Turner v NSW Health Pathology, Forensic & Analytical Science Service

NCAT Administrative and Equal Opportunity|2016-11-08

v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303 Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47 Category: Principal judgment Parties: Donovan Bruce Turner (Applicant) NSW Health Pathology, Forensic & Analytical Science Service (Respondent) Representation: Donovan Bruce Turner (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 2016/00377934, 1610152

Overview

The Applicant seeks access, under the Government Information (Public Access) Act 2009 ("the GIPA Act") to information held by NSW Health Pathology, Forensic & Analytical Science Services ("FASS" or "the Respondent").
On 14 November 2015, the applicant made an access application under Part 4 of the GIPA Act to the Respondent. The Application, numbering 164 pages including 55 annexures, sought broadly: REQUEST A: Disclosure of Forensic Evidence - records held by your agency, owned by your agency, or otherwise in possession of your agency then specify, being of the period 2008-2009 REQUEST B: Disclosure of Forensic Evidence - analysis results in your agency's possession, or at any time held by your agency, whether owned by your agency, or otherwise in the possession of your agency then specify, being of the period 2008-2009 NOTE: Annexures 1 to 55, and associated information, is provided for the assistance of searches to be conducted in concern to disclosure of analysis results, documents, and any other relevant information requested by the applicant to items 1 to 18. The requests include subsections "(i)" "(ii)" etc.

The Application

As referred to above at [8], the scope of the applicant's access application to the Respondent agency was refined in the course of a case conference held by the Tribunal on 3 May 2016. There, the Applicant agreed that his request was for: "All evidence analysis, reports, records, receipts, station exhibit numbers, and forensic examination and personal DNA request forms held by FASS from 2008 to 2009 in relation to the matter of Troy Clough and Donovan Turner, using their names and the following identifiers as search terms: FS 082895 and police event numbers 34294543".
The Respondent's decision, subject to review by the Tribunal in these proceedings, was made in respect of that agreed request and can be summarised as follows: 1. Pursuant to s58(1)(b) of the GIPA Act: information in relation to requests 9-19 and 23 was not held by the agency; 2. Pursuant to s58(1)(d) of the GIPA Act: to refuse access to two documents consisting of the actual DNA profile of a third party, and written verification of that DNA profile; 3. Pursuant to s58(1)(a) of the GIPA Act: to otherwise provide access to all other responsive information held by the Forensic and Analytical Science Service ("FASS").
The Applicant makes a number of claims and allegations in his submissions which can be summarised as follows: 1. The searches conducted by the Respondent in response to the agreed request were inadequate and/or unreasonable; 2. The two documents to which the Respondent has refused access should be released, on the basis that they relate to the Applicant's DNA profile; 3. The Respondent has acted improperly and unlawfully, both in the response to the access application and in the course of these proceedings, by: 1. Providing inconsistent evidence; 2. Not providing evidence from certain witnesses; 3. Concealing information, in breach of s120 of the GIPA Act and s317 of the Crimes Act 1900; 4. Its agents not exercising functions in good faith, such that the Tribunal should report the matter to the responsible minister pursuant to s112 of the GIPA Act; 5. Providing false or misleading statements to the Tribunal, in breach of s71 of the GIPA Act, and therefore the Tribunal should consider whether the Respondent should be found in contempt of the Tribunal pursuant to s71 of the GIPA Act; 6. Its agents tampering with evidence and impermissibly matching DNA profiles in breach of s93 of the Crimes (Forensic Procedures) Act 2000; 7. Its agents concealing a serious indictable offence, in breach of s316(1) of the Crimes Act 1900.
I will deal with the allegations regarding the Respondent's impropriety, unlawfulness and lack of good faith outlined at [22(3)] above separately to the claims referred to above at [22(1)] and [22(2)].

Tribunal's jurisdiction and powers

The Tribunal's jurisdiction to conduct this review derives from s.100 of the GIPA Act read with s.28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s.9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s. 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s. 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
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: ADR Act, s. 63(3).

The GIPA Act

Section 3(1) of the GIPA Act provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object.
Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information. An access applicant has a legally enforceable right to access the information requested unless there is an overriding public interest against disclosing the information: section 9(1) of the GIPA Act.
Section 12 of the GIPA Act sets out the general public interest consideration in favour of access to government information. Section 12(1) of the GIPA Act sets out a general public interest in favour of disclosing government information. Section 12(2) provides that the agency may take into account any other considerations in favour of disclosure which may be relevant.
Section 55(2) of the GIPA Act provides that personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
Section 13 of the GIPA Act sets out the public interest balancing test for determining whether there is an overriding public interest against disclosure. The balance is always weighted in favour of disclosure. Before deciding whether to release or withhold information, an agency must apply the public interest test and decide whether or not an overriding public interest against disclosure exists in regard to the information sought. Section 13 requires the decision maker to: 1. identify relevant public interest considerations in favour of disclosure, 2. identify relevant public interest considerations against disclosure, 3. attribute weight to each consideration for and against disclosure, and 4. determine whether the balance of the public interest lies in favour of or against disclosure of the government information.
The only public interest considerations against disclosure that can be considered are those identified in section 14 of the GIPA Act. This includes considerations set out in schedule 1 to the GIPA Act.
Considerations against disclosure will only be relevant if it is established that the disclosure of the information could reasonably be expected to have the effect outlined in the table to section 14 of the GIPA Act.
Relevant to these proceedings is Clause 3 of the Table at section 14, which provides: 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, (c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings, (d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness, (e) reveal false or unsubstantiated allegations about a person that are defamatory, (f) expose a person to a risk of harm or of serious harassment or serious intimidation, (g) in the case of the disclosure of personal information about a child-the disclosure of information that it would not be in the best interests of the child to have disclosed.
The Agency must apply the public interest test in accordance with the principles set out in section 15 of the GIPA Act: (a) agencies must exercise their functions so as to promote the object of this Act. (b) agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) the fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) the fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent.
The Tribunal is to determine where the balance lies between the public interest considerations for and against disclosure. The balancing exercise "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England [2013] NSWADT 73 at paragraph [74].
The Respondent's obligation to search for information in response to an access application is set out in section 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.
Where an applicant asserts that searches for information conducted in response to an application have not been reasonable, Camilleri v Commissioner of Police [2012] NSWADT 5 and other previous decisions of the Tribunal and its predecessor provide that the Tribunal is to approach the question as follows: 1. The tribunal is to first ask whether there are reasonable grounds to believe that the requested information exists and is information of the agency. 2. If the answer to question 1 is "yes", the Tribunal must then ask itself whether the efforts made by the agency to locate the information have been reasonable in the circumstances of the case.
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].
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].

"Could reasonably be expected…"

The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42] and cited in Roy v Commissioner of Police, NSW Police Force [2012] NSWADT 120 at [28]. While it must be a "real" risk, the chance of it materialising need not be more probable than not: Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36] and the cases there cited. The phrase "'simply calls for an "objective assessment', on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact": Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45].
In Attorney General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at [190], Bowen CJ and Beaumont JJ interpreted the term in the following way: In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...
The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Sheppard J at [112]. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a possibility, risk or chance of the event occurring: Cockcroft per Bowen CJ and Beaumont J at [106].

Reasonableness of searches

The basis for the Applicant's claims that the searches conducted were not reasonable seem to include: 1. That not all persons involved in the relevant areas in which information was held provided evidence of their searches; 2. That incorrect and/or inconsistent file numbers and party names were used on material filed with the Tribunal; 3. That a "realignment of services provided by the Criminalistics Unit in 2013" had resulted in shifting locations for files, loss of files and data tampering; 4. That incorrect search terms or parameters were provided to staff conducted the searches, specifically: 1. 27 May 2008 and 30 May 2008, instead of 29 May 2008; 2. Limited pages of the applicant's annexures to his request application were provided to those searching or managing the searches, instead of all 58 annexures; 3. Whether or not the "LIMS" or "WinLIMS" system or file locations had been searched; 1. That evidence from the Statement of Police - Senior Constable David Crutchett dated 1 August 2016 - demonstrated that certain physical evidence was conveyed to a laboratory for testing, yet that evidence was claimed to have not been received and no analysis thereby conducted.
The Applicant needs to demonstrate that there are reasonable grounds for believing that further information, falling within the scope of the access request, exists that has not been supplied. His submissions demonstrated that he distrusts the adequacy of the Respondent's searches, and he provides his specific reasons for doing so. I consider that he has more than just "a general distrust" of the Respondent on the basis of his evidence and submissions regarding specific issues at [46(1)] and [46(4)] above. However this does not go so far as to demonstrate the reasonable grounds required.
In relation to the Applicant's claim that relevant persons who could have given evidence did not do so, the Respondent wrote to the Applicant on 1 August 2016 as follows: In your document, you request that some 32 people provide witness statements and attend to give evidence in the matter of Turner v NSW Health Pathology ("FASS"). The Respondent has filed and served affidavits from two witnesses, Ms Nicole Miller and Ms Margaret Black. At this stage, the Respondent does not intend to call any other people as witnesses. Please confirm whether you require Ms Miller and/or Ms Black to be available for cross-examination. If you want other people to provide evidence, you will need to call those people as your own witnesses and they will need to provide a statement. If they are not willing to do this, you can apply for summonses to be issued. … In the present case, it is not clear how the evidence of many of the people referred to as your "nominated witnesses" would relate to the matters that are the subject of these proceedings, namely: Whether there are reasonable grounds for believing that further information within the scope of your request is held by the Respondent and has not been supplied; Whether the search efforts made by the Respondent have been reasonable ion all the circumstances of a particular case. Please clarify whether you intend to apply for summonses to be issued in relation to the "nominated witnesses" who have not been called by the Respondent…
The Applicant responded to that correspondence in its submissions dated 4 August 2016 by contending that: "…the evidence provided within the statement by CRUTCHETT places a burden upon the tribunal to summons by its own motion (NCAT ACT 2013 s46) the above stated witnesses NEVELLI, GOETZ, WALTON, with emphasis put to the attendance of DAL Mr FROST as it were he who received the forensic evidence in question from Senior Constable CRUTCHETT… The Applicant submits that the respondent's actions as to call Ms Miller and Ms Black ONLY is not justified in consideration to the evidence now produced by Senior Constable CRUTCHETT, nor is it justified by the respondent's own evidence, beit improperly omitted, corrupted, and inconsistent to the true facts admitted"
There is no obligation on the Tribunal to summons those named witnesses by its own motion. The terms of section 46 of the Civil and Administrative Tribunal Act 2013 allow the Tribunal a discretion to call witnesses and obtain evidence, but no requirement to do so. The Applicant gave no explanation as to why he was unable or unwilling to call those witnesses himself. In circumstances where the Respondent has explained to the Applicant on 1 August 2016 how to go about procuring that evidence, I reject the Applicant's submission that the Respondent's failure to call those witnesses demonstrates that the searches conducted by the Respondent were unreasonable or insufficient.
In relation to the applicant's submission that incorrect or insufficient search terms or parameters were provided by the Respondent to those conducting the searches, on the evidence from the Respondent in relation to the searches conducted, I find that the Applicant had a reasonable basis for believing that further material falling within the scope of his access application had not been supplied as a result of the limitations placed on the searches by those directing them. The question is therefore whether the agency's conclusion that it does not hold the information requested is sound. Describing its role in Beesly v Commissioner of Police, New South Wales Police Service [2002] NSWADT 52, the tribunal said, "All that the tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches....".
The Applicant made repeated submissions that the correct date to be used for the searches by the Respondent was 29 May 2008, not 27 May 2008 or 30 May 2008. The difficulty the Respondent was faced with, on my review of the evidence, is that the access application and its annexures made repeated references to 30 May 2008, and references to evidence having been received by the laboratory on 1 July 2008, but very few references to 29 May 2008. The first such reference to 29 May 2008 is at "Request 3" of the access application, which was not provided to those conducting the searches for the Respondent, where it states: In further argument to evidence tampering, manufactured charge(s), the document records a falsified "Offence Date: 30th May 2008" to which NO offence had occurred, contravened to the CRIMES ACT 1900 s. 314 Interference with the administration of justice. In this instance, the NSW Police Force should provide the Forensic Examination Request Form P377 document to Offence Date: 29th May 2008.
The next reference to 29 May 2008 is at "Request 15", which was also not provided to those conducting the searches: ii. Any additional swab items, and analysis related to the Dameeli Lodge incident 29th May 2008. If other relevant to alleged offence date 30th May 2008, specify. iii. Any Fingerprint items, and analysis related to the 29th May 2008 incident. If other relevant to alleged offence date 30th May 2008, specify. iv. Any Physical Evidence items, and analysis related to the 29th May 2008 incident. If other relevant to alleged offence date 30th May 2008, specify.
Then, at "Request 21", also not provided to the searchers, the Applicant sought: i. The applicant requests disclosure of NSW Police Force Forensic Examination Request Form P377 document to Offence Date: 29th May 2008. ii. The Applicant requests disclosure of NSW Police Force Forensic Examination Request Form P377 document to any other Offence Date, concerning Mr Turner.
The Respondent's reviewable decision notes at "3. Searches for information" that: Additionally, I spent some time re-reading your application to locate further possible search terms and supplied the following to FASS, also on 5 May 2016: Actual date of offence - 29/5/08 + two erroneous dates of 27/5/08 and 30/5/08 Police names: CRUTCHETT, WILKINSON, BLACK, AUSTIN, POWER, WARD, PARISH, WEBB, REYES, BLACK, BRIDGE, SOUTHWELL, BROWN Witness names - ZAFIRIS DAL staff - FROST Forensic Case Number 1057893 Receipt (presumably DAL or Police receipts) numbers 96096 and 97723 Date 1/7/2008 - when a Constable Crutchett allegedly conveyed evidence to DAL
The Respondent's evidence from Margaret Black notes that she was provided with the following documents for the purpose of conducting her searches: 1. A three page document entitled "Request 8: Physical Evidence" 2. A five page printed email exchange dated 8/12/15 titled "Re:GIPA - search terms and documents" 3. A post it note bearing the Police Event numbers "E34294543" and "E34292543".
There is no evidence from Ms Black that she conducted searches in any of the terms identified in the Respondent's reviewable decision referred to at [55] above.
The Respondent's evidence from Nicole Miller, which attaches the statements of other searchers Clayton Walton, Karla Kiprovich, Margaret Black and Suzanna Djulamerovic, also fails to provide any evidence of any of those persons having utilised any of the search terms identified in the reviewable decision referred to at [55] above.
The reasonable conclusion on the basis of the evidence before me is that the specific search terms referred to in the Respondent's reviewable decision, referred to at [55] above, were not in fact utilised by the Respondent. I therefore find that the Respondent's searches were not reasonable in the circumstances.

Information not held by agency

The respondent determined that information in relation to the Applicants requests 9-19 and 23 were not held by it. Specifically: Request 9: section of carpet removed: Not applicable to FASS - reference in request is to blacked out photograph; suggest NSW Police Force Request 10: Fingerprint Evidence: FASS does not receive or process fingerprints. This is a NSW Police Force activity Request 11: ODPP document: Not applicable to FASS; suggest Justice NSW Request 12: FSG Report: Not applicable to FASS; suggest NSW Police Force, to which FSG belongs Request 13: Statement of CSO: Not applicable to FASS; Suggest NSW Police Force Request 14: Statement of Police: Not applicable to FASS; Suggest NSW Police Force Request 15: Exhibit Book Document: Not applicable to FASS. This is a NSW Police Force reference Request 16: Statement of Police: Not applicable to FASS; Suggest NSW Police Force Request 17: Police Handbook: Not applicable to FASS; Suggest NSW Police Force Request 18: Statement of Police: Not applicable to FASS; Suggest NSW Police Force Request 19: Police Handbook Entries: Not applicable to FASS; Suggest NSW Police Force Request 23: District Court Downing Centre Transcript: Not applicable to FASS; Suggest Justice NSW
The Applicant addresses these requests at paragraphs 40 to 51 of his submissions dated 17 June 2016. I find it difficult to understand the Applicant's reasoning as to how those requests are properly made to the Respondent. The Respondent's evidence, which I accept, is that Ms Miller met with Mr Walton, the manager of the Forensic Biology/DNA unit within the Criminalistics branch of FASS, examined the Applicant's requests, identified what information was being sought and where it was likely to be located, if at all, and determined which terms could be used to search for relevant records. Those searches were then conducted. A report was prepared identifying which terms and searches were conducted for which items, and which of the Applicant's requests were not met by the Respondent, as extracted above at [60]. On review of the evidence available to me, I cannot find any basis for disputing the Respondent's assessment that Request items 9 to 19 and 23 were not held by the Respondent, and therefore could not be produced subject to the GIPA access application.

Refusal of access

The Respondent refused access to two documents which it claimed consisted of "the actual DNA profile of a third party, and written verification of that DNA profile". It relied on Clause 3(a) and 3(b) of the Table at section 14 of the GIPA Act to do so. The Applicant submitted that the Respondent should have consulted with that third party, and that the "the actual DNA profile of the claimed third party is NOT what it appears", that "one of the two representation of the DNA profiles at issue is unequivocally the DNA of the applicant (accused)", that the "DNA WORKSHEET - provides evidence of both DNA tampering, and concealment", that "the claimed DNA Profile/s (two) at issue belong to two different person. One being Troy CLOUGH, and the second being Donovan Bruce Turner, of which was used as an impermissible matching of DNA samples received by the agency", that "Entry E Calculation Sheet in truth represents TWO separate illegally compiled representation of DNA Profiles argued in the above by the Applicant, and refused disclosure by the respondent to (1) the applicant, and (2) confidentially to the tribunal. Noting entry "MRD" and '+2" to the document, representing TWO separate DNA Profiles".
On review of the confidential material filed by the Respondent I am satisfied that the documents are as described by the Respondent, and not as submitted by the Applicant. From my understanding of the Applicant's submissions I agree with the Respondent's statement in its decision that: I believe it's the results of the DNA analysis, not the DNA profile itself that helped inform those results, that is useful to you. Those results have already been made available to you (Certificate of Analysis previously provided).
Applying the balancing exercise required by the GIPA Act, I identify that the public interest factors in favour of disclosure include the general presumption in favour of disclosure of government information expressed at Section 12(1) of the GIPA Act, and with reference to Section 12(2) and section 55(2) of the GIPA Act, that the Applicant's personal factors of establishing or maintaining his innocence for a crime of which he was convicted and imprisoned, are considerations in favour of disclosure.
The public interest factors against disclosure are those expressed in Clause 3(a) of the Table at section 14 to the GIPA Act: that the documents reveal an individual's personal information, and 3(b) of that Table: that their disclosure could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, being Health Protection Principles 10 and/or 11.
An individual's DNA profile is undoubtedly "personal information" within the meaning of the GIPA Act, as expressed in Clause 4 of Schedule 4: "personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics". The same definition is at section 5 of the Health Records and Information Privacy Act 2002. The disclosure of the material under the GIPA Act would constitute a "secondary purpose" for its collection within the meaning of Health Protection Principles 10 or 11, so would be prohibited. That is, unless consent was obtained from the person whose DNA profile it is: Health Protection Principle 11(1)(a). No such consent has been obtained. The Respondent submits that a failure to consult is irrelevant and unnecessary because of the overriding public interest against disclosure on the basis of cl 3(a) and (b) of the table to section 14 of the GIPA Act.
On my assessment of the public interests considerations both for and against disclosure, I find that the public interests against disclosure of the DNA profile and written verification of the DNA profile far outweigh the considerations in favour of disclosure.

Inconsistency in the reviewable decision

The reviewable decision in its reasons at 4.1, 4.2, 4.3, 4.4, and 4.5 seems to apply the public interest tests for and against disclosure under the GIPA Act to the whole of the material sought by the Applicant, rather than assessing the information separately according to what is to be released or withheld from the Applicant. It may be that the decision maker did assess the different types of information separately, but this is not clear from the reasons.
In its reasons at "4.1 - Public interest considerations in favour of disclosure", the decision maker identifies factors in favour of disclosure "excluding two documents that are a person's personal health information", but makes no reference to "documents that are the information of another agency". The "documents that are the information of another agency" are referred to only in the reasons for the application of the public interest test at "4.3: Public interest considerations against disclosure", where reference to consideration of Clause 1(e) and Clause 3(d) of the table to section 14 of the GIPA Act is made. There was no evidence put forward by the Respondent to support those reasons. As far as I can ascertain from the evidence before me, the documents referred to there in the decision were not provided to the Tribunal for consideration.
The Tribunal was provided with evidence as to why certain requests by the Applicant, being Requests 9 to 19 and 23 of his access application, related to documents not held by the Respondent, but this is different to evidence that the Respondent held which it determined could not be released to the Applicant on public interest grounds.

Allegations of impropriety and unlawfulness

The Applicant's various submissions, both oral and written, make repeated reference to his allegations and accusations that the Respondent and its officers are guilty of offences pursuant to sections 114, 116 and 120 of the GIPA Act, sections 71 and 73 of the Civil and Administrative Tribunal Act 2013, and various provisions of the Crimes Act 1900 and Crimes (Forensic Procedures) Act 2000. The Applicant also seeks referral to the Minister under section 112 of the GIPA Act.
The basis for these submissions seems to arise from the Applicant's assessment of various typographical or recording inconsistencies in the documents filed with the Tribunal, the different title descriptions used to identify the Respondent, and inconsistencies in evidence.
Section 112 provides: If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.
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: 1. What is required for something to be done or omitted in good faith may vary from one case to the next. 2. Objective components may include: 1. consideration as to whether there had been a real attempt to answer the request for information at least by recourse to the available materials. 2. serious and careful consideration must be given to the application; there must be more than a cursory review. 1. 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.
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.
In the circumstances of this matter, on the evidence before me, I am not satisfied that an officer of the Respondent has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act. I therefore decline to make the requested referral under section 112 of the GIPA Act.
In relation to the Applicant's complaints and allegations regarding the Respondent's breaches of sections 114, 116, and 120 of the GIPA Act, section 128 of the GIPA Act states: 128 Nature of proceedings for offences (1) Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court. (2) Proceedings for an offence under this Act or the regulations may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.
I agree with the Respondent's submissions. The Local Court is the appropriate forum for dealing with any charge that an offence against any of these sections has been committed. The Tribunal has no jurisdiction to deal with these provisions.
In relation to the Applicant's allegations that the Respondent is guilty of various offences under the Crimes Act 1900 or Crimes (Forensic Procedures) Act 2000, I agree with the Respondent's submission that the Tribunal has no jurisdiction to consider those alleged offences.

Conclusion

In light of the above, and specifically as a result of the inconsistencies in the reviewable decision and the finding regarding the reasonableness of the searches conducted by the Respondent, I determine that the correct and preferable decision is to set aside the administratively reviewable decision of 15 June 2016 and remit the matter for reconsideration by the Respondent in accordance with these reasons, such reconsideration to be completed within 45 days of the publication of these reasons

Orders

The Tribunal makes the following orders: 1. Set aside the administratively reviewable decision of 15 June 2016 and remit the matter for reconsideration by the Respondent in accordance with these reasons, such reconsideration to be completed within 45 days of the publication of these reasons. 2. Direct the Respondent to conduct specified additional searches. referred to at paragraph [55], 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 application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused. 2. The matter is listed for directions on 31 May 2017 at 10am.

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: 11 April 2017

At a glance

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Decision date

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Judgment (14 paragraphs)

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Legislation Cited (2)

Cases Cited (6)

Cited By (7)