Wojciechowska v Commissioner of Police, NSW Police Force

Relevant legislation

1. Section 3 of the GIPA Act states that the object of the Act is to open government information to the public and: (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
2. Section 5 of the GIPA Act provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
3. Section 53 provides: 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.
4. Section 80 of the GIPA Act provides: 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, …
5. Section 105 provides: 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. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. (4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review.
6. Section 63 of the Administrative Decisions Review Act 1997 provides 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Respondent's evidence and submissions

1. Mr Matthew Smith gave evidence. Mr Smith is the Senior Advisory Officer at Infolink, a Command within the NSW Police Force which is responsible for administering the respondent's obligations under the GIPA Act.
2. Mr Smith made the supplementary decision on behalf of the respondent. He said the version of the COPS User Guide which was released to the applicant was marked "Version 2.1 Issue date September 2010." Mr Smith said there have been no further updates to the User Guide since the publication of Version 2.1 and it was current between August and October 2018.
3. Mr Smith said that he also conducted searches in relation to points 1 to 4 of the application. The only document that he found which fell within those requests was the User Guide. He searched on the respondent's intranet Operational Policies and Procedures sections where he said all policies related to the investigative functions of the respondent are located. He examined the titles of the policies to identify whether they might contain information within the scope of the application. He also conducted a key word search within the Policies and Procedures section, the COPS system and the Records Management System with no result. The keywords used were "COPS definitions; COPS terminology; COPS User Guide; definition COPS"; and "rules COPS".
4. He searched the same locations (with the exception of the COPS system) by searching titles and for terms used in point 5 such as "investigation vegetation", "environmental investigation" and the term "investigation" with the legislative provisions, without any result. He did not search the COPS system as internal policies and directives are not held in COPS. He also asked an officer where she would search for policy information about investigating damage to vegetation and was advised that she would search the areas he had already searched.
5. Under cross examination he agreed he did not search for the term "person of interest". He agreed that training materials for police which covered some or all of the subject matter may exist but his searches had not uncovered any. He was asked if there would be a Standard Operating Procedure covering COPS, and said that he did not know but assumed that if there was, the User Guide would refer to it. He said also that Standard Operating Procedures were available on the Policies and Procedures section of the intranet, which he searched, and usually have the words relating to their subject matter in the title.
6. He was not sure how the User Guide revisions were numbered but stated that serving officers were using the version which had been issued to the applicant.

Applicant's evidence and submissions

1. The applicant tendered the NSW Police Force Handbook which is dated 2017 as evidence that there were topics relevant to police which were not in the COPS User Guide, such as "mentally ill people" and "person of interest" and that Mr Smith's searches had not located this handbook. She also tendered some COPS entries to show that the User Guide did not refer to all the terms and acronyms used in the entries. For example the acronym "CAS" followed by numbers appears at the top of the pages.
2. She also tendered the opening pages of the User Guide which states on the front page that it is "Version 2.1 / Issue Date September 2010/ © NSW Police Force 2003". The "Document Control" section on page ii states: "This document is based on the original COPS User Guide (versions 1.1, 1.2, and 1.3 1994) released with the implementation of the COPS system. The aim of creating this document is to make a soft copy of the document available online to all COPS users. As such, this release is a revision increase (ie. Going from version 1.3 to 1.4) not a version increase. Plans are currently underway to conduct a complete and thorough review of the content of this document."
3. Under "Revision History" on page iii it states that the first version was released in 1994. It states that the September 2010 version is Version 2.1 and the Description for this version is: "Update Security Classification of IR Reports to current practice."

Searches conducted

1. Where the Tribunal is reviewing a decision that an agency does not hold information, it should consider: 1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so, 2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of the case. (Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5; McClymont v Department of Family and Community Services [2017] NSWCATAD 202.)
2. The applicant bears the onus of satisfying the Tribunal that there are reasonable grounds for believing that further information falling within the scope of the application exists which has not been supplied. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186 at [33]-[34]). However this does not reverse the onus on the respondent under s 105(1) (Amos v Central Coast Council [2018] NSWCATAD 101 at [39]). The fact that there may be weaknesses in the searches conducted or failures in record keeping does not necessarily lead to a conclusion that searches have not been reasonable or adequate (Camilleri).
3. The applicant has pointed to the following as factors tending to show that other information exists: 1. the absence of certain information in the Guide for example a definition of "person of interest"; 2. the fact that the Handbook was not produced under the search and that it contained some information relevant to her request; 3. the fact that the Guide produced was nine years old; 4. With respect to point 5 of her request, the respondent did not use key word searches.
4. She also sought to cast doubt on Mr Smith's evidence and said that the officer who made the first decision would have been a more relevant witness. I am not satisfied that this is the case. I accept that Mr Smith conducted searches over all the areas of the request. It was Mr Smith who determined that the User Guide should be released.
5. The respondent submits that the terms of the applicant's request were narrow and refers to rules, manuals, definitions and use of terms. Mr Smith's searches reflected that.
6. The applicant submitted that her request was a request for the most comprehensive information available. She submitted that the respondent did not conduct all reasonable searches and did not provide a list of documents falling within the scope of her request.
7. Points 1 to 4 of the request sought definitions and rules applying to COPS. The fact that another document such as the Handbook contains a reference to a term in the request does not necessarily establish that the Handbook reference is relevant to how the term is used in COPS. While Mr Smith did not search for "person of interest" the request was not for all information on that term. It was for definitions, terminology and abbreviations used in COPS such as "person of interest" and others.
8. I accept Mr Smith's evidence that he did use keyword searches in all parts of his search and those terms were adequate in the circumstances of the particular request. The fact that the searches did not discover training materials is not conclusive in my view. I am not satisfied that the applicant has established that there are reasonable grounds to believe that the requested information exists and is held by the agency.

Whether there is a more current version of the guide

1. The respondent submits that the evidence of Mr Smith clearly establishes that the applicant was provided with the current version of the Guide.
2. The applicant submits that it is unlikely that no version has been issued since 2010 and it has not been updated since 2003.
3. The 2010 COPS User Guide is unlikely to be comprehensive as the document itself stated that it required a "complete and thorough review" of the content. There was no evidence as to the procedure for updating of the document but I accept Mr Smith's evidence that this is the version currently in use. There was no evidence to suggest that how entries are made or how the terms are defined has changed over time. Therefore the fact that the term "CAS", for example, is not defined in the Guide does not establish that it must be documented in a later version of the Guide.

Whether a refund is due to the applicant

1. The applicant submitted that she had not received the refund of her processing fee of $30 which was due to her because her application was not processed by the due date. I note that the letter to her dated 17 June 2019 states that a refund will be made.
2. I have no jurisdiction to order a refund as it is not a decision which can be reviewed, however I note the applicant's complaint in the expectation that the respondent will inquire into the matter.

Conclusion

1. There are no grounds on which to find that the supplementary decision of 22 August 2019 should be set aside or varied.

Orders 1. The supplementary decision of the respondent dated 22 August 2019 is affirmed.

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: 08 January 2020