These proceedings concern a request (the GIPA request) that Errol Wong (the applicant) made to the Commissioner of Police, NSW Police Force (the respondent) for the release of information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) on 29 February 2024. The GIPA request was in the following terms:
In relation to Event E324257998
Photographs
Video statement of (person named)
Transcript of statement for (person named)
Who were the NSW Crime Scene Officers/Detectives who attended the scene
Copy of forensic report conducted to determine suicide
Transcript and recording of triple zero call.
On 20 March 2024, the Respondent issued a Notice of Decision, which determined that:
In relation to your request for "who were the NSW Crime Scene Officers/Detectives who attended the scene", I have not addressed this part of your application, pursuant to section 75, as your request is for answers to a question.
The searches conducted by the Ryde PAC for the forensic report conducted to determine suicide, did not indicate ant records matching these descriptions. The searches conducted by PoliceLink Command for a recording/transcription of the triple zero call, did not locate any triple zero calls made to NSWPF. I have therefore decided, under Section 58(1)(b) of the GIPA Act, that the information is not held by this agency.
With regards to your request for photographs, video statement of (person named), transcript of statement of (person named), and information obtained from (person named) mobile phone, I have decided that the information you requested is excluded information pursuant to Schedule 2 of the GIPA Act.
The respondent relied upon cl 1 of Sch 2 of the GIPA Act, which provides that the information applied for relates to the judicial functions of the Coroner's Court, because the matter referred to in the GIPA request was referred to the coroner. In accordance with Sch 2 cl 1, the respondent consulted the Coroner's Court as to whether it consented to the disclosure of the information, and the Coroner's Court replied:
…an application for excluded information can only be made directly to the Court at (address provided). Applications to the Coroner's Court are considered by the Coroner under section 65 of the Coroners Act 2009.
The applicant requested an internal review of that decision and the respondent made an Internal Review decision dated 8 April 2024. The respondent decided that: (1) it does not hold a forensic report or transcript and recording of a triple zero call: s 58(1(b)); (2) it refused to provide access to the information within scope of the GIPA request that was located because it was subject to an overriding public interest against its disclosure: s 58(1)(d).
The respondent relied upon Sch 2 cl 1 of the GIPA Act and decided that the disputed information was subject to a conclusive presumption that there is an overriding public interest against disclosure, because it relates to judicial functions of the Coroner's Court. Clause 1 of Sch 4 defines "judicial functions" in relation to a Coroner as follows:
Judicial functions, in relation to a court, means such of the functions of the court as relate to the hearing or determination of proceedings before it, and includes:
…(b) In relation to a coroner - such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009.
The respondent stated that the disputed information was contained in a brief of evidence provided by police to the NSW Coroner to assist in the exercise of judicial functions under the Coroners Act 2009.
The respondent also noted that in the request for internal review, the applicant stated that he sought a copy of the recording that the Ambulance made to the police to get them to the scene.
On 31 May 2024, the applicant filed the current application for administrative review, in which he sought a review of the decision dated 8 April 2024 on the following grounds:
I have made numerous requests for the police and coroners court to give me more information surrounding the suspicious death of my brother and feel this information has been unfairly withheld.
Annexed to the application was an application for access to coronial documents completed by the applicant on 1 July 2022.
The applicant also filed a reply from the Registrar of the Coroners Court dated 8 February 2023, which indicated that based on advice received from police officers and medical practitioners, and other appropriate persons, the Coroner was satisfied that the date, place, manner and cause if the death of the applicant's brother have been sufficiently disclosed. Therefore, under s 25 of the Coroners Act 2009, the Coroner dispensed with the holding of an inquest. It also indicated the cause of death (which I have not set out in this decision).
[2]
Procedural matters
On 22 July 2024, Senior member Ziegler conducted a case conference at which the applicant appeared in person and Mr A Kiefer, Crown Solicitor's Office, appeared for the respondent. The Senior Member made the following orders:
1. By 19 August 2024, the respondent is to file and serve all evidence, including statements, documents and submissions, as well as:
1. An Agency response form;
2. All applications and decisions made under the GIPA Act with respect to the matter, including those relating to any internal review; and
3. A schedule of documents, identifying in tabular form each document in dispute by number and giving details of its date, nature, and author, and the basis on which access was refused:
1. The applicant is to file and serve evidence, including statements, documents and submissions, by 19 September 2024;
2. The respondent is to file and serve all evidence in reply, documents and a summary of legal arguments by 30 September; and
3. The respondent is to file with the following information with the Tribunal on a confidential basis:
1. Documents considered to be subject to a conclusive overriding public interest against disclosure; and
2. Documents considered to be subject to a non-conclusive overriding public interest against disclosure.
The Senior Member listed the matter for hearing on 2 October 2024.
[3]
The hearing
The matter came before me for hearing on 2 October 2024. The applicant appeared in person and Mr Kiefer appeared for the respondent.
[4]
Respondent's case
Mr Kiefer stated that the respondent relied upon the following evidence:
1. Affidavit of Erin Drummond affirmed 20 August 2024. This was admitted into evidence and marked as Exhibit A;
2. Affidavit of Cameron Black affirmed 19 August 2024. This was admitted into evidence and marked as Ex B; and
3. A document headed "Consultation with the Coroner" filed on 19 August 2024. This was admitted into evidence and marked Ex C.
Mr Kieffer referred the Tribunal to paras 7 to 15 (inclusive) of the respondent's written submissions filed on 21 August 2024. He noted that in 2023, the Coroner decided to dispense with an Inquest in relation to the death of the applicant's brother and that was the background to the applicant's current GIPA request.
The respondent decided that the GIPA request can be taken to request access to the following categories of information:
1. The photographs referred to as Exhibited on page 5 of the statement of the Officer In Charge (OIC);
2. The transcript and video statement referred as exhibited on page 5 of the OIC statement;
3. The information of the deceased's phone, referred to as exhibited on page 5 of the OIC statement;
4. The names of the NSW Crime Scene Officers/Detectives who attended the scene;
5. A copy of the forensic report conducted on the deceased's body to determine if the cause of death was suicide; and
6. A copy of the transcript and recording of the triple 0 call made at the time of the deceased's death.
On 17 July 2024, the applicant wrote to the Tribunal, providing further details as to his application and at the case conference, he stated that he challenged the decision to refuse access to information and the decision that certain information was not held. The respondent understood that the applicant presses for access to all of the above categories of information and that he also sought access to information outside the scope of the GIPA request.
Mr Kiefer stated that categories (1) to (3) above are excluded information of the Coroner's Court. As a result of s 14(1) and Sch 1 cl 6 of the GIPA Act, there is a conclusive presumption that there is an overriding public interest against disclosure of that information unless the Coroner has consented it its disclosure.
Ms Drummond deposes (at para 24 of Ex A) that the evidence contained in these categories was included in the Brief of Evidence to the Coroner and she cross-referenced the categories against the information provided to the Coroner. He also attached photographs and other documents, which means that these documents are already within his possession.
However, the relevant question to ask in these proceedings is whether the disputed information was included in the respondent's brief to the Coroner and the answer to that question is 'yes'. Ms Drummond provided an index to the Brief to the Coroner, which bears the same case number as that in the letter from the Registrar of the Coroner's Court stating that the Coroner had decided to dispense with an inquest. That letter was issued following the Coroner's consideration of advice from police officers and medical practitioners.
In Ex C, at page 8, there is an email from Mahrukh Sarwat (respondent) to Stephanie Mitrovska (Department of Communities and Justice) dated 29 July 2024. Ms Mitrovska was the solicitor for the Department of Communities and Justice who acted as a liaison between the respondent and the Coroner and she attached a letter to the Coroner under s 58(1)(d) of the GIPA Act. The letter drew the Coroner's attention to the requested information and also attached a copy of the internal review decision. A copy of the Coroner's response dated 9 August 2024 is annexed and found at page 7 of Ex C, namely that the Coroner does not consent to disclosure of the disputed information.
Mr Kiefer referred the Tribunal to the decision in Betzis v Commissioner of Police [2020] NSWCATAD 71 (Betzis). He stated that in Betzis, the information sought under the GIPA request was also partly information in a Coronial Brief of evidence. The deceased's death had initially been regarded as suspicious and was the subject of a police investigation. A brief of evidence was prepared and provided to the NSW Coroners Court at the conclusion of the investigation and the Coroner then dispensed with an inquest. The applicant (the deceased's daughter) disputed that the information contained in the Coronial brief of evidence related to the judicial functions of the Coroner. She argued, relevantly:
1. That at all material times the information maintained its character as evidence obtained through the investigation conducted by the NSW Police Force into the death of her father and was information that was also separately and independently held by the NSW Police Force; and
2. That only information in documents related to the deliberations or reasons of the Coroner to dispense with an inquest that have not already been made public through publication of reasons would relate to the additional functions of the coroner and thereby be characterised as excluded information.
The Tribunal found that information in the Coronial brief of evidence was excluded information and it observed that the expression "relate to" has been held to be one of broad import and that this Tribunal has generally held that the phrase "relating to" and similar expressions is a broad one to be construed with the widest import. Further, the tribunal held that Part 3.2 of the Coroners Act was the source of the Coroner's jurisdiction to hold an inquest concerning the death of a person. He noted that the Tribunal then noted that the Coroner's decision to not conduct an inquest can be characterised as judicial and therefore relates to the judicial functions of the Coroner.
In Betzis, the Tribunal was also satisfied that the Coronial Brief was integral to the Coroner's decision-making process and is therefore information that relates to the judicial functions of the Coroner. This indicates the strength of the connection between the brief of evidence and the judicial functions of the Coroner.
Mr Kiefer stated that the information sought in categories (5) and (6) of the GIPA request are not held by the respondent. The relevant principles for considering whether information is held by an agency were summarised by the Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (at [44]), as follows:
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 sole issue in dispute regarding categories (4) and (5) is whether the respondent undertook reasonable searches.
In Walker v Roads and Maritime Services [2019] NSWCATAD 177, the Tribunal summarised the principles applied by it in considering the reasonableness of the searches undertaken by an agency as follows:
87. The Tribunal has applied the following principles in considering the reasonable of searches undertaken by an agency:
(a) what constitutes a sufficient search will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant: Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 at [30];
(b) that there may be weaknesses in an agency's searches or that there are failures in its recordkeeping processes do not necessarily lead to the conclusion that the search has not been reasonable, or sufficient, or adequate: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 at [15];
(c) the fact that extra documents were located subsequently does not mean that reasonable searches were not made initially: MJ v Department of Education and Communities [2014] NSWCATAD 12 at [28].
In Robinson v Commissioner of Police [2014] NSWCATAP 73, the Appeal Panel identified that the focus of the s 53(2) inquiry is "the administrative steps taken by the agency's search officers".
In Alam v Insurance and Care NSW [2020] NSWCATAD 148, which was affirmed by the Appeal Panel, the Tribunal observed that where data is stored electronically, "s 53 does not require the agency to provide specific details of search engines or algorithms of its electronic data systems". The agency will discharge its onus that its searches were reasonable by: (a) identifying the electronic systems and platforms on which it retains information of the kind sought by the access applicant; and (b) identifying what searches were conducted on those systems and platforms for the information sought.
The searches undertaken by the respondent in response to the request for a triple zero recording and transcript are set out in the Affidavit of Andrew Black (Ex B). He is a Senior Intelligence Analyst at PoliceLink Command. His evidence is that:
1. The emergency service that a caller is initially connected to by the Emergency Answer Point (a department of Telstra) is not necessarily the service that is eventually dispatched to respond to the emergency;
2. ICEMS allows the respondent to identify the source of emergency calls where callers were transferred to a difference emergency service, but where the call resulted in members of the NSWPF being dispatched to the emergency;
3. ICEMS does not allow NSWPF to access a transcript or recording of a call where he caller was transferred to a different emergency service;
4. This aspect of the GIPA request was directed to Policelink Command, in which Mr Black works. His team has a key responsibility of processing requests for call recordings under the GIPA Act, as they have access to the technology platforms that contain this data;
5. An Intelligence Analyst, Matthew Hosking, undertook initial searches which involved:
1. Reviewing the Event referred to in the access application, via the WebCops Database;
2. Identifying a single computer aided dispatch as attached to that event, via WebCops;
3. Accessing the Police CAD database, to identify that the source of the relevant contact was from the ICEMS via the NSW Ambulance Service; and
4. Further verifying that no additional calls were made that day concerning the same incident, by searching the same source contact mobile number for the event using PoliceCAD, as well as the NSWPF CLI Application (which showed no calls being made to the NSWPF).
1. Mr Black understands comments made by Mr Hosking on a Completed GIPA Instruction Sheet to mean that he reviewed the two primary data sources that relate to Triple Zero contacts to the NSWPF (WebCOPS and PoliceCAD) and determined that the respondent does not have any Triple Zero call recordings relating to that event;
2. Mr Black verified the work completed by Mr Hosking by conducting the same searches, utilising the same databases, and he confirmed that the Triple Zero call was made to NSW Ambulance, meaning that the respondent does not have a recording or transcript of that call. He also undertook searches of the source contact mobile number using PoliceCAD and the NSWPF CLI Application as a verification step, which showed no calls being made directly to NSWPF; and
3. Mr Black confirmed, by accessing the CAD Log via PoliceCAD, that two features of that Log indicate that the call was made to NSW Ambulance and he identified those features.
Based upon Mr Black's evidence, the Tribunal should be satisfied that the information sought in category (6) is not held by the respondent.
In relation to category (5) - Forensic report, Mr Kiefer noted that Ms Drummond gave evidence of the searches undertaken by the respondent to attempt to locate this information. She gave evidence about how searches were conducted and that she undertook additional searches in response to the Tribunal's orders dated 22 July 2024, and how she undertook those searches. She was unable to locate a copy of any forensic report. Further, she stated that she made enquiries of the OIC as to whether NSWPF was provided with any forensic reports to determine whether the death was a suicide. However, the OIC confirmed that he had not been provided with a copy of any forensic reports or a copy of the post-mortem report issued by the Coroner's report.
Mr Kiefer stated that based on Ms Drummond's evidence, the Tribunal should be satisfied that the respondent conducted reasonable searches and that this information is not held by the respondent.
Mr Kiefer concluded that the correct and preferable decision is to affirm the decision under review.
[5]
Applicant's case
The applicant relied upon an affidavit that he affirmed on 16 September 2024. This was admitted into evidence and marked Ex 1.
The applicant deposed that he represents his late brother's close surviving family members and that he has been recognised as the Senior Next of Kin by the Supreme Court of Australia. He stated that he previously requested copies of the disputed information from the State Coroners Office under s 65 of the Coroners Act 2009 and copies of the photographs were provided to a consulting forensic pathologist for an independent external review. However, the State Coroners Office advised him that he needed to obtain the disputed information from the respondent.
The applicant stated, relevantly:
9. We believe that there is not an overriding public interest against disclosure but an overriding public interest for this information to be released to the family for them to assist in finding new evidence that on the balance of probability, may have been missed. We believe both agencies have been too busy at the time to carry out their duties more diligently and properly investigate the circumstances surrounding our bother's death and feel information is being deprived from us, by these government agencies. As mentioned previously we have already requested information from the Coroner under section 65 of the Coroners Act 2009, and again most recently requested again on the 7th September 2024 but to date have failed to get a response. We find ourselves in a no-win situation.
The applicant disputed many aspects of the report from the OIC to the Coroner, including that: (a) it wrongly named his late brother; (b) it referred to another person as Senior Next of Kin; (c) it noted that this person was no longer performing CPR, while NSW Ambulance paramedics questioned whether CPR was even commenced; (d) it provides a description of the scene that conflicts with the statement provided by the other person; (e) states that the deceased's body had no suspicious external injuries other than ligature marks around his neck, while the Coroner's Report indicates that there were marks on his face and bruises and cuts on his body; and (f) it concludes with an opinion that on speaking to the Senior next of kin and other relatives, none harboured any great concerns that the deceased was in danger or imminent self-harm, but this appeared to show that the deceased actively concealed his deteriorating mental health from family members. There was no medical evidence to support that opinion. Finally, the OIC's opinion that this appeared to be a suicide was not based on medical evidence.
The Coroner relied on the OIC's report in deciding to dispense with an inquest. While the family dispute the OIC's opinion, they need to come up with new evidence, which they are trying to obtain by way of this GIPA request. He concluded:
18. We believe, although some items requested are not in the possession of the police now (namely items e and f of item 3 above) the NSW Police force should do a proper investigation to obtain this information and do a proper forensic report based on medical evidence.
19. We have attached the medical reports obtained by the consulting forensic pathologist independent external review which is inconclusive but does suggest it is up to the police to do such investigations (see attachment E).
20.The second report provided by the consulting forensic pathologist does however suggest the cord was pulled upwards and from the back, which would suggest on the balance of probability it would be impossible for someone to commit suicide in the manner described in the OIC report (see attachment F).
21. We believe on the balance of probability there is a motive for murder based on the behaviour that has been displayed post (the deceased's) death and considering the financial benefits that are at stake.
The Tribunal asked the applicant whether he concedes that the Police do not hold items e and f, as this is what he stated in paragraph 18 of his affidavit. He replied that he does dispute the decision that those documents are not held. The Tribunal then asked the applicant the basis on which he disputes that decision, however, the applicant did not respond other than saying that the Tribunal should determine this.
In relation to items a to c, the Tribunal noted that the applicant required Ms Drummond to attend for the purposes of cross-examination.
[6]
Oral evidence of Erin Drummond
Ms Drummond was called and took an affirmation and she stated that the contents of her affidavit are true and correct.
In cross-examination, the applicant referred Ms Drummond t paragraph 32 of Ex A and she stated that she conducted searches and reviewed a total of 26 files to see if they fell within the scope of the GIPA request.
The applicant referred Ms Drummond to para 32 of Ex A, in which she deposed:
On 25 July 2024, I emailed Constable Ogilvie to ask if NSWPF were provided with any forensic reports to determine suicide, and if so, to send me a copy. I noted that I could see the Notice of Particulars on a database called ViewIMS, however, I did not consider this to be a forensic report and assumed that the applicant might be referring to a post-mortem report. From my experience and from previously viewing post-mortem reports in unrelated maters, the post-mortem report details the examination of a deceased person by the Coroners Court and may make a determination on the cause of death.
The applicant asked Ms Drummond what she considered to be a forensic report. She replied that she considered a forensic report to be a post-mortem report of an assessment of an accident scene made by police.
The applicant asked Ms Drummond if the latter report determined the manner of death? However, the Tribunal disallowed that question on the basis that if there is a question concerning the manner of death the matter must be referred to the Coroner and this witness cannot answer that question.
The applicant then put to Ms Drummond that the OIC had no evidence on which to decide that the death was a suicide. However, the Tribunal disallowed that question on the basis that it is not reviewing the decision made by the OIC in relation to the accident scene. That is not a reviewable decision for the purposes of the GIPA Act.
The applicant then sought to question Ms Drummond about the investigation that was conducted by NSWPF. However, the Tribunal disallowed those questions on the basis that it was not reviewing the investigation conducted by the NSWPF.
The applicant then said that he had no further questions for Ms Drummond.
Mr Kiefer did not wish to re-examine Ms Drummond and the Tribunal excused her from further attendance.
[7]
Submissions
Mr Kiefer relied upon his written submissions and his submissions in reply. I have considered those submissions but I have not set them out in this decision.
The applicant referred to para 39 of the respondent's written submissions and he asserted that the decision in Betzis does not apply to this matter. However, he did not refer to any authorities that support his submission on this issue.
[8]
Need for a confidential hearing
The Tribunal stated that it was necessary for the Tribunal to examine the disputed documents in the applicant's absence in a confidential hearing under s 107 of the GIPA Act.
The Tribunal advised the parties that upon the completion of the confidential hearing, it would reserve its decision. The applicant was then excused from the proceedings and he left the hearing room.
[9]
The confidential hearing
The Tribunal then examined the disputed documents, which were lodged with it on a confidential basis, and heard confidential submissions from Mr Kiefer.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[10]
Decision reserved
Upon completion of the confidential hearing, the Tribunal reserved its decision.
Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) 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 that the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) the 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.
[12]
GIPA Act
Section 3 of the GIPA Act provides, relevantly:
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
…
(b) by giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
This object is amplified with a statutory command, contained in s 3(2), which provides:
(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 possible cost, access to government information
The object of the GIPA Act is operationalised by various 'machinery' provisions of that Act.
Part 2 of the GIPA Act contains general principles relating to open government information.
Division 1 of that Pt 2 of the GIPA Act concerns ways of accessing government information. This includes, in s 5, a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
It also confers, in s 9(1), a legally enforceable right on a person who makes an access application to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
Section 11 provides that the GIPA Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information other than a provision of a law listed in Schedule 1 as an overriding secrecy law.
Division 2 of Pt 2 of the GIPA Act concerns public interest considerations related to access to government information. This includes, in s 12(1), a prescription that there is a general public interest in favour of the disclosure of government information.
Section 13 contains a "public interest test" which is to be applied in determining whether access is to be provided to government information. It provides that there is an overriding public interest against disclosure of government information 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.
The public interest considerations against disclosure of government information are found in s 14 of the GIPA Act. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
Schedule 1 cl 6 provides:
Excluded information
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.
(2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.
(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.In this respect Sch 1 provides:
Part 4 of the GIPA Act deals with access applications. Division 1 of Pt 4 is concerned with making an access application. In this respect s 43 provides:
43 Access application cannot be made for excluded information
(1) An access application cannot be made to an agency for access to excluded information of the agency.
[Note: Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency].
(2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.
With respect to s 43, Sch 2 of the GIPA Act provides, relevantly:
Schedule 2 Excluded information of particular agencies
[Note: Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to the disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.]
Clause 1 of Sch 2 provides that judicial information relating to the judicial functions of a court is excluded information.
Schedule 4, cl 4(1)(f) expressly includes "a Coroner" in the definition of "court" and s 4(1)(f) of the GIPA Act provides that a court is also an agency for the purposes of the Act.
Schedule 4 cl 1 of the Act defines "judicial functions", in relation to a Court, as meaning such of the functions of the court as relate to the hearing or determination of proceedings before it, and includes:
(b) in relation to a coroner - such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009.The combined effect of those provisions …
Section 55 also requires the agency to take into consideration personal factors of the application as set out in that section.
Section 80 of the GIPA Act sets out what decisions are reviewable decisions for the purposes of that Act, which includes a decision that an application is not a valid access application (s 80(a)).
Section 100 of the GIPA Act provides that a person who is aggrieved by a decision that is a reviewable decision under the GIPA Act may apply to the Tribunal for an administrative review of that decision under s 55 of the ADR Act.
Section 107 of the GIPA Act provides:
Procedure for dealing with public interest considerations
(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(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.
[13]
Does the respondent hold further information?
Despite his apparent concession in para 18 of his affidavit, that the respondent does not hold the documents sought in items e and f of the GIPA request, at the hearing the applicant disputed that the respondent does not hold these documents.
The Tribunal asked the applicant the basis on which he asserts that the respondent hold that information, but his only response was that the Tribunal should determine this issue.
Under s 53 of the GIPA Act, 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.
The question of what constitutes an adequate search has been considered in many decisions under the GIPA Act and similar legislation. The Tribunal's jurisdiction in relation to whether adequate searches have been conducted has generally been considered to arise under s 58(1)(b), which provides that an agency may decide an access application by deciding that the information is not held by the agency, and s 80(e) which states that this is a reviewable decision.
The cases have applied the approach of the Queensland Information Commissioner in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464. In that decision the Commissioner outlined a two-stage approach to the question of what constitutes an adequate search. The first is to consider whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency. If that question is answered in the affirmative, then to consider whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances.
Under this approach, in the context of the GIPA Act, the Tribunal must form a view as to whether there may be some further information that falls within the scope of the access application and, if so, whether the efforts that the agency concerned made to find the information were sufficient.
In a decision of this Tribunal, Senior Member Lucy took a different approach. She held that, while the Tribunal has jurisdiction to review a decision that an agency does not hold information, it does not have jurisdiction to review an alleged failure by the agency to comply with the obligation under s 53(2) of the GIPA Act to conduct reasonable searches (McClymont v Department of Family and Community Services [2017] NSWCATAD 202). In this case, the respondent decided that the information was not held and this is not a matter where an implied decision arises.
In Amos v Central Coast Council [2018] NSWCATAD 101, Senior Member Lucy canvassed that question and examined the relevant case law and the history of recent legislative changes. She referred to the decision of the Appeal Panel in Robinson v Commissioner of Police [2014] NSWCATAP 73 where the Appeal Panel stated at [8] that a decision that government information is not held by an agency "may be said to be an implied decision in any decision responding to an access application". Implicit in the Appeal Panel's findings in Robinson is that such an implied decision is reviewable under the GIPA Act. I have therefore proceeded on the basis that it is and have approached the issue in line with the findings in Robinson and Amos.
Ms Drummond's affidavit clearly outlines the searches that the respondent undertook in response to the GIPA request and addressed the specific matters contained in the request. Her evidence indicates that the respondent spent considerable time and effort into responding to the GIPA request.
Based on the evidence before me, I am not satisfied that there are reasonable grounds to believe that items e and f of the GIPA request are held by the respondent.
[14]
Excluded information
A number of documents relevant to both access applications were not released, either in whole or in part, to the applicant on the basis they were "excluded information".
Under s 14(1) of the GIPA Act 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.
I am satisfied that s 14(1) applies to this matter and that by operation of cl 6 of Sch 1 of the GIPA Act, there is a conclusive presumption that there is an overriding public interest against disclosure of information that is excluded information of the Coroner's Court, unless that agency has consented to the disclosure of that information.
"Excluded information" of an agency is information that relates to any function of an agency that is specified in Schedule 2 of the GIPA Act in relation to that agency. Relevantly, the following information is "excluded information" for the purpose of the GIPA Act:
The respondent relies upon cl 1 of Sch 2 of the GIPA Act, which provides that the disputed information relates to the judicial functions of the Coroner's Court, because the matter referred to in the GIPA request was referred to the Coroner. In accordance with cl 1 of Sch 2, the respondent consulted the Coroner's Court as to whether it consented to the disclosure of the information, and the Coroner's Court did not consent.
The decision by the Coroner's Court to refuse to consent to the release of the disputed information is not a reviewable decision for the purposes of s 100 of the GIPA Act.
Much of the applicant's case was directed to personal factors of his GIPA request and he argued that the public interest in favour of disclosure outweighed the public interest against disclosure.
However, the effect of a conclusive presumption of an overriding public interest against disclosure of information is that an agency is not required to balance the public interest in favour of or against disclosure the before refusing access to that information.
Having read the disputed documents, I am satisfied that it is properly considered excluded information of the Coroner's Court and the evidence before me clearly indicates that the Coroner's Court did not consent to its disclosure to the applicant.
Accordingly, while the Tribunal feels considerable sympathy for the applicant and his family, it is not permitted to order that the excluded information be released to him in these proceedings because the public interest test does not apply.
[15]
Conclusion
For these reasons, I am satisfied that the correct and preferable decision is to affirm the decision under review.
[16]
Order
1. The decision under review is affirmed.
[17]
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: 14 November 2024