Information Access Case Note: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Read the decision here: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Summary

The Appeal Panel upheld in part Ms Wojciechowska’s (Appellant) appeal on the Tribunal’s administrative review decision in Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1 (8 January 2020) which affirmed the decision by the Commissioner of Police (Respondent) that the information sought under the Government Information (Public Access) Act 2009 (GIPA Act) was not held. The Appeal Panel concluded that while the Tribunal’s decision applied established principles from the Shepherd test for determining whether information is held, those principles “are plainly wrong and it followed that the Tribunal misapplied s. 53 and s. 105 of the GIPA Act” with respect to the Respondent’s search obligations and its onus to show that it had conducted reasonable searches. The Appeal Panel (at [44]) proposed a new five-step approach for the Tribunal when reviewing a decision that the requested information is not held by an agency. 

What you need to know

The decision confirms that the agency’s search efforts under s. 53 to locate the information sought by an access application, are a relevant factor in the Tribunal’s review of a decision that the information is not held. The Appeal Panel emphasised that the agency’s familiarity with its record management and retrieval systems generally makes the agency best placed to assess whether the information exists and is held.

The Appeal Panel rejected previous Tribunal authority and the Shepherd test which placed the obligation on the access applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for the belief that the information is held.  

The Appeal Panel introduced a five-step approach to the Tribunal’s task in determining whether the agency has satisfied the onus under s. 105 that the requested information is not held (at [44]).  

Legislative background

GIPA Act

Section 53 searches for information held by agency

Section 58 how access applications are decided

Section 105 onus on agency to justify decisions  

Review of decision

Section 80(2)(b) Civil and Administrative Tribunal Act 2013 (leave to appeal on grounds on a question of law)

Factual background

Access application

Ms Wojciechowska made an access application for her report and complaint to NSW Police concerning the removal of trees on her property. The Commissioner of Police provided information in response to the access application, including copies of the entries made in the Computerised Operational Policing System (COPS) by the police officers who responded to Ms Wojciechowska’s report. Ms Wojciechowska made another access application for information about the rules, manuals or internal policies used by the NSW Police Force concerning the use of terms “person of interest” and “victim” in entries made in COPS.  On 17 June 2019, the Commissioner of Police made a decision under s. 58(1)(b) that some information is not held, and s. 58(1)(d) to refuse to provide access to the COPS User Guide because there is an overriding public interest consideration against disclosure.  

Tribunal review

Ms Wojciechowska applied for administrative review of the decision, following which, the Commissioner of Police made a further decision, reversing the decision not to provide access to the COPS User Guide and granting Ms Wojciechowska access to that guide (a Supplementary Decision). Following review, the Tribunal decided to affirm the Supplementary Decision: Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1.

Appeal

The Appellant appealed the decision on a range of grounds outlined in [24] of the decision, including, five ‘sub-grounds’, notably, that the Tribunal erred by placing the onus of proof on Ms Wojciechowska, not making a correct and preferrable decision, and upholding the decision unsupported under the GIPA Act.  The Appeal Panel identified (at [27]) that central to these sub-grounds, is the contention that the Tribunal misapplied ss. 53 and 105 of the GIPA Act.

Appeal Panel findings

On the ground of appeal that the Tribunal misapplied s. 53 and s. 105 of the GIPA Act, the Appeal Panel (at [30]-[37]) considered the established principles and case authority relied on by the Tribunal, including, the test in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 (Shepherd). The Appeal Panel (at [32]) referred to the two questions formulated by the Queensland Information Commissioner:

(a)   whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency …; and if so,

(b)   whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

At [37], the Appeal Panel confirmed that the question of whether there are reasonable grounds to believe that the information the subject of the access application exists, and is held by an agency, is plainly relevant to the nature and extent of the searches required to be undertaken to discharge the obligation under s. 53.

However, the Appeal Panel rejected the Shepherd two-question test in the context of agency decision-making and in administrative review, and concluded at [38] and [41] that:

… there is no warrant for interpreting s 53 of the GIPA Act to mean that the obligation to undertake “reasonable searches” is enlivened only where the access applicant establishes to the satisfaction of the agency (or the Tribunal on review) that “there are reasonable grounds to believe that the requested information exists and is held by the agency: at [38]

…  the application of the two-step test in Shepherd is plainly wrong … and is at odds with s. 105 of the GIPA Act which places the burden on the agency of establishing that its decision that information is not held, is justified: at [41].

The Appeal Panel identified the following relevant factors:

• The agency’s familiarity with the type of information it holds, its information management and retrieval systems, that generally make the agency best placed to make an assessment about the likelihood that the requested information exists and is held by it. 
• Requiring an applicant, who may not be familiar with those systems, to first establish that there are reasonable grounds to believe that the requested information exists and is held by the agency, sits uncomfortably with the obligation imposed by s. 53.
• The basis for the applicant’s belief that the requested information exists and is held by the agency may assist the agency in identifying and finding the requested information.
• However, the failure of an applicant to satisfy the agency (or the Tribunal) that there are reasonable grounds for that belief should not be considered as being dispositive of the question of whether the agency’s “information is not held” is the correct and preferable decision: at [38].

The Appeal Panel proposed the following five-step approach to its review of an information not held decision:

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 1997.

Tribunal outcome

The Appeal Panel allowed the appeal in part, set aside the Tribunal’s decision, and dismissed the balance of the appeal.