Ugur v Commissioner of Police - [2021] NSWCATAP 298 - NSWCATAP 2021 case summary — Zoe

NSWNSWCATAP

Ugur v Commissioner of Police

[2021] NSWCATAP 298

NCAT Appeal Panel|2021-06-11|Before: Dr J

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Source facts

Court

NCAT Appeal Panel

Decision date

2021-06-11

Before

Dr J

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

: Haci Emin Orhan Ugur (Appellant) Commissioner of Police (Respondent) Representation: Solicitors: Appellant (Self-represented) Norton Rose Fulbright (Respondent) File Number(s): 2021/00056023 (AP 21/00626) Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Not Applicable Date of Decision: 2 December 2020 Before: C Ludlow, Senior Member File Number(s): 2020/00166818

[2]

Overview

Mr Ugur has appealed from a decision of the Tribunal which affirmed a decision of the respondent in respect of his application for access to information pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA).
There were two aspects of the Tribunal's decision which were the subject of the appeal. The first was the decision by the respondent, affirmed by the Tribunal, that it held no further information the subject of his access application other than what it supplied to the appellant. This was a decision pursuant to s 58 (1) (b) of GIPA. The second was the decision by the respondent, again affirmed by the Tribunal, to refuse to provide access to some parts of the information contained in documents supplied to the appellant (by redacting that information) on the basis that there was an overriding public interest against disclosure of the information. This was a decision pursuant to s 58 (1) (d) of GIPA.

[3]

Background

Mr Ugur is of Turkish background. In his affidavit in support of his access application he said he was, currently, a civil engineer, a town planner and a property developer. His first language is not English.
He became an Australian citizen at the end of 2012. It is not clear when he first came to Australia. Between January 2004 and January 2008 he was in the Villawood Detention Centre. The documents provided to him in answer to his access application reveal interaction between himself and the respondent during a number of years before and after January 2004.
In early 2013 he visited Turkey for a short period of time before returning to Australia. For the purpose of that visit he obtained a visa from the Turkish Consulate General in Sydney.
Events relating to that visit to Turkey and an unexpected visit to him at his home in Sydney in July 2011 by a police officer with the NSW Police were prominent aspects of a range of matters that the appellant raised in his submissions.
Speaking broadly, the appellant sought access to the information held by the respondent relating to himself regarding any "incidents". There was no doubt that the respondent would hold some information about the appellant because there were a number of incidents or events over a considerable period of time in which there was interaction between the appellant and the respondent.
At the risk of some understatement and generalisation, and without remark about the merit of the appellant's concerns, it is plain from the appellant's submissions on appeal that he is very troubled about what he perceives as abuse of power by the respondent in respect of his life over a considerable period of time and that all or some of this is associated with a plan to have him extradited.
His access application, dated 22 December 2019, was expressed to be for the following information: Copies of all information (all correspondence and documents, including emails, in any format) contain personal information held in relation to [the appellant], 15/07/1959…. regarding any incidents and the police action arising from such incidents including, but not limited to: 1. All entries on the Computerised Operational Policing System (COPS) relating to [the appellant]… 2. All entries on the [the respondent] Suspect Targeting Management Plan (STMP), or an organised crime suspect relating to [the appellant]… 3. The copy of all documents or records or files or communications relating to [the appellant]… including (without limitation) any files and records involving legal advice or consent, compulsory medical treatment and/or medical procedure, supervision and/or surveillance, management, detention, or other forms of control of [the appellant]. 4. Document includes, without limitation, originals and copies of all correspondence, letters, memoranda, minutes, written and electronic communications, emails, SMS messages, MMS messages, Chat messages, diary notes, forms, internal memoranda, telephone memoranda, reports, file notes, agreements, accounts, receipts, invoices, computer disks, computer and video and master tapes and any other form of digital or electronic storage of information. 1. In additions: Sent or received until today 22 December 2019 inclusive. From or to any of the following agencies or people: a. Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police Department and NSW Health and NSW Ambulance and NSW Ombudsman Office and NSW Housing (Bridge Housing) and NSW Office of Public Guardian and NSW Legal Aid and Attorney General's Department of NSW and Department of Home Affairs (including AFP), Commonwealth Ombudsman Office. b. Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police Department and Sydney Turkish Consulate General (including legal adviser Ecevit Demir, solicitor M. Byers) relating to [the appellant]… c. Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police Department and the Turkish Police or any other overseas agency relating to [the appellant]…. d. Any and all records regarding cooperation, agreements, memoranda and statements and communications between the NSW Police Department and Erol Ozer (and any doctors and lawyers and medical centres) relating to [the appellant]…. e. Any and all records regarding cooperation, agreements, memoranda and statements, and communications between the NSW Police Officer Murat Tuncer and Sydney Turkish Consulate General, Erol Ozer, Orhan Oner (or Omer), Dr Ugur Ergun, Hikmet Ergun or any other third party relating to [the appellant]…
COPS is an electronic database used by the NSW Police Force to record, among other things, information about incidents that may require police action.
The respondent's first decision in response to this application was the subject of a letter to the appellant dated 13 January 2020. It responded on the basis that the request for access was confined to a request for police event reports from COPS, the system referred to in Point 1 of the request. This reduced request for access had been suggested by the respondent in an email sent on 30 December 2019. The appellant had not responded to that suggestion.
The respondent's letter dated 13 January 2020, authored by Ms Astudillo, included: ….. I am proceeding with the (suggested) refined request and including a copy of the police event reports from WebCOPS. This essentially forms part of Point 1 of your requested information where you have asked to retrieve all entries from COPS. Based on the information I have accessed in WebCOPS, I believe this is a reasonable request, and you can then request further information, if need be, relating to those specific events. I believe the other requested information, noted in your application from Points 2 to 5, are too broad and would need to be refined. Please note that requesting a copy of "any and all records" is to broad and does not help us conduct adequate searches. In your future applications, I ask that you please be specific with your request, and this includes such things as providing us with a date-range. …..
Access to all or part of 17 Event Reports (each with an event reference number) were provided under the first decision. These concerned events occurring over the period from May 1994 to February 2011. The redacted information was, plainly, marked on the documents.
The letter dated 13 January 2020 said that a search of "NSWPF records" had been undertaken to identify all government information falling within the narrowed request but it did not provide any detail as to how those searches had been carried out on COPS.
By an application dated 31 January 2020, the appellant sought an internal review of this first decision. For present purposes, three aspects of this application can be noted.
First, it was said that the request concerning Points 2 to 5 of the access application was amended so as to reduce the date range to the period from 1 January 2008 to "now".
Secondly, it was said that it was considered that the respondent had not adequately searched for all information the subject of Point 1 of the request. As to this, it was said that the COPS search did not cover several documents as follows: a. The incident related occurred on 22 August 2005 between 1:50 am and 2:30 am occurred at Stage 1 in Villawood. b. The incident related occurred on 31 August 2002 in Homebush 2140, (Constable Cullen and Constable Donnavan attended) c. On 21 July 2011 NSW Police Officer, Mr Murat Tuncer attended my home at….. d. On 25 January 2012 about 7:50 AM NSW Police Officers Mr A. Brennan and Mr T Atwood visited my home at….. e. 30 April 2010 NSW Police Officer, Ms H Taylor approached me after the Court Hearing Burwood Local court with a Legal aid solicitor. f. Any document related TAFE NSW
Thirdly, the appellant objected to the redactions on the documents he had been supplied with.
The respondent did not make a decision on the internal review application within the 15 working day time requirement. Accordingly, pursuant to s 86 (5) of GIPA, the respondent was deemed to have made the original decision that was under review again. Notice of that decision was provided to the appellant by letter dated 24 February 2020.
On 9 April 2020, the appellant applied for an external review of the First Decision by the Information Commissioner pursuant to s 89 of GIPA. The result of that review was the subject of a letter on behalf of the Information Commissioner to the respondent dated 8 May 2020. It was recommended that the respondent make a new decision, including taking into consideration the appellant's refined scope of his original request. With regard to the search for Event Reports in relation to the request in Point 1, the letter said that the author was satisfied that the appellant had provided reasonable grounds to believe that further Event Reports may exist based upon the dates and locations of a number of incidents where the appellant had interaction with the respondent.
On 3 June 2020, the appellant applied to the Tribunal for external review of the respondent's decision.

[4]

The Respondent's New Decision, 15 July 2020

The respondent made a new decision in response to the appellant's access application, under s 93(2) of GIPA, in accordance with the Information Commissioner's recommendation. This decision was the subject of a letter from Matthew Smith, Senior Advisory Officer, InfoLink, on behalf of the respondent, to the appellant dated 15 July 2020.
The pertinent aspects of the respondent's new decision and the explanation provided in respect of it are set out below (the letter did not address the access request in the order we set out below but it is convenient to set them out in the order of the access request itself).
As to Point 1, it stated: You provide details of six incidents for which information was not provided in response to point 1 of the original request-entries on the COPS system relating to you. I confirm I have repeated the COPS searches made by the original decision maker using the information provided by you i.e. your name and dates specified. [our emphasis] The searches located Information Report I 187426894, dated 29 July 2011 which records an interaction between you and Sgt Tuner (sic) on 29 July 2011. I believe this may relate to the incident dated 21 July 2011 described in your internal review application… I've decided to release this correspondence in full under s 58 (1) (a) of the GIPA Act. I note the Information Report indicates police attended your home following a request for assistance from the Turkish Consulate in Sydney. I have conducted searches for any documents relating to this request in View IMS and RMS and can find no record of it, aside from the exchange of correspondence identified and released in full as noted above. I have decided, under s 58 (1) (b) of the GIPA Act, that no other information requested in point 1 of your application is held by the agency.
In the context of the immediately preceding reference to the 6 incidents, the reference in the letter to "dates specified" appears to be a reference to the dates specified in relation to these incidents. There had been no reference to any dates in the 22 December 2019 request under Point 1.
We examine the "Information Report" referred to in more detail below.
The exchange of correspondence referred to in relation to the "Information Report", which was released to the appellant, consisted of a letter to the NSW Police Force dated 22 January 2016 from the Consulate General of the Republic of Turkey Sydney and a reply to that letter from the Secretariat Office of the Commissioner, NSW Police Force dated 1 February 2016. The correspondence had no apparent connection with the matters the subject of the Information Report dated 29 July 2011.
In an affidavit sworn by Mr Matthew Smith on 8 September 2020, which was presented to the Tribunal, it was explained that "View IMS" is the system that holds records of exhibits and "RMS" holds all the administrative records held by police. It was said that these, along with COPS, were the primary document management systems used by operational policing units.
As to Point 2, the letter of 15 July 2020 indicated that Mr Smith had approached the requests in Points 2 to 5 on the basis that the request had been narrowed to the period from 1 January 2008 to 22 December 2019 only. In this regard, the letter said: The original decision did not address these points. I shall now do so. In your internal review application, you have narrowed the time period for which you seek information responsive to points 2-5 of your access applications. You now seek the requested information for the period 1 January 2008 to 22 December 2019 only. You have provided locations and other information to assist with the agency searches.
Further in relation to Point 2, the letter said that if the appellant had ever been the subject of an STMP or an organised crime suspect there would be a high number of COPS reports relating to them and there would be a reference to the STMP in the COPS report narratives. It went on to say: I have searched COPS using the identifying details provided in your application i.e.: name, address and date of birth. For the period 1 January 2008 to 22 December 2020 (sic) I located four Event Reports and one Information Report. You were not arrested or charged with any criminal offence in the period and neither did you come under suspicion for anything remotely connected to organised crime. I have decided, under s 58 (1) (b) of the GIPA Act, that the information requested in point 2 of your application is not held by the agency.
It is apparent from the letter as a whole that the four Event Reports referred to in the context of Point 2 were all Event Reports that were the subject of disclosure to the appellant under the First Decision and that the Information Report was the same Information Report now released to the appellant as referred to in respect of Point 1.
As to Points 3 and 4, it was said that an additional Event Report relating to an AVO (E 41291767) had been located from the above searches described in respect of Point 2 which was released in full to the appellant. This was a report dated 30 April 2010 in respect of which the appellant was the complainant.
It was explained that none of the now five COPS reports in the relevant period involved the consideration of medical treatment or detention by the police and the appellant was not arrested or charged during the relevant period, therefore, no police briefs would have been created. It was also stated: In addition to the searches of COPS referred to above which as noted would also have revealed the existence of documents linked to the five COPS reports identified I also searched View IMS and RMS for documents responsive to this part of your application. For the View IMS search I use the COPS report numbers as "keywords". For the RMS search I used your name in a keyword search. No documents were located in response to either search. I have decided, under s 58 (1) (b) of the GIPA Act, that the information requested in points 3 & 4 of your application is not held by the agency.
As to Point 5, it had been noted early in the letter that there was some overlap between this request and the request in Points 3 and 4. It was said that this was essentially a request for correspondence passing between police and named agencies or people in which related to the appellant. It was said that correspondence linked to a specific case or event would be saved on View IMS and documents not so linked would be saved on RMS. It was also stated: The searches I conducted of View IMS and RMS of the keywords noted above, would also have located any documents falling within the scope of this part of your application. The searches located two documents in an exchange of correspondence between the Consulate General of the Republic of Turkey in Sydney and the Office of the Commissioner of the NSW Police Force. I have decided to release this correspondence in full under s 58 (1) (a) of the GIPA Act. I have decided, under s 58 (1) (b) of the GIPA Act, that no other information requested in point 5 of your application is held by the agency.
The letter dated 15 July 2020 then addressed the subject of "Searches for Information" and stated: The searches for information included as described above, a further search of the COPS system, the View IMS system and the records management system (RMS). In addition trace requests were also sent to the relevant Police Area commands, as relevant to the locations identified by yourself, for further information related to your requests. The result of these searches is detailed in the schedule below.
The schedule listed 10 documents all of which were additional to those provided under the First Decision, save for the release of one Event Report (E 3313 3754), previously released, but now released with less redactions. The additional documents included pages from 3 police notebooks, as well as a Case Report (C 3318 2072) and other documentation all concerning the matter the subject of Event Report E 3313 3754. The Case Report indicates that it is an aspect of COPS associated with the Cumberland Command area. It addressed a subject that arose in March 2008. The schedule indicated whether the documents were released in full or in part and the basis of a redaction.

[5]

The 2011 Information Report released under the new decision

The "Information Report" referred to with respect to Point 1, which was released in full to the appellant under the new decision, featured prominently in the appellant's submissions to the Tribunal and on appeal.
Distinct from the Event Reports, the document describes itself as an "Information Report Summary" and indicates that it comes from the NSW Police Service "Intelligence Information System". Event Reports indicate that they come from the COPS system. The document has a reference number (I 187426894).
The appellant is the subject of the report. The short title of the document names the appellant and contains a statement that he may suffer from mental illness. An "Intelligence Category" is stated as "Public Mischief". There is then a reference to "Status" as "Evaluated", and "Admiralty Rating", a "Review Date" of 29 July 2022 and an "Event Date From" 29 July 2011 to 29 July 2011.
Police officer Tuncer is identified as the "Submitting Officer" and the "Submitting Station" is identified as the Counter-Terrorism Special Tactics Engagement & Hate Crime Unit. There is a narrative about a visit to the appellant's home by the police on 29 July 2011 in which the appellant is described as "POI". A "Referring Officer" from that unit is named with a date and time of creation as 3 August 2011, two "Receiving Party's" are identified as "Intel" at the Auburn Police Area Command and the Australian Crime Commission and a "Reviewing Officer" is identified with a date time reviewed shortly after the date and time of creation in respect of the Referring Officer.
The narrative contains a statement that it had been alleged that the appellant some time ago contacted his relatives in Turkey and stated that he had been kept imprisoned in a unit and been tortured. It said that the appellant's relatives contacted the Turkish Consulate in Sydney and requested assistance and that as a result the police had attended the location referred to check on the appellant's welfare. It said that police were unable to locate the appellant and spoke to his neighbours. Subsequently, that day the appellant contacted the police and stated he was well and the police suggested he contact the Turkish Consulate and his relatives in Turkey. It then said that the police were of the belief that the appellant may suffer from mental illness. The narrative finished by saying that it was for "Information only" and was to be disseminated to Flemington Local Area Command.
Plainly, this document raised the prospect that there existed other documents held by the respondent containing information connected with aspects of the document, including contact with the Turkish Consulate, the origins of the involvement of the unit concerned, sources in respect of the contents of the document and any subsequent review and reporting.
As to contact with the Turkish Consulate, in addition to the request from that source referred to in the document, the appellant informed the Tribunal (see submissions dated 17 August 2020, page 4 at d iii) that during a visit or visits to the Consulate in late 2012 he was told by the Deputy Consul General that the NSW Police had provided them with information about him to the Turkish Consul General and he provided a letter from him to the Consulate in July 2016 about this. The Tribunal did not refer to this material from the appellant.

[6]

The administrative review proceedings in the Tribunal

On 4 June 2020 the appellant lodged an administrative review application of the First Decision in the Tribunal on the basis that there had been a deemed refusal of his internal review application.
As appears from the Tribunal's reasons, and from the submissions made by the parties and the Information Commissioner to the Tribunal, his review application in the Tribunal came to be treated as an application for administrative review of the new decision dated 15 July 2020 concerning his request for information dated 22 December 2019. No date range applied to that request for the purpose of administrative review other than that it was concerned with information held by the respondent as at the date of that request.
An extensive amount of written material was presented to the Tribunal. This included written submissions from the appellant dated 17 August 2020 (two sets), 30 September 2020, 25 October 2020 and 20 November 2020, as well as an affidavit sworn by the appellant misdated 31 September 2020.
It is clear that the Tribunal confronted a particularly challenging task to identify the relevant and potentially significant material amongst this material in the circumstances. Many contentions were far from clearly expressed or explained or linked to a relevant issue or arranged in a logical fashion. Not infrequently, complaints were made about alleged mistreatment rather than focusing upon the appellant's request for information and contentions were repeated in subsequent submissions without any indication that these superseded what had been said earlier.
Nevertheless, it was sufficiently apparent that the appellant had some reasons for considering there was further requested information held by the respondent as, for example, emerged from his written submissions (7 pages) dated 17 August 2020. In those submissions, amongst other matters, the appellant: 1. Again, referred to the 6 incidents set out in his Internal Review application and said that the COPS search still did not reveal information about these incidents. He also set out an additional 7 matters in respect of which he said information had not been revealed. 2. Pointed out a number of concerns that he had about the absence of information revealed to him connected with the Information Report Summary, including that he had been told by the Deputy Counsel General at the Turkish Consulate that NSW Police had provided information regarding him to them. 3. Complained about the absence of information disclosed to him concerning correspondence between the NSW Ombudsman and the respondent regarding himself. As to this, in his subsequent written submission dated 30 September 2020, the appellant annexed a letter to him from the NSW Ombudsman dated 11 June 2004, which included a statement that the author had forwarded a copy of his complaint about police to NSW Police for appropriate action.
The evidence from the respondent in support of its decision that it held no further information consisted of two affidavits sworn by Matthew Smith on 8 September 2020 and 21 October 2020. He was the author of the letter dated 15 July 2020 about the new decision.
Mr Smith's first affidavit (8 September 2020) did not, however, depose to searches that he had personally carried out, or to searches carried out by other named persons, including the searches that had been carried out in respect of the First Decision. Instead, he set out what was stated in the letter of 15 July 2020 about searches and what had been located, including in relation to Point 1 of the request: I confirm I have repeated the COPS searches made by the original decision maker using the information provide by you i.e. your name and dates specified.
He also deposed that: 18 The Remitted Decision: ……. c. searched the COPS system, the View IMS System and the Records Management system, as well as sending trace request to the police area commands identified by the Applicant for the period 1 January 2008 to 22 December 2019 only. [Our emphasis]
He went on to describe the primary document management systems and the trace requests sent to Police Area Commands (PACs) and then deposed: 27 From my experience any relevant documents captured by the scope of the application should be held on either the COPS system, View IMS or the RMS system. The only other documents relevant to the application which might be captured by the scope of the application would be Police notebooks which would be captured by the Trace request to the relevant commands. 28 From my experience, I believe that all documents responsive to the scope of the application would have been captured by the above searches.
Importantly, Mr Smith's second affidavit (21 October 2020) did depose to the searches he had personally carried out. He stated: 6 When making a new decision it in this matter in accordance with the recommendation of the Information Commissioner, I conducted the following searches using Mr Ugur's full name, date of birth and address to identify information relevant to Mr Uger for the period 1 January 2008 to 22 December 2019: a. a search of the COPS system, b. a search of the View IMS system, c. a search of the RMS system, d. requests to nine Police Area Commands (PAC), including….. [Our emphasis]
Mr Smith in this second affidavit then deposed to various matters under the heading of "Response to Mr Ugur submissions and affidavit". This included a response in relation to the Information Report Summary, which was limited to the following: 1. He had searched the NSW Police Force staff records for an officer or staff member with the name of Murat Tuncer but this search produced no results for a current employee with this name and accordingly he was unable to conduct further enquiries. 2. As the future review date of 29 July 2022 was a date in the future, there were no records applicable to the review. 3. He noted that the events concerning this document (as well as other allegations made by the appellant) occurred many years ago and this complicated the ability to locate records, to the extent any exist. 4. As to the appellant's point that there would be communications with the Turkish Consulate, copies of correspondence with the Turkish Consulate had been identified and disclosed to him.
As we have said above, the correspondence with the Turkish Consulate referred to in (4) appeared to bear no relation to the interaction with the Turkish Consulate referred to in the Information Report Summary.
Mr Smith also deposed in this section that: 15 In relation to paragraph 26, it was noted that Mr Ugur's request included all entries on the COPS system relating to him. The COPS system has been searched and all entries corresponding to the applicant identified and, in most cases, released to him. …… 18 From my experience, I believe that all documents responsive to the scope of the application would have been captured by the above searches.
As to COPS searches, on the basis of Mr Smith's affidavit evidence, there was proof from him that he had searched COPS for relevant material but only for the period from 1 January 2008 to 22 December 2019. His evidence did not support the statement in the letter dated 15 July 2020 about searching COPS "on the dates specified", assuming that applied to the dates of the incidents the appellant had referred to, and there was no evidence as to the period or manner of COPS searches carried out in relation to the First Decision.
His affidavit evidence did not state that he had conducted a search on COPS unlimited by any date range up to the date of the request. However, in his cross-examination he gave an answer to this effect in response to a question from the Tribunal (see [25] of the reasons and transcript, page 19, and line 17).
There was no suggestion in Mr Smith's evidence that any search would require an unreasonable diversion of the respondent's resources.

[7]

The Tribunal hearing and decision

The hearing was conducted by telephone due to the COVID-19 pandemic, although, as described in the Tribunal's reasons, the appellant, at first, attempted to attend the hearing in person. This led to an adjournment for a period on the day of the hearing so as to provide for the appellant to participate by telephone.
The Tribunal's reasons also referred to the appellant having "dropped out" of the telephone call shortly before the end of the hearing. As a consequence, the Tribunal made directions to enable the appellant to obtain the sound recording of the hearing if he wished and make written submissions after the hearing.
The Tribunal noted that a document E 1816 9952 had been released to the appellant prior to the hearing (with names and details which might identify unrelated third party individuals redacted). It would seem that, along with E 41291767 (referred to in paragraph 33 above), these were Event Reports on COPS that were missed in the search relating to the First Decision.
The Tribunal referred to submissions from the appellant after the hearing that complained of procedural unfairness by not allowing him to ask particular questions of Mr Smith. The Tribunal said that questions were disallowed if they were not relevant to the issues in the case: at [15].
Having set out the terms of s 53 of the GIPA concerning searches for information held by an agency, the Tribunal said that it had followed the approach taken to a challenge to a decision that government information is not held by an agency set out by Principal Member Britton, sitting as an Appeal Panel, in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173.
This approach included, as referred to by the Tribunal, that the burden was on the agency to prove that the decision that the government information applied for was not held by the agency was the correct and preferable decision: at [20].
The following passage from the decision in Wojciechowska was then set out in the reasons: [43]…If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "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": s 53 (2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency. [44] In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53 (1)-(5). (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63 (3) of the Administrative Decisions Review Act.
The Tribunal turned to the evidence provided by Matthew Smith and, most relevantly, for present purposes stated (at [22]-[29]): 1. He had responsibility for the decision made on 15 July 2020. His evidence was that searches were conducted in the NSW Police document management systems used by operational policing units namely COPS, View IMS and RMS and trace requests sent to specific police area commands to include other documents such as police notebooks. 2. Under cross-examination Mr Smith said that in searching for information under Point 1 (at [23]); 1. He repeated the searches in COPS using the name and dates specified in the original request and identified an additional Information Report dated 29 July 2011. 2. He searched in View IMS and RMS for any reference to attendance by police at the appellant's home which was referred to in the Information Report above but was unable to find any. 1. In relation to Points 3 and 4, he searched COPS for records relating to the appellant without any date limit at [25]. He only found one additional report relating to an AVO. 2. He also searched View IMS using the COPS report numbers as keywords and RMS using the appellant's name (at [26]. No documents were located. 3. In February 2020, he made trace requests to Auburn, Bankstown, Cumberland, Parramatta, Leichardt, Inner West, Lake Illawarra, Fairfield and Burwood PACs. Those requests provided the appellant's full name and Event numbers relevant to the PAC. 4. As to Point 5, he said that it emerged that Murat Tuncer had left the Police Force, he did not approach Mr Tuncer's previous police unit "as he did not believe there are any more documents to be found there'' [28]. 5. Based on his experience of conducting searches of these systems, he did not believe there were any more records to be found: at [29].
The Tribunal concluded that it was satisfied on the balance of probabilities that Mr Smith conducted "these searches as stated": at [30].
The Tribunal did not proceed to expressly address and determine the question whether these were reasonable searches. This was a deficiency identified by the Appeal Panel in Wojciechowska: at [46].
Instead, the Tribunal then turned to a question whether there was any evidence which could potentially tend to prove that any other requested information was held by the respondent but had not been produced to the appellant: at [31]-[34].
With respect to this issue, the Tribunal said that the only evidence of this nature before the Tribunal related to Mr Tuncer. In this context, the Tribunal referred to some, but not all, of the aspects of the intelligence information report referred to above concerning the event of 29 July 2011: at [32].
The Tribunal then said under the topic "Consideration": 33 Mr Smith did not approach this Unit as part of his searches. He said that he did not approach Mr Tuncer's former unit as he did not expect it would hold any information. This was because the report by Mr Tuncer stated it was "for information only' and it was disseminated to Flemington Local Area Command. It follows that Mr Smith believed Mr Tuncer's Unit did not take any further action on the matter because it was for information only. I agree that this is a logical inference to make. Mr Smith did obtain copies of notebook entries from police officers at Flemington Local Area Command relevant to Mr Ugur's request. 34 In my view this evidence does not indicate that any further information sought is held by the agency. The correct and preferable decision then is to affirm the decision of the agency in this respect.
Having decided that the correct and preferable decision was that the respondent did not hold any further information as requested, the Tribunal turned to the redactions issues.
The Tribunal directed itself to the respondent's case that the redactions relied upon clauses 2 (a) and 3 (a) of s 14 of GIPA which were, respectively, concerned with disclosure of information which could reasonably be expected to have the effect of revealing the identity of an informant and with disclosure of information which could reasonably be expected to reveal an individual's personal information.
The Tribunal said it had reviewed the redactions made: at [45]. It concluded that it was satisfied that disclosure of the information could reasonably be expected to reveal the identity of one or more informants and also discourage such informants from providing information to the police in the future and that with respect to the other information withheld, which did not fall under clause 2 (a), it was satisfied this would reveal the personal information of a number of unrelated individuals: at [49] and [51]. It then weighed the public interest considerations for and against disclosure and concluded that the public interest considerations in favour of disclosure were important but not as significant as the potential harm which could be caused by disclosure: at [53]
Accordingly, it affirmed the decision to withhold the redacted information.
One paragraph of the Tribunal's reasons concerning the redacted information was marked as "NOT FOR PUBLICATION" and was the subject of an order made pursuant to s 107 of GIPA and s 64 of the NCAT Act that its contents were not to be disclosed to the public or to the appellant: [39]-[41].

[8]

The Tribunal's inaccurate account of Mr Smith's evidence concerning searches

The Tribunal's account of Mr Smith's evidence concerning searches of COPS, View IMS and RMS and by trace requests contained some inaccuracies.
It is apparent that it saw the evidence he gave about searches on COPS as consisting of: 1. Evidence given in cross-examination that with respect to Point 1 of the request he had repeated the searches in COPS using the name and dates specified in the original request (at [23 (1)]) of the reasons). 2. Evidence in relation to Point 2 of the request that he searched COPS using the appellant's name, address and date of birth (at [24] of the reasons). 3. Evidence in relation to Points 3 and 4 of the request that he searched COPS for records relating to the appellant without any date limit (at [25] of the reasons).
However, this account made no reference to the specific affidavit evidence Mr Smith gave about the searches he personally conducted on COPS which was for the period 1 January 2008 to 22 December 2019 (paragraph 6 of his second affidavit). Mr Smith did not give evidence in the terms set out in (a) and (b). He did give evidence in cross-examination (in response to a question from the Tribunal) in terms of (c), except that this evidence was not confined to being in relation to Points 3 and 4 (see transcript, page 19, line 17).
The account referred to in (a) and (b) appears to be based upon statements in his letter dated 15 July 2020, except that in that letter he did not say with respect to Point 1 that the searches had been for the date specified "in the original request". There were no dates specified in the appellant's request of 22 December 2019.
The Tribunal said that under cross-examination Mr Smith had said that he searched in View IMS and RMS for any reference to attendance by police at the appellant's home as referred to in the Information Report Summary (at [23 (2)]). However, this was a statement in the 15 July 2020 letter not a statement made in evidence from Mr Smith.
The Tribunal said that Mr Smith searched View IMS and RMS in particular ways but did not refer to the period for which Mr Smith said he had done so, namely 1 January 2008 to 31 December 2009 (paragraph 6 of his second affidavit).
The Tribunal said that in February 2020 Mr Smith made trace requests to identified PACs but, again, did not refer to the period for which Mr Smith said he had done so, namely 1 January 2008 to 31 December 2009 (paragraph 6 of his second affidavit)

[9]

GIPA provisions concerning decision that information is not held by the respondent

The following provisions of GIPA concern that part of the reviewed decision that the respondent did not hold the information sought: 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. 58 How applications are decided (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note - These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part - ….. (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, ….. 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

[10]

Grounds of appeal

The appellant may appeal as of right in respect of any question of law and otherwise requires leave to appeal: s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
The appellant lodged a Notice of Appeal on 24 December 2020 accompanied by a 9 page document headed "Grounds of Appeal", along with a 21 page document being written submissions of the appellant to the Tribunal dated 24 November 2020. On 1 February 2021, he lodged another 9 page document headed "Additional Grounds for Appeal". Also, on 1 February 2021 the appellant lodged a 12 page document headed "Leave to Appeal". On 31 March 2021, the appellant lodged an Amended Notice of Appeal accompanied by a 2 page document headed "Application For Leave to Appeal".
In addition to these documents the appellant filed and served written submissions on 2 March 2021 and a document headed "Outline of Argument of the Applicant/Appellant" (43 pages) on 10 June 2021 (the day before the appeal hearing). On 7 April 2021 he also filed and served 4 folders of documents (with indices). These contained all of the above documents (apart from the Outline of Argument), as well as other documents from the proceedings below. One of these folders (Folder 2) contained what was described as "New Evidence".
There was considerable repetition of points and arguments amongst the documents concerning grounds of appeal and submissions. Many questions were raised and points and arguments made without reference to any specific, alleged error in the Tribunal's reasons. Interspersed amongst the material were references to alleged events and evidence that were not linked to alleged error by the Tribunal. Many of such references contained allegations of misconduct by various public authorities toward the appellant.
At the hearing of the appeal the Appeal Panel asked the appellant to direct his arguments to the parts of the reasons which he claimed contained error. The appellant often strayed from this task, however, aspects of what he said did assist in understanding matters of potential significance in respect of his appeal.
The appellant had no legal representation. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal and that in such circumstances it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. We have approached the appeal in this manner.

[11]

Grounds of Appeal concerning decision that information was not held

In determining this appeal in respect of the Tribunal's decision concerning the issue whether the respondent held requested information it is sufficient that we identify the following alleged errors. 1. Error of law in failing to apply the correct test (Ground 1). 2. Error of law in concluding that the correct and preferable decision was that the respondent did not hold any further requested information in the absence of probative evidence to support that conclusion or in circumstances where that conclusion was not reasonably open on the facts (Ground 2). 3. Error of law in failing to consider critical evidence from Mr Smith that he had limited his searches to the period from 1 January 2008 to 22 December 2019 (Ground 3). 4. Plain error and flawed conclusion as to the searches conducted by the respondent resulting from misunderstanding the evidence given by Matthew Smith and inconsistencies in his evidence (Ground 4). 5. Error of law in failing to consider the appellant's submissions and evidence, including submissions concerning unreliability of Mr Smith's evidence about searches due to inconsistencies in his evidence and lack of written corroboration and submissions that the COPS searches did not cover several documents in relation to interactions concerning himself and the respondent specified by the appellant (Ground 5). 6. Error of law due to procedural unfairness in disallowing various questions asked of Matthew Smith during his cross-examination by the appellant and with respect to other aspects of the conduct of the hearing (Ground 6). 7. Error of law in failing to give adequate reasons for its decision in respect of the question concerning whether the agency held the information requested (Ground 7).
A ground of appeal that we have not listed concerned an attempt to rely upon new evidence. As appears below, in view of the decision we have reached in relation to other grounds of appeal, it is not necessary for us to address this ground of appeal. However, we do note that none of the "new evidence" that the appellant sought to rely upon was evidence that came into existence, or was discovered by the appellant, after the hearing in the Tribunal, which was a substantial obstacle in the way of a successful appeal based upon this ground.

[12]

Grounds of Appeal concerning redactions

In its written submissions on appeal dated 19 May 2021 the respondent justifiably said that it understood the appellant sought to challenge the first aspect of the decision and that it was unclear if it was sought to challenge the second aspect of the decision concerning redaction of information in documents released.
As to this, we could not discern any challenge to the redactions aspect of the decision in the Notice of Appeal or Amended Notice of Appeal documents referred to above, including those concerning additional grounds for appeal or leave to appeal, other than the following reference in the appellant's "Leave to Appeal" document dated 1 February 2021 (at pages 4 and 5): 4. The Tribunal also used fallacious argument favour to the Agency that "….. does not indicate that any further information sought is held by the agency" then the Tribunal applied Suppression Orders [footnote reference to paragraph 41 of the Tribunal's reasons] to cover up the Agency misused its power to set up unlawful custody (or entrapment) for the applicant, without ever being interrogated, charged, or presented in court and the Tribunal acting under dictation, bad faith and improper purpose. The Tribunal needs to used her decision pursuant to s 64 (1) (b) and (d) of the Civil and Administrative Tribunal Act 2013, however the Tribunal failed to specify to certain circumstances in which non-publication or suppression provision applies this case which information received by GIPA Act….. [Terms of these provisions are set out] The parties did not make an application. It is inadequate reasons. This is unfair.
At the hearing of the appeal, Ms Windsor, who appeared for the respondent, accepted that it appeared from the written submissions (Outline of Argument document) filed and served on 10 June 2021 and from the appellant's oral submissions that he was challenging the redaction decisions.
We agree that this was the case and we address the appeal concerning the redaction decisions later in these reasons.

[13]

Ground 1- Error of law in failing to apply the correct test

At various places in the Grounds of Appeal document attached to the Notice of Appeal the appellant contended that the Tribunal failed to apply s 53 (2), wrongly interpreted the key legislative provisions and misinterpreted what was said at [44] (1) in Wojciechowska.
The respondent submitted that the Tribunal applied the correct and orthodox approach to the question of access to the information by considering the evidence as to the searches that were undertaken. We do not agree that it did so.
The Tribunal, correctly, recognised that the burden was on the respondent to prove that the correct and preferable decision was that the information requested was not held by it (at [20]).
The Tribunal's reasons (as analysed above) then indicate that it followed a two-step process. First, it came to the conclusion that various searches for the information had been carried out (based upon the evidence of Matthew Smith). Then, it turned to the question whether there was any evidence tending to prove that the respondent held any of the further information requested. Having decided that there was no such evidence, it arrived at its conclusion to affirm the respondent's decision.
However, this approach did not address the issue whether reasonable searches had been carried out, as required by s 53 (2), and does not accord with the approach in Wojciechowska that the Tribunal itself referred to in circumstances where it was plain that this was a central issue in the case. The Tribunal had referred to the fact that the appellant considered that the respondent did not undertake sufficient searches: at [11 (1)] of the reasons.
As we examine in a moment, there were real issues to be explored as to whether reasonable searches had been carried out in a context where, as we have already said, it was plain that the respondent would be holding some information of the nature requested (because of the degree of interaction between the appellant and the respondent over a number of years) and in a context where information revealed since the First Decision provided reason to believe that more information may be held.
The relevant reviewable decision was the respondent's decision that the respondent did not hold further information responsive to the appellant's application for information (a decision affirmed by the Tribunal: see its reasons at [34]). The Tribunal does not have jurisdiction to review the question of whether an agency has conducted reasonable searches under s 53(2) of GIPA, per se. However, as explained in Wojciechowska at [37] to [39], where the Tribunal (or Appeal Panel) considers that reasonable searches have not been conducted, that is relevant to whether a decision that an agency does not hold further information is the correct and preferable decision within s 63 of the ADR.
The Tribunal's affirmation of the respondent's decision that the respondent did not hold further information was vitiated by its failure to assess whether the respondent had conducted reasonable searches.
Accordingly, we agree with Ground 1 of the appeal.

[14]

Grounds 2 - lack of probative evidence, conclusion of fact not reasonably open

In any event, as examine below, in our opinion, there was no probative material presented to the Tribunal that the respondent had carried out reasonable searches and held no further information concerning the Information Report Summary or with respect to information contained on RMS or through trace requests.
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
The evidence in support of the decision that no further information was held by the respondent consisted of the two affidavits from Matthew Smith and answers in his cross-examination.
At various parts of his written and oral submissions, the appellant was critical of the Tribunal's reliance upon Mr Smith's belief that no further information was held with respect to the Information Report Summary, and more broadly.
As we have already said (see paragraph 44 above), plainly, aspects of the Information Report Summary raised the prospect, at least, that the respondent held further information in relation to its contents.
The Tribunal relied upon some of Mr Smith's affidavit evidence (see paragraph 56 above) about Mr Tuncer having left the police force (at [28] of the reasons), along with an explanation that Mr Smith gave in cross-examination (see paragraph 74 above) for not approaching Mr Tuncer's unit about the existence of further information: at [28] and [33]. Mr Smith said he believed the unit would not hold any further information because he inferred from the reference in the narrative of the document to "Information only" that the unit did not take any further action on the matter.
However, that explanation did not address the prospect that there was already existing information held by the unit at the time of the Information Report Summary in relation to such matters as the involvement of the unit in the matter, the sources of the information in the document about the appellant, the establishment of a review process concerning the appellant and communications with the Turkish Consulate. Nor did the explanation address the prospect that there was information held by the unit about its response to the request for assistance from the Turkish Consulate referred to in the document and about any further communications with Auburn PAC, Flemington LAC and the Australian Crime Commission resulting from dissemination of the report to them.
The contents of the report invited such enquiries but the explanation from Mr Smith was unresponsive to these matters. Furthermore, it would appear to have been a simple matter to make enquiries of the unit, regardless of Mr Tuncer's departure, and there was no suggestion of any unreasonable difficulties in that connection.
In these circumstances, in our opinion, there was no foundation for his belief that the unit would not hold any further information and his evidence about this lacked any relevant probative force.
As to searches on RMS and through trace requests, the only evidence from Mr Smith was that he conducted a search of RMS and made trace requests to identify relevant information for the period 1 January 2008 to 22 December 2019 (see paragraph 55 above). This was consistent with what he said in the letter of 15 July 2020.
There was no evidence of such searches for information relating to the appellant prior to 1 January 2008 despite the interaction that had occurred concerning the appellant at earlier times and there was no evidence to suggest that such searches would be fruitless or unreasonable. Accordingly, Mr Smith's evidence as to his belief that all documents responsive to the scope of the application would have been captured by the searches carried out did not apply to information on RMS what might be obtained through trace requests for the period prior to 1 January 2008.
Accordingly, whilst Mr Smith had expressed his belief that there was no further requested information, such evidence lacked any probative force concerning information on RMS and information obtainable from trace requests prior to 1 January 2008.
Another way of approaching the matter, is that, for the same reasons, it was not reasonably open to the Tribunal to conclude that the correct and preferable decision was that no further information was held by the respondent.
Accordingly, in this way we agree with Ground 2 of the appeal.
As appears below, a different issue arises in respect of the conclusion of the Tribunal in so far as it applies to relevant information on COPS.

[15]

Grounds 3 and 4

We have already referred to the terms and significance of Mr Smith's affidavit evidence as to the searches he personally conducted relating to the new decision (paragraphs 55, 59 and 60 above). We have also analysed the Tribunal's account of Mr Smith's evidence and the absence of any reference to this important affidavit evidence from Mr Smith.
In the circumstances, we conclude that the Tribunal overlooked Mr Smith's affidavit evidence. It was an error of law for it to do so: see Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63].
It can readily be seen that this error affected the conclusion of the Tribunal in relation to further information held in so far as information on RMS and that obtainable from trace requests was concerned.
It should also be seen as affecting the Tribunal's conclusion insofar as information on COPS was concerned. Neither Mr Smith's evidence at the hearing nor the Tribunal addressed the inconsistency between his evidence in his affidavit and the evidence given in cross-examination that he searched COPS without a date range. Absent an explanation, the inconsistency affected the weight to be given to his evidence at the hearing. Added to this, was an, apparently, different account of the dates applied to his COPS search given in the letter dated 15 July 2020. These matters adversely affected the strength of Mr Smith's evidence but were not addressed by the Tribunal, nor were they overcome by any incontrovertible written proof of the searches that had been carried out.
We have already referred to the inaccuracies in the Tribunal's account of Mr Smith's evidence. Another way of analysing the situation on appeal is that there was factual error by the Tribunal of such a nature that it would be unjust to allow the decision to stand such that leave to appeal should be granted and the appeal allowed in part: see point 3 in the Collins v Urban decision referred to in paragraph 89 above.

[17]

Redactions

At the hearing of the appeal, the appellant said that the complaints that he had about the Tribunal's decision concerning the redactions in the information supplied to him were: 1. The Tribunal had no power to make the order that part of its reasons should not be disclosed to the appellant or the public because none of the parties had asked for such an order to be made. 2. The persons concerned were not informants. 3. In any event, these names should not be withheld from disclosure because no charges had resulted from the information provided. 4. The information ought to have been disclosed to him because it was connected to his detention and there was considerable public interest in such circumstances. 5. All of the matters concerning the public interest for and against disclosure set out in his written submissions to the Tribunal dated 17 August 2020.
As to (1), an exercise of the powers in s 107 of GIPA and s 64 of the NCAT Act is not dependent upon a request from a party for such an order to be made. Under s 107 of GIPA the Tribunal is required to ensure that in its reasons for decision it does not disclose any information for which there is an overriding public interest against disclosure. It is apparent that the Tribunal proceeded to make the relevant order pursuant to s 64 (1) (b) and (d) of the NCAT Act because of that requirement. Accordingly, we reject this contention by the appellant.
As to (2), the appellant did not point to any basis for error by the Tribunal in its interpretation or application of the meaning of "informant" in cl 2 (a) of the Table in s 14 of GIPA and we do not discern any such error.
So far as the application of the meaning of "informant" to the facts is concerned, the appellant is, greatly, disadvantaged by not being able to see all of the reasons of the Tribunal and the contents of what has been redacted.
At the hearing of the appeal, we suggested to the parties that we should examine all of the "NOT FOR PUBLICATION" reasons and the redacted material so as to enable an effective challenge on appeal in this area. The respondent had no objection to us doing so. However, despite our attempt to explain the situation to him, the appellant was, emphatically, against us taking this course. Accordingly, we have not done so.
For these reasons, we reject this contention by the appellant.
As to (3), the fact that no charges have resulted is not to the point. Clause 2 (a) is concerned with the protection of the public interest in the provision of information from informants regardless of whether or not the information results in the laying of charges. Accordingly, we reject this contention.
As to (4), we do not see how this factor affects the outcome of the balancing exercise whether the appellant's reference to "detention" be a reference to his past detention at the Villawood Detention Centre or a reference to his assertion that he was, currently, experiencing a kind of detention by the police. We reject this contention.
As to (5), we have considered these submissions but we do not see how they present any additional matters of any merit beyond what we have already addressed above.
For these reasons, we reject the appellant's challenge on appeal to the Tribunal's decision to withhold from disclosure the information the subject of the redactions in the documents provided to the appellant.

[18]

Outcome of the appeal

Because of the errors we have identified in respect of the decision concerning whether requested information is held by the respondent, the Tribunal's decision about this subject must be set aside. This has the potential consequence that the appellant's application for administrative review of the decision of 15 July 2020 needs to be redetermined by the Tribunal insofar as it concerns any information held by the respondent as at 22 December 2019 which is not the subject of the Tribunal's decision concerning the redactions.
However, given the nature of the issues we have addressed in these reasons concerning whether further requested information is held by the respondent, we think it would be sensible and convenient to remit to the respondent for reconsideration its decision concerning the access application. Such a course provides a prospect that further litigation in the Tribunal about the request for information might be unnecessary or, at least, narrowed in its scope. However, against the risk that such litigation is required, we will provide for that possibility in the orders we make.
In this regard, we have in mind s 65 of the ADR which provides as follows: 65 Power to remit matters to administrator for further consideration (1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator. (2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a new decision in substitution for the decision set aside. (3) If the administrator varies the decision: (a) the application is taken to be an application for review of the decision as varied, and (b) the person who made the application may either: (i) proceed with the application for review of the decision as varied, or (ii) withdraw the application. (4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside: (a) the application is taken to be an application for review of the new decision, and (b) the person who made the application may either: (i) proceed with the application for review of the new decision, or (ii) withdraw the application.
We have power to set aside the decision under appeal and substitute another decision for it under s 81(1)(d) of the NCAT Act. Accordingly, pursuant to that provision, we have set aside the Tribunal's decision that the respondent did not hold further information responsive to the appellant's access application, and in substitution for that decision, we have made orders pursuant to s 65 of the ADR.

Ugur v Commissioner of Police

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)

Cited By (2)