McDonald v Commissioner of Police, NSW Police Force [2019] NSWCATAD 66

Read the decision here: McDonald v Commissioner of Police, NSW Police Force [2019] NSWCATAD 66

Summary

This review decision concerns three decisions made by NSW Police Force (respondent) under the Government Information (Information Access) Act 2009 (GIPA Act) in response to an access application made by Mr McDonald (applicant) on 5 July 2016. The respondent’s first decision refused to release some documents, for which the application sought the Tribunal’s review. The Tribunal directed the respondent to make further searches and to better identify the information, which led to the second and third decisions. The issues for administrative review were the reasonableness of the agency’s searches, and the applicant’s concern that NSW Police Force failed to apply the public interest balancing test. The Tribunal found that the searches were reasonable and that the respondent’s evidence contained nothing to suggest that there was more information which could be reasonably located in response to the application. With respect to the public interest considerations against disclosure, the Tribunal affirmed the respondent’s decisions in relation to most of the documents, but remitted some of the documents to the respondent for reconsideration and redaction. The Tribunal also considered the personal factors of the application in relation to the “mosaic effect” and considered that release of some of the information could enable an individual to be identified through the mosaic effect.

What you need to know

The decision considers the adequacy of searches for information, as well as the relevant principles for the public interest considerations against disclosure in item 1 (responsible and effective government), item 2 (law enforcement and security), and item 3 (individual rights, judicial processes and natural justice) to the Table to section 14(2) of the GIPA Act.

The decision reminds agencies of their obligation under section 53 to conduct reasonable searches for information falling within the scope of the access application. The Tribunal confirmed that it is the terms of the application which sets the scope of the application.    

In discussing the public interest test in section 13, the Tribunal used unique terminology to describe the public interest considerations in favour of and against disclosure, by referring to these factors as ‘positive and negative elements’. The Tribunal described the balancing test as involving the decision about whether the negative factors outweigh the positive factors in determining whether to grant or refuse access to information.

Although the GIPA Act does not use this terminology, the Tribunal’s description affirms that the weighing exercise is applied to determining whether the balance lies in favour of disclosure or against disclosure.

Legislative background

GIPA Act
Section 80(d) review of decision to refuse to provide access to information

Section 12 public interest considerations in favour of disclosure

Section 13 public interest test

Section 14(2) public interest considerations against disclosure, including, clause 1(d), clause 1(e), clause 1(f), clause 1(h), clause 2(a), clause 2(b), clause 3(a)

Section 53 Searches for information held by agency

Section 54 Consultation on public interest considerations

Section 61 Notice of Decision to provide reasons for a decision

Review of decision
Section 100 Administrative review of decision by NCAT

Section 30 Civil and Administrative Tribunal Act 2013

Factual background

Mr McDonald is a former police officer whose employment with the NSW Police Force ended in 2003. Mr McDonald brought multiple complaints against serving and former police officers, and also lodged numerous access applications for information under the GIPA Act.  NSW Police Force provided Mr McDonald with an audit document of its search results in which had been generated from the agency’s Computerised Operating Policing System (COPS). Informed by this report, Mr McDonald then made the access application on 5 July 2016 for “all information/documents” relating to him as identified in the attached audit report. NSW Police Force tended evidence to show that the COPS generated audit report is not a list of searches performed for the applicant’s name, but that it is a list of the times that the applicant’s name appeared in search results in the search period. NSW Police Force provided the Tribunal with a consolidated schedule containing 35 documents, which listed duty books of named police inspectors, draft reports, summary of audit findings and COPS events, investigators file notes; and mainly email correspondence. Of the 35 documents, two were released in full, 11 were no longer sought by Mr McDonald, and the remainder were refused in full or released in part with redactions.

Tribunal findings

In reviewing the adequacy of the respondent’s searches, the Tribunal affirmed the requirement under section 41(1)(e) of the GIPA Act that an access application must be sufficiently specific to enable the information applied for to be identified. The Tribunal also commented that if the applicant submits there is further information, then it is “a necessity for the applicant to put forward credible material or argument that there are reasonable grounds for so believing” (at [48]). The Tribunal then affirmed the operation of section 105 of the GIPA Act, and previous Tribunal authority in Amos v Central Coast Council [2018] NSWCATAD 101 at [39], that the onus falls on the agency to establish that it does not hold any further information which responds to the access application to be located by reasonable searches.

In relation to the adequacy of the NSW Police Force’s searches, the Tribunal found (at [50]):

“In the present case, the clarity of the access application limits the search process. There were three decisions here, but the fact that further documents have been located at each step does not necessarily mean that the searches have not been reasonable, see M J v Department of Education & Communities [2014] NSWCATAD 12 at [28].

The Tribunal was satisfied that the agency conducted reasonable searches, based on the following considerations (at [52]-[54]):

• The agency has sufficiently explained the COPS system and the audit log system upon which the applicant had placed reliance (at [52]), and also provided detailed evidence of the various searches which included personnel files of persons who had left the police force (at [53]);
• The applicant’s submissions seem to be speculative (at [54]) and it is not sufficient to assert non-compliance based on general distrust (referring to Sheehy v Commissioner of Police [2018] NSWCATAD 73) (at [48]).

In considering the public interest factors for and against release of the information contained in each of the documents in contention, the Tribunal commented that it has considered the interpretational principles in the clauses identified in the Table to section 14(2). The Tribunal stated (at [107]) that it:

“… has borne in mind the general presumption which favours disclosure and accorded it considerable weight. I have considered the grounds for refusal to disclose using the principles set out above; asked myself whether it is reasonable to expect that the claimed effects may occur; then assigned weight to those grounds which I consider have been made out … I have then balanced the factors for and against disclosure to determine whether the negative factors outweigh the positive.”

The Tribunal considered the evidence of the impact of disclosure provided by the respondent with respect to the 35 documents (at [108]-[116]), and found that the prejudicial effects in 1(d) and 2(b) were not sustained, and that not all of the redacted information fell within the scope of clause 1(e) (at [108]-[110]). However, release was likely to reveal the identities of individual informants and the Tribunal considered that the claims under clause 2(a) (reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant), were strong factors against disclosure (at [111]). For a number of documents, the Tribunal determined that the agency should consider suitable redaction of personal information concerning persons not named in the access application (at [109], [110] and [112]. With respect to the summary report of the COPS Audit event, the Tribunal found very strong factors against disclosure, including that disclosure of this information would reveal details of a personal nature which could not be cured by simple redaction (at [115]).  

In considering the personal factors of under section 55 of the GIPA Act, the Tribunal (at [92]) considered the ‘mosaic effect’:

“ … the mosaic effect describes the situation where the applicant or persons on the applicant's behalf undertake a systematic approach to the making of numerous FOI/GIPA applications with the ultimate aim of putting the pieces together and discovering significantly more than she or he is otherwise entitled to. In Selby v Commissioner of Police (NSW) [2013] NSWADT 61 at [64]-[65], the Tribunal applied this reasoning to the potential ability of the applicant to piece together the identity of the informants from different information.” 

The Tribunal (at [93]), gave considerable weight to the respondent’s submission on clause 2(a) that, as the subject of a number of complaints, the applicant was likely to be able to ascertain who provided the information, even if names were redacted. The Tribunal also accepted (at [105]) that the release of personal information relevant to clause 3(a) (even where the individual’s name is deleted from the document), could enable an individual to be identified through the mosaic effect.   

Tribunal outcome

The Tribunal affirmed the respondent’s decision in relation to most of the documents, and remitted five specified documents to the agency for reconsideration and redaction.