Wojciechowska v Commissioner of Police - [2020] NSWCATAP 257 - NSWCATAP 2020 case summary — Zoe

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Wojciechowska v Commissioner of Police

[2020] NSWCATAP 257

NCAT Appeal Panel|2020-12-07

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Source facts

Court

NCAT Appeal Panel

Decision date

2020-12-07

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

REASONS FOR DECISION

Ms Paulina Wojciechowska successfully appealed against a decision made by the Tribunal, which affirmed a decision made by the Commissioner of Police, NSW Police Force ("the Commissioner") under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act): Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1. The Appeal Panel, constituted by myself, set aside the Tribunal's decision and decided to deal with the appeal by way of a new hearing: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 ("the Appeal Decision").
The Commissioner's decision was made in response to an "access application" made by Ms Wojciechowska under the GIPA Act seeking among other things, "guidelines used by the NSW Police Force ("NSWPF") concerning the use of terms 'person of interest' and 'victim' in entries made in COPS". COPS is an electronic database used by the NSW Police Force to, among other things, record information about incidents that may require police action.
The Commissioner identified a single document, the COPS User Guide ("the Guide"), as falling within the scope of the information requested by Ms Wojciechowska. The sole issue addressed in these reasons is whether that decision, an "information not held" decision (s 58(1)(b) of the GIPA Act), is the correct and preferable decision. These reasons should be read in conjunction with the Appeal Decision, which sets out the background to the decision made by the Tribunal and the relevant legislative provisions.
For the reasons that follow, I have decided that the "information not held" decision is the correct and preferable decision.

[2]

[3]

Background facts

To put the submissions in context, it is useful to set out some background facts to the decision the subject of the appeal.
In an access application made on 25 March 2019, Ms Wojciechowska requested the following items of information: "1. Definitions of terminology and abbreviations used in COPS such as 'Person of Interest', 'Victim', 'Occurrence', 'Status: verified' etc; 2. Rules governing when it is permitted to enter a person as a 'person of interest' and a 'victim'; 3. Rules regulating the creation of entries and data entries in COPS; 4. Manuals with rules how to use the COPS; 5. Internal policies of NSW Police or binding internal directives of NSW Police or its officials on investigating reports of destroyed vegetation on private land under ss 140 and 513 of Crimes Act 1900." In these reasons I will refer to Items 1 to 4 inclusive as "the requested information".
In a decision made on 17 June 2019 ("the Original Decision"), a delegate of the Commissioner identified the Guide as the only document containing the requested information. The delegate decided to refuse to grant Ms Wojciechowska access to the Guide, asserting that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The delegate concluded that disclosure of the Guide could reasonably be expected to prejudice the effective exercise by NSW Police of its functions (cl 1(f) of the Table to s 14 of the GIPA Act) and endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person (cl 2(d) of the Table to s 14 of the GIPA Act).
In the notice of that decision, the delegate stated that he was unable to find any information that fell within the scope of Item 5 of Ms Wojciechowska's request and set out the steps taken to locate that information. (That decision is not the subject of Ms Wojciechowska's application for administrative review). In addition, the delegate made an implicit decision that apart from the Guide, the NSWPF did not hold any information in relation to Items 1 to 4 of Ms Wojciechowska's request.
Dissatisfied with that decision, Ms Wojciechowska applied to the NSW Civil and Administrative Tribunal (NCAT) for review of that decision. Subsequently, a delegate of the Commissioner made a further decision, reversing the decision not to grant Ms Wojciechowska access to the COPS User Guide and granting Ms Wojciechowska access to the Guide ("the Supplementary Decision").
At the hearing of the application for review before NCAT, Mr Smith, the delegate who made the Supplementary Decision, testified that he had conducted searches for the information requested by Ms Wojciechowska and the only information found was that contained in the Guide.

[14]

Consideration

Before addressing the parties' submissions, it is useful to set out some background facts.
In September 2018, Ms Wojciechowska reported to NSW Police that trees on her property had been removed without her permission. Dissatisfied with their response, Ms Wojciechowska made a complaint about the attending police officers to the Commissioner. In response to an access application made under the GIPA Act, the Commissioner gave Ms Wojciechowska copies of the COPS entries made by the attending officers which apparently described Ms Wojciechowska as a "person of interest". She found that description to be "shocking and devastating". That description was apparently the trigger for Ms Wojciechowska's decision to make the access application, the subject of these proceedings.
A review of the Guide reveals that it contains explanations of the terms listed in Item 1. I am unable to accept Ms Wojciechowska's argument that the use of the term "principally" in the definition of person of interest indicates that another definition exists which the Commissioner has failed to disclose. The first sentence of the definition gives a general description of the term; the second gives a non-exhaustive list of categories of persons who fall within that definition. Contrary to the submission made by Ms Wojciechowska, the use of the term "principally" indicates that the general description "any person whose activities have come to the attention and interest of police over time" is not exhaustive.
With respect to the term "victim", I reject the submission that because the Guide uses examples to explain the meaning of that term, it cannot be said to be a definition. The use of examples to define a term is a conventional drafting technique used to define terms which have a number of possible meanings. See for example the definition of "employer" in s 5 of the Child Protection (Working with Children) Act 2012 (NSW).
With respect to Item 2, Ms Wojciechowska submits that it is implausible that the only guidance or rules about the use in COPS of the terms "person of interest" and "victim" are those provided by the Guide. The premise which underlies that submission is that the Guide does not provide detailed or sufficiently detailed guidance or rules about the use of these terms. I do not accept that premise.
As detailed above, the Guide provides guidance on the use of the terms, "victim" and "person of interest". Whether the Guide could provide better or more detailed guidance is not to the point. Ms Wojciechowska's real complaint appears to be that the Guide does not provide an adequate explanation of why she was described as a person of interest in the COPS entry, the subject of her initiating complaint. The answer to that question probably can only be answered by the officers who made the offending entry.

[18]

Did Mr Smith, as claimed, search for the requested information?

As noted in the Appeal Decision at [94]-[98], the Commissioner gave Ms Wojciechowska the draft and final version of the notice of the Supplementary Decision. In the latter, referring to the obligation to conduct reasonable searches imposed by the GIPA Act, Mr Smith stated: Under the GIPA Act, NSWPF must conduct reasonable searches to locate the government information you seek. A search of NSWPF records has been undertaken to identify all government information falling within the scope of your application. The results of these searches are listed in the Schedule of Documents included in the Notice of Decision. I can confirm that searches were carried out on various Databases such as the Computerized Operating Policing System (COPS), the Records Management System (RMS) as well as the NSW Police for intranet for policy and procedural information which would be captured under your application.
In evidence given in the proceedings at first instance, Mr Smith claimed that for the purpose of making the Supplementary Decision, he: 1. conducted searches for the requested information on three data bases: COPS, the NSW Police Force Records Management System (RMS) and the NSW Police Force Intranet ("the Intranet"); 2. used key words "COPS definitions", "COPS terminology", "COPS User guide", "definitions COPS" and "rules COPS" to search those databases; 3. using those key words, searched the policy folder of the Intranet, where, according to Mr Smith, all policies relating to NSWPF's investigative functions are held; 4. reviewed the title content of each policy located by the above key word searches; 5. examined each of those policies and found none contained the requested information; 6. consulted a colleague, a serving police officer, about where to search for the requested information and was told that she would search in the three databases listed in (2) above.
Mr Smith claimed that apart from the Guide, the searches described above produced no results.
While Ms Wojciechowska challenges Mr Smith's "credibility" (see below), she does not suggest that he did not undertake the searches described above. Having reviewed the affidavit dated 30 September 2019, prepared by Mr Smith for the proceedings at first instance, together with the oral evidence he gave in those proceedings, I am satisfied that, as claimed, Mr Smith conducted the searches described above.

[22]

Attention to detail "significantly below average"

In support of this contention, Ms Wojciechowska points to the oral evidence given by Mr Smith in the proceedings at first instance. She claims it reveals that Mr Smith: 1. "does not know what he wrote in his affidavit; 2. reads by omitting words; 3. admits to making numerous mistakes in his affidavit; 4. cannot find a page that is right in front of him in the circumstance where both pages are printed on the same side; 5. has problems distinguishing one document from another."
Having reviewed the extracts of the transcript on which Ms Wojciechowska relies, I am not persuaded that they support the above claims, less still a finding that Mr Smith's attention to detail is "significantly below average".
For example, in respect of the claim that Mr Smith "did not know what he wrote in his affidavit", the extract of the transcript on which Ms Wojciechowska relies reveals that in oral evidence Mr Smith stated that before searching the Intranet using the keywords listed at [38] above, he conducted what he described as a "generalised search". In oral evidence he acknowledged that he omitted to mention that claim in his affidavit. This reveals that Mr Smith did not record every step he took in searching for the requested material. However, it does not establish that Mr Smith "did not know what he wrote in his affidavit". They are not one and the same.
With respect to the second claim, in cross-examination after reading, at Ms Wojciechowska's request, the requested information listed in the initiating access application, Ms Wojciechowska stated that Mr Smith omitted to read the phrase "definitions of terminology" contained in Item 1 ("Definitions of terminology and abbreviations used in COPS such as 'Person of Interest', …" (emphasis added)). The transcript reveals that Ms Wojciechowska is mistaken: MS: "I am requesting the following information: (1) definitions of terminology and abbreviations used in COPS … … PW: Yeah. Because I didn't catch when you were reading point 1, can I get you to read it again? Because I just couldn't hear. Definitions of terminology (Emphasis added) (Transcript Wojciechowska v Commissioner of Police, 2019/00205731, 8 October 2019 p 18)

[24]

Consideration

Dealing first with the challenge to Mr Smith's expertise, Ms Wojciechowska misstates the evidence. Mr Smith did not "admit" as Ms Wojciechowska asserts to having "no knowledge about the operators that can be used in the search engine he uses". In cross-examination, Mr Smith acknowledged that he was not across the "fine detail" but disagreed with the proposition that he had no knowledge about the operation of search engines. He pointed out that he had received some training about their operation.
In addition to the Guide, the NSWPF undoubtedly holds information which contains numerous references to the terms, "victim", "person of interest" etc., and guidance/rules about the use of those terms. However, that was not the information described by Ms Wojciechowska in her access application. She did not request information at large about the terms, "victim", "person of interest" etc., but information about their use in COPS. Similarly, the request in relation to the "rules" governing the use of those terms and the creation of data entries using those terms was made in respect of COPS. The criticism made by Ms Wojciechowska of the search terms used must be seen in the context of the nature and scope of the information requested. I am unable to accept the contention that the search undertaken was flawed because the search terms used by Mr Smith were unduly narrow.
With respect to the "best practice" search outlined by Ms Wojciechowska in submissions, she did not disclose the basis for her professed knowledge of and skill in the use of search engines. Nor did she provide any independent evidence which might support the proposition that the search she proposed is likely to have been more effective than that undertaken by Mr Smith.
It may be that, had Mr Smith approached the electronic searches in a different way, additional information that fell within the scope of the requested information may have been uncovered. A forensic IT expert may have been able to locate additional information. It does not follow, however, that the searches conducted by Mr Smith did not satisfy the obligation imposed by s 53 of the GIPA Act to "undertake such reasonable searches as may be necessary to find any of the government information applied for…". (emphasis added)

[30]

Conclusion

It falls to the Commissioner to establish that the "information not held" decision is justified. Relevant to that assessment is whether the NSWPF complied with the obligation imposed by s 53 of the GIPA Act.
At [36]-[38] of the Appeal Decision, I considered the nature and scope of that obligation. To restate, s 53 requires an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). That obligation is limited to "information held by the agency when the [access] application is received": s 53(1). The search must be conducted "using the most efficient means reasonably available to the agency": s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources".
As discussed at [37] of the Appeal Decision, whether there are reasonable grounds to believe that the information the subject of an access application exists and is held by an agency, is plainly relevant to the nature and extent of the searches necessary to discharge the obligation under s 53. Here, it could not be said that it is farfetched or fanciful that in addition to that contained in the Guide, the requested information exists and is held by the NSWPF.
For the reasons outlined above I accept, as contended by the Commissioner, that the Guide comprehensively answers Ms Wojciechowska's request for the information described in Items 1-4. While relevant, that does not fully answer whether the NSWPF has satisfied the obligation imposed by s 53.
I accept, as submitted by Ms Wojciechowska, that a relevant factor in determining whether the NSWPF satisfied that obligation is whether, at the time Mr Smith searched for the requested information, he had sufficient knowledge of the NSWPF's databases and how to search those databases together with the skill to be able to apply that knowledge. I accept, as Mr Smith claims, that he is familiar with the NSWPF's databases and has received some training in how to search them. Nonetheless, he could not be described as a forensic IT expert. A person with such expertise is likely to have been able to conduct a more rigorous and comprehensive search. It does not follow that the obligation imposed by s 53 is not satisfied. It requires "reasonable searches" to be undertaken using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically" (s 53(3)). Notably, an agency is not required to undertake any search that would require a "substantial and unreasonable diversion of the agency's resources": s 53(5). There may be cases where a person's lack of knowledge of an agency's databases and/or lack of knowledge and/or skill in retrieving information, tends to indicate that the search undertaken could not be characterised as reasonable. I am not persuaded that this is such a case.
Ms Wojciechowska may be correct in her belief that the NSWPF holds further information which falls within the scope of her request. While s 105 requires the NSWPF to establish that the "information not held" decision is justified, it does not require the NSWPF to disprove that it holds the requested information. Having reviewed the available material and the submissions made by the parties, I am satisfied on balance that the NSWPF has discharged the obligation imposed by s 53.
For these reasons, I conclude that the "information not held" decision is the correct and preferable decision.

Wojciechowska v Commissioner of Police

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