Wojciechowska v Commissioner of Police

Procedural History

1. The proceedings initially came before the Tribunal for final determination on 7 April 2021, with the Tribunal constituted by Senior Member Goodman SC (as he was then).
2. On 10 November 2021, the Tribunal published it decisions - Wojciechowska v Commissioner of Police [2021] NSWCATAD 328. Prior to the hearing, the applicant had filed an application for miscellaneous matters on the basis that the Tribunal did not have jurisdiction to determine her matter because if the Tribunal were to determine the review application it would be purporting to exercise federal judicial power because the applicant is a resident of Tasmania, and the respondent is an emanation of the State of New South Wales. At [12] of the reasons for the decision the Tribunal determined that it was satisfied that a determination of the review application would not involve an exercise of judicial power and that the Tribunal has jurisdiction to determine the review application. In relation to the substantive review application the Tribunal stated at [13] - [14] of the reasons for the decision that: The applicant did not participate in the hearing of the review application. The reason she gave was that she was concerned that her participation in the hearing of the review application may have been regarded as a concession that the Tribunal had jurisdiction to hear that application. In circumstances where it is not apparent that the applicant wishes the review application to proceed; where the applicant actively sought an order that the Tribunal not accept the review application; where the applicant has not been heard on the review application; and notwithstanding that the review application proceeded in the absence of the applicant, the appropriate course is to allow the applicant to indicate whether she wishes to pursue the review application.
3. The applicant advised the Tribunal on 1 December 2021 that she wished to pursue her application for review and asked that the matter be listed for directions. In the intervening period Senior Member Goodman became unavailable to continue with the matter. The matter came before the Tribunal for directions on 14 December 2024. In reasons for decision related to order made at that directions hearing the Tribunal stated at [5]: 5. Ms Wojciechowska had declined to participate in the 7 April 2021 hearing but had filed an affidavit and written submissions. In those circumstances, Senior Member Goodman gave Ms Wojciechowska an opportunity following his dismissal of her miscellaneous matters application to indicate whether she wished to proceed with the substantive review application. During the directions hearing it became apparent that at the hearing on 7 April 2021, in addition to dealing with the application for miscellaneous matters filed by Ms Wojciechowska, Senior Member Goodman had taken evidence in relation to the substantive application and was therefore part heard in the matter. Prior to the directions hearing before me Senior Member Goodman was appointed as a Judge of the Federal Court of Australia and became unavailable to sit on the Tribunal.
4. The Tribunal subsequently formed the view that the Senior Member Goodman was part heard in the substantive application and had become unavailable. The Tribunal formed the view that reconstitution of the Tribunal was required pursuant to s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
5. On 20 December 2021 the Registry wrote to the parties seeking their views in relation to the reconstitution and on 18 January 2022 the then acting President of the Tribunal reconstituted the Tribunal so that I would hear the matter.
6. On 22 February 2022, the matter came before me for directions and directions were made giving the parties further opportunity to provide documents and directing the parties to advise each other and the Tribunal of any witnesses they required for cross examination. The proceedings were also listed for final hearing. The Tribunal also had available to it a transcript of the proceedings before Senior Member Goodman. Neither party nor the Information Commissioner provided anything further in accordance with those directions, nor did anyone require any witness for cross examination.
7. The proceedings were heard by the Tribunal on 24 May 2022. The applicant informed the Tribunal that she was filing a summons in the Supreme Court seeking a declaration by the Supreme Court in relation to whether the Tribunal had jurisdiction to decide the matter. The summons had not yet been filed and I refused to adjourn or stay the proceedings on that basis.
8. In the intervening period the applicant did commence proceedings in the Supreme Court and subsequently in the NSW Court of Appeal in relation to the issue of jurisdiction. I awaited determination of those appeals before proceeding with this determination as they were relevant to the issue of jurisdiction.
9. On 17 August 2023, the NSW Court of Appeal held that there was no restriction to non-judicial power regarding the GIPA Act and dismissed that challenge. (Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191).
10. On 18 August 2023, the Tribunal ordered the parties to provide any further submissions they intended to rely on in relation to the decision of the Court of Appeal.
11. The parties did not file any submissions. It has come to the Tribunal's attention that a grant of special leave to the High Court has been granted to the respondent. However, neither party has sought a stay of these proceedings and I have determined to proceed to determine the proceedings based on the submissions and evidence before me.

Jurisdiction

1. I am satisfied that the respondent's decision to refuse access to information in response to the applicant's access application is a decision which is reviewable by the Tribunal pursuant to s80(d) of the GIPA Act. Further, I am satisfied that the Tribunal has jurisdiction to conduct this review pursuant to s 100 of the GIPA Act, read with ss 28 and 30 of the NCAT Act and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

Application to disqualify

1. At the hearing the applicant sought that I disqualify myself from hearing the matter because of the way I had dealt with other matters in which she was a party previously. She referred to a hearing in December 2021 in which I allowed leave for a document to be considered without seeking her views. She provided little further detail in that regard.
2. Having considered the request to recuse myself, I was not of the view that there is actual or apprehended bias which would disqualify me from hearing the appeal.
3. The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is objective: 'whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide': Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
4. The basis for the applicant's assertions in relation procedural matters and dealings with how the matter should proceed and what can be considered is not supported. Nothing in that decision has any logical connection with the issues required to be determined in this application. On that basis the request to disqualify myself from hearing the application was refused

Consideration

1. Section 5 of the GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
2. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).
3. Section 14(1) of the GIPA Act requires that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Sch 1 to the GIPA Act. Relevantly, Clause 5(1) of Sch 1 provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege.
4. The Tribunal's function on review under s 63 of the ADR Act is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable written or unwritten law.
5. In considering the evidence, I have considered the evidence that was tendered in the hearing before Senior Member Goodman and the transcript of the hearing before Senior Member Goodman. I have considered the parties written and oral submissions, including those of the Information Commissioner. Further I have considered the bundle of documents comprising of submissions and documents from the applicant provided to the Tribunal on 2 March 2020 and 18 February 2021.
6. I note that during the hearing before me, the applicant objected to some of the evidence of the respondent's witnesses, including the evidence of affidavit of Chief Inspector McCarthy. The applicant submits that the evidence is misleading and unsworn. However, that evidence had already been allowed into the evidence in the hearing before Senior Member Goodman. When I refused those objections, the applicant terminated the call and refused to participate any further in the proceedings.
7. The respondent bears the burden of establishing that its decision to refuse access is justified: s 105(1) of the GIPA Act and so I have proceeded to consider the application based on the material before me and the submissions the applicant had already made in writing and oral submissions at hearing. I have also considered the submissions of the Information Commissioner.

Body Worn Video Access Information

1. The respondent has subsequently determined to provide the applicant with the information within the scope of the body worn video access information request.
2. That information was provided by letter from the Crown Solicitor's Office to the applicant dated 31 January 2020, which included a table describing the names, dates and times of each instance of access to the footage and, where available, the reasons for access.
3. The BWV access information was released to the applicant in the form of a letter from the Crown Solicitor's Office dated 31 January 2020.
4. The applicant made submissions that she should be provided with the original access data, not the letter from the Crown Solicitor's Office and that the letter does not confirm whether the access information relates to "all versions" of the video.
5. In relation to the form of access, s 72 of the GIPA Act provides: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways - (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless - (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant."
6. Subsection 75(1) of the GIPA Act provides: 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information."
7. The applicant requested a "history of access" which does not specify the form in which the "history" of access will be. The respondent has determined to provide access to the information requested by creating a new record. Section 75(1) of the GIPA Act allows the respondent to do so. Access in that form has been provided, as she received a copy of the document which was created to answer the applicant's application. On that basis I am satisfied that the applicant has complied with s 72 of the GIPA Act.
8. The applicant also alleges that there may be further copies of the body-worn footage and accordingly further access histories should be provided to her. In a supplementary affidavit provided by Chief Inspector McCarthy, dated 31 March 2020 (exhibit R5) he confirms that body worn footage is not stored on any other information systems other than those described in his affidavit (at [17]).
9. The applicant submits that there may be a copy of the body-worn footage which is on the COPS database. In the supplementary affidavit of Chief Inspector McCarthy, he states that body-worn footage is not uploaded to the COPS system. On that basis, I reject the applicants submission that the evidence infers that there may be other versions of body worn footage.
10. The applicant submits that that the body-worn access history provided to her is sourced from the NSW Police Intranet. The supplementary affidavit of Chief Inspector McCarthy also confirms that body-worn footage is not uploaded to the Intranet. Chief Inspector McCarthy confirms that the information provided to the applicant is an access history of information stored on the View IMS.
11. The applicant also submits that further copies may have been made and stored on a "P Drive". The supplementary affidavit of Chief Inspector McCarthy confirms that there is no audit capability of that file system.
12. I find no basis to find that there could be further information held which is responsive to the applicant's request.
13. I also find that the information was provided by the letter to the Crown Solicitors and have varied the decision to reflect that.

Community Access Portal

1. In her initial submissions the applicant appeared not to be pressing access to this information. The respondent's initial decision in relation to the Community Portal access information was prepared on the basis that the information was available.
2. Chief Inspector McCarthy has provided an affidavit dated 31 January 2020 (exhibit (R2)). He is a chief inspector of Police employed by the NSW Police Force and Manager of the Spatial and Analytical Capability Unit of the State Intelligence Command. He states at [23] - [28] that the complaint through the Community Portal does not automatically create a COPS event. Upon viewing the portal report, member of the NSW Police Force may create a COPS event and that event can be the subject of a "reverse audit", by which a report is generated which indicates the identities of officers who have accessed the report. Chief Inspector McCarthy states there is a program fastpath called "PORTENQ" within the COPS System, which can be used to view Community Portal complaints. However, there is no auditing function of that access. There are no other access functions which are auditable for actions in the Community Portal. He states that after undertaking detailed enquiries in relation to this program, he believes that the information sought is not held by NSW Police.
3. Accordingly, I find that the correct and preferable decision is that the respondent does not hold the Community Portal access information.

Law Enforcement Conduct Commission referral Access Information

1. The applicant seeks access to the applicant's complaint provided to the NSW Police in January 2019 by the Law Enforcement Conduct Commission.
2. The applicant submits that she should have access to the Law Enforcement Conduct Commission information in the proceedings because the Tribunal has not yet determined that there is an overriding public interest against disclosure in relation to the information.
3. Section 107 of the GIPA Act relevantly provides: 107 Procedure for dealing with public interest considerations … (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
4. The information responsive to the Law Enforcement Conduct Commission access request is claimed to be subject to an overriding public interest against disclosure. The information, being the very information that is in issue in these proceedings, falls within the scope of s 107(2) and (3) of the GIPA Act, and must be treated confidentially. In that regard the Tribunal made the following non-publication order on 7 April 2021: 1. Pursuant to s.107(3) of the Government Information (Public Access) Act 2009 the Tribunal receives the document lodged with the Tribunal and marked 'Exhibit R6' in the absence of the public and the applicant. 2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), until further order, the publication of the matters contained in the document marked 'Exhibit R6' is prohibited. 3. Pursuant to s 64(1)(d) of the NCAT Act, until further order, the disclosure to the applicant of the contents of the document marked 'Exhibit R6' is prohibited
5. The applicant objected to the orders at the hearing before me on the basis that they were too wide and made without power. I find no basis for the submissions that the Tribunal did not or does not have the power to make non-publication orders. Given my findings in these proceedings regarding disclosure of the documents, I have determined that the non-publication orders should remain in place.
6. The respondent did not make any closed submissions at the hearing. The hearing proceeded by reference to the open documents.
7. Section 44 of The Law Enforcement Conduct Commission Act 2016 (NSW) relevantly provides that: (1) As soon as practicable after the Commission receives (or becomes aware of) a misconduct matter, and at any time during the course of the investigation or oversight by the Commission of a misconduct matter, the Commission may decide to do any one or more of the following - … (b) subject to section 45, to refer the misconduct matter for police investigation or other action or Crime Commission investigation or other action,
8. Section 45 of the act provides the factors to be considered when deciding to investigate or refer the investigation for misconduct.
9. Part 8A of the Police Act 1990 (NSW) deals with the investigation of a misconduct matter and complaints about conduct of police officers, administrative employees and the NSW Police Force.
10. Section 13 of the GIPA Act provides: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
11. In relation to public interest considerations against disclosure, the Table to s 14 of the GIPA Act sets out the only considerations that may be taken into account when applying the s 13 public interest test: GIPA Act, s 14(2).
12. The respondent relies on clause b of the table 2 referred to in s 14(2). That consideration against disclosure relevantly provides: 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 (whether in a particular case or generally) - … (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,
13. In an affidavit sworn by Chief Inspector Holgate on 31 January 2020 (exhibit R3) he describes the prejudice to police functions which the disclosure would create. Chief Inspector Holgate has been a Professional Standards Manager of the Professional Standards Command since 2019.
14. Chief Inspector Holgate states the disclosure of information identifying officers who access files relating to misconduct matters reveal the identities of covert officers attached to Professional Standards Command and who investigate and consider misconduct matters. It would also expose those investigating misconduct matters to be exposed and disrupt the ability of those investigating misconduct to do so.
15. Chief Inspector Holgate also states: 1. The identities of covert officers attached to Professional Standards Command who investigate misconduct matters is strictly confidential and highly sensitive because the covert investigation of potential police corruption or misconduct is often necessary to detect or prevent certain misconduct. Further, the secrecy of the officers identity provides them with a greater ability to uncover police misconduct and the disclosure of the covert officers' identities could expose them to being targeted, either for the purposes of making threats or intimidation, or otherwise seeking to corrupt an investigative process. 2. The disclosure of an access log which includes the names of officers who are not publicly known to be attached to the Professional Standards Command will likely reveal that those officers are covert officers. 3. Disclosure of the log will enable an inference to be drawn in other cases in which access is refused that covert officers are operating. That information could reveal the identities of those officers. 4. The disclosure of the identities of those considering or investigating instances of misconduct can expose those officers to potential targeted threats or intimidation or other attempts to corrupt investigative processes. 5. The access logs will also identify non-sworn members of the NSW Police Force who will not have the situational and tactical knowledge and awareness as to the proactive steps needed to avoid hostile surveillance or retribution. 6. The disclosure of a report can indicate that specific conduct has come to the attention of the NSW Police Force or Professional Standards Command and that informants have spoken to Professional Standards Command. 7. The disclosure of the dates and times of access will also reveal the scope and length of an investigation or deliberative processes relating to those complaints. Repeated access requests in relation to the same or similar complaint will enable persons to identify whether and when an investigation has been concluded or re-commenced.
16. There is a public interest in favour of the disclosure of government information: s 12(1) of the GIPA Act. The applicant has a general interest in information which she considers relevant to her complaint regarding police conduct.
17. I accept that the respondent's investigations into the complaint are finalised and that there is also a general public interest in the disclosure of information which promotes the accountability of the NSW Police Force. However, the public interest considerations against disclosure of the material in these proceedings, relevant to 2(b) of the table to s14 of the GIPA Act are strong. The reporting of potential misconduct is critical to the flow of information which underpins the processes under Part 8A of the Police Act. I have considered the log and find, based on the evidence of Chief Inspector Holgate that disclosure of the log would cause prejudice to the statutory function of the NSW Police Force to regulate potential corruption and misconduct in complaints which have been referred by the Law Enforcement Conduct Commission. Accordingly, there is an overriding public interest against disclosure supporting a decision under s 58(1)(d) to refuse access to the information.
18. The public interest favouring disclosure in this case is outweighed by the public interest against disclosure of the access log of the complaint referred to the NSW Police Force and by the Law Enforcement Conduct Commission.

Documents relating to consultation of separate GIPA decision.

1. The final aspect of the applicant's access application is for: History of any formal or informal consultations [regardless of whether or not they were required under the Government Information (Public Access) Act 2009 (NSW)] conducted in relation to my access application IAS2019-360 (submitted to the NSW Police via email, confirmed by the NSW Police as received on 01 February 2019) with Wayne Campbell, Tara Campbell or John Bromhead, including the dates each consultation initiated and dates each response received
2. The GIPA application was referred to was made by Raj Kadian, a review officer at InfoLink. The decision was to partially release COPS event reports relating to the attendance of police on 25 September 2018.
3. Raj Kadian also made the GIPA Act decision currently under review in these proceeding and stated that: Searches were conducted on TRIM Records Management and GIPA case management system called AAMS to search for any consultation with third parties, including Wayne Campbell, Tara Campbell or John Bromhead in relation to your GIPA application IASU2019-360. As per the results no documents are held by NSW Police Force related to consultation. I made the decision on GIPA request IASU2019-360 and can confirm that I did not undertake any consultation with third parties. Since the information sought is not held by this agency, you are so advised in accordance with section 58(1)(b) of the Act."
4. The question for the Tribunal is whether NSW Police undertook sufficient searches to conclude that the documents did not exist. There is no evidence to suggest that consultations were undertaken and accordingly no reasonable grounds to believe that the requested consultation documents exist. The officer who reviewed the matter would have had knowledge of whether consultations were undertaken. This aspect of the decision is affirmed on the basis that the information is not held.

ORDERS

1. Consistent with the findings of the Tribunal, the following orders are made: 1. The decision of 17 June 2019 is varied by: 1. The provision of information to the applicant by the letter of the Crown Solicitor's Office to the applicant, dated 31 January 2020. 2. Finding that there is no Community Portal access information held by the respondent. 1. Otherwise, the decision of 17 June 2019 is affirmed as the correct and preferable decision.

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: 01 October 2024