' not Donavan. She detailed the searches that she undertook and the results of those searches. She identified the information that was located. As part of her inquiries she contacted Detective Inspector Gerard Powell of Bathurst Police Station to cause searches to be conducted for the disc containing closed circuit television footage from Lithgow Correctional Centre, contained in the case file attached to E51484859. Third party consultation was commenced with Corrective Services (NSW) with a view to the release of the disk. This information was subsequently released to Mr Turner.
Acting Senior Sergeant Buxton also stated that she had caused searches to be conducted on the computer hard drives used by Sutherland LAC and by former Leading Senior Constable Janet Wilkinson, in connection with her dealings with Mr Turner.
A number of documents were located and these were subsequently provided to Mr Turner.
A search for information relating to Mr Turner's aunt, Ms Lorraine Kay Turner, revealed a notebook entry by Senior Constable Kay Press. The notebook entry confirmed Ms Turner's attendance at the Lithgow Police station to make a report on 5 May 2013.
A copy of the notebook entry by Senior Constable Kay Press was subsequently provided to Mr Turner.
On the basis of the searches undertaken by Ms Evans and Acting Senior Sergeant Buxton, the Respondent submits that all information in relation to the COPS Events has been searched for, and that no further information is held by NSWPF.
[10]
Conclusion as to the COPS Events
Throughout his cross-examination of the Respondent's witnesses Mr Turner identified a number of additional searches that could have been undertaken and which would possibly have revealed further information that falls within the scope of his access application.
It is apparent from the additional material that has been located since the hearing was completed that the Respondent has in fact undertaken additional searches.
While I accept that it is possible that the Respondent might hold additional relevant information, it is my view that further searches are unlikely to locate that information. If the information is held, it is my view that it is not recorded in such a way that would make it accessible to reasonable searches.
Mr Turner is rightfully sceptical of the Respondent's commitment to locating the information that he has requested. The history of this and other applications that he has made shows that the initial response was woefully inadequate. If it were not for Mr Turner's persistence in pursuing these matters and demanding that the Respondent undertake thorough searches, a significant amount of information would never have been located. The reality has been that because Mr Turner did not accept the Respondent's initial response he has obtained that information but it has been provided to him over several years rather than in the period provided for by the GIPA Act.
[11]
Crime Stoppers Records
Mr Turner's access application sought access to records of calls that he made to Crime Stoppers between 2007 and 2014. The Respondent's initial response was that Crime Stoppers Records could not be searched in a way that would allow these records to be located. That response was clearly wrong.
Ms Evans gave evidence of the way in which the Crime Stoppers Records are maintained and the way in which those records can be searched. Information of calls made to Crime Stoppers is stored on the Respondent's Customer Relations Management System ("CRM"). The CRM is a different database to the COPS database. If police action is warranted following a Crime Stoppers call, the operator would create a job using the Computer Aided Dispatch ("CAD") system. This allows for electronic communication of information about an incident and provides police with sufficient details to allow action to be taken.
The Crime Stoppers record is a narrative, not a recording of the call. A caller does not have to provide their name or their contact details. While Crime Stoppers Records do not generally record the name or details of the caller, this does occur if the caller provides their name or other identifying details and these are captured in the narrative of the record.
The information can be searched by a reference number, a date of call, or by key word searches. If the caller provides their details, then they can be identified in a search in that way. Many of the records of Mr Turner's calls did in fact record his details.
Ms Robyn Carr is an Analyst of PoliceLink Command. She and Ms Lynn Wicks performed searches for calls made to Crime Stoppers.
Ms Carr stated that in October 2015 she conducted searches of the CRM system using key words 'Donovan' and Turner' for the period 2007 - 2014. She identified twenty two records of phone calls made by Mr Turner to Crime Stoppers that were relevant to his access application. She created a spread sheet which included the information that she had located through her searches. Mr Turner has been given a copy of that spread sheet.
Acting Senior Sergeant Buxton also stated that she had conducted a search for all CAD records in the name "Donovan Turner" or "Donavan Turner". In her statement she identified the relationship between Ms Carr's spread sheet and the associated CAD numbers.
The Respondent's position is that the spread sheet contains the entirety of the information held by it relevant to this aspect of the access application. It does not hold any further relevant information. The Respondent further submits that the searches for this information were reasonable.
Mr Turner relies on his own evidence in regard to events that took place and maintains that additional records should have been created and should be held by the Respondent. He has his own records of the calls that he made to Crime Stoppers and the dates and times of the responses that were made in relation to those calls. He also identified several discrepancies between his own records and those of the Respondent. There is no obvious explanation for those discrepancies.
[12]
Conclusion as to the Crime Stoppers Records
I have no reason to believe that officers of the Respondent deliberately destroyed information or tampered with information to conceal its existence.
However, as I have noted above, Mr Turner is rightfully sceptical of the Respondent's commitment to locating the information that he has requested. This is particularly the case given that the initial response was that the searches could not be undertaken.
Nevertheless, I am not satisfied that any further searches are likely to identify any additional information relating to calls that he made to Crime Stoppers between 2007 and 2014. If the Respondent holds additional relevant information, it is my view that further searches are unlikely to locate that information.
[13]
Section 112 of the GIPA Act
It is regrettable that these proceedings have been prolonged because of the manner in which the Respondent has dealt with Mr Turner's access application. It is particularly regrettable that a similar approach has been taken in regard to other access applications that Mr Turner has lodged with the Respondent. It is difficult to understand how this has occurred given that the information has ultimately been provided to Mr Turner. This is not a case where information was identified and withheld because of public interest considerations against disclosure. It seems that it might simply be that the searches were no undertaken.
Mr Turner has requested that I make a Report under section 112 of the GIPA Act. That section 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.
While I have serious concerns about the Respondent's response to the access application in this matter, I am not able to identify any single officer of the agency who's conduct should be the subject of a report to the Minister. The Respondent's response appears to me to reflect an attitude within the organisation rather than the conduct of a particular officer of the agency.
I have previously noted that 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: see my discussion in the earlier Decision from paragraph [92]. In my view, this is a case where honest ineptitude is readily apparent but I am unable to identify any failure to exercise a function in good faith.
[14]
Conclusion
Given my findings in relation to each of the remitted issues, it is my view that the totality of the determinations made by the Respondent have reached the position where it is unlikely that further information that falls within the scope of the access application will be located. In the circumstances, the correct and preferable decision is to affirm that decision.
[15]
Order
1. The decision under review is affirmed.
[16]
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: 17 January 2018