Information Access Case Note: Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288

Read the decision here: Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288

Summary

The matter involved an application for review of a decision by the Respondent that information was not held in relation to item 3 of the Applicant’s access application. The access application sought information about strip searches conducted by NSW Police in the 2018-19 and 2019-2020 financial years, including at item 3:

…

3. Out of the type of drug found, how many of those strip searched were charged with:
   1. Drug possession under s 10(1) of the Drug Misuse and Trafficking Act (‘the Act’)
   2. Supply of a prohibited drug under s 25(1) of the Act
   3. ongoing supply under s 25A of the Act
   4. deemed supply under s 29 of the Act.

In response to an access application made in 2019 for similar but not identical information, the Respondent had run a bespoke Standard Query Language (SQL) program over the data it held.  For this access application, the Respondent chose not to write a new SQL code for the information sought.

The Tribunal preferred the narrower construction of "government information" and found that government information is limited to information which exists at the time of the access application. In making that determination the Tribunal had regard to:

1. the context of the GIPA Act, particularly
   1. section 53(1) which limits the obligation on an agency to provide access to government information in response to an access application to information held by the agency when the application is received
   2. section 75 which provides that an agency is not obliged to create a new record in response to an access application
2. the purposes of the GIPA Act set out in the long title and s. 3 of the GIPA Act.

Accordingly, the Tribunal held that the information sought by item 3 was not “government information”.

The Information Commissioner notes that this narrower construction of “government information” may make it difficult for citizens to seek information that is meaningful, particularly as technology advances and government information is increasingly digitised and stored as data. In these circumstances data is subject to ‘treatment’ before it becomes information. Under these arrangements data is often stored in different data sets for reasons which include privacy preservation and to mitigate the impact of cyber-attacks. Similarly, the deletion of information contained in a government record as a means of providing access is not readily available to agencies under these information storage and retrieval arrangements.

What you need to know

Government information is limited to information which exists at the time of the access application. The obligation on 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. An agency is not obliged to create a new record in response to an access application to bring the information sought into existence.

Legislative background

GIPA Act

Section 3 object of Act

Section 4 interpretation

Section 5 presumption in favour of disclosure of government information

Section 9 access applications

Section 53 searches for information held by agency

Section 58 how applications are decided

Section 75 providing access by creating new record

Section 80 which decisions are reviewable decisions

Section 100 administrative review of decision by NCAT

Schedule 4 interpretative provisions

• Clause 1 definitions
• Clause 10 meaning of “record”
• Clause 12 government information held by agency

Review requirements and jurisdiction

Administrative Decisions Review Act 1997

Section 9 when administrative review jurisdiction is conferred

Section 63 determination of administrative review by the Tribunal

Civil and Administrative Tribunal Act 2013

Section 28 jurisdiction of Tribunal generally

Section 30 administrative review jurisdiction

Factual background

The matter involved an application for review of a decision by the Respondent that information was not held in relation to item 3 of the Applicant’s access application. The access application sought information about strip searches conducted by NSW Police in the 2018-19 and 2019-2020 financial years, including at item 3:

…

3. Out of the type of drug found, how many of those strip searched were charged with:
   1. Drug possession under s 10(1) of the Drug Misuse and Trafficking Act (‘the Act’)
   2. Supply of a prohibited drug under s 25(1) of the Act
   3. ongoing supply under s 25A of the Act
   4. deemed supply under s 29 of the Act.

In 2019, the University of New South Wales (UNSW) made an access application for information similar but not identical to the information sought by the access application at item 3. The State Intelligence Command (SIC) unit of the NSW Police Force (NSWPF) responded to that application after it ran a bespoke SQL program over data held by the NSWPF. The SIC is the unit within the NSWPF primarily responsible for extracting, compiling, verifying, and analysing data from the Computerised Operational Policing System (COPS).

The Respondent provided evidence that, in order to respond to the Applicant’s application in this matter, it would need to write a new code in SQL. It was not possible to simply run the SQL program created for the UNSW Application to obtain an answer to item 3.

The Applicant submitted that:

• writing a new code in SQL could be best characterised as compiling electronic material, or in other words, producing an existing record
• all government information is held electronically and the policy of the GIPA Act is to make government information available. If the definition of “government information” is restricted to information in the form in which it originally existed, this could be open to abuse by agencies who might adopt a policy of not interrogating their databases and claiming that information is not held when the request in the access application does not correspond to a request for raw data
• in modern electronic data storage mechanisms, electronic data is regularly held in separate and disparate locations within record keeping systems and to produce usable information from that data often requires a level of compilation. It cannot be said that such compilation is the creation of a new record
• running the SQL query should be seen as a standard function in circumstances where it has been done before, in respect of the UNSW Application.

The Information Commissioner exercised her right to participate in the proceedings under s. 104(1) of the GIPA Act and filed written submissions.

The issues for determination by the Tribunal were:

1. Whether item 3 was a request for “government information” that was held by the Respondent; and
2. If so, would searching for that information require “an unreasonable and substantial diversion” of the respondent’s resources?

Tribunal findings

Was item 3 a request for “government information” that was held by the Respondent?

The Computerised Operational Policing System, the Enterprise Data Warehouse and Structured Query Language

The Tribunal noted that COPS is:

1. the primary database used by the NSWPF to record operational information and intelligence. All crime reports to the NSWPF are recorded in COPS. The data on COPS is stored in a number, likely thousands, of tables;
2. comprised of a number of different systems, developed at different times and for different purposes.

The Tribunal further noted that the Enterprise Data Warehouse (EDW) was developed to allow the NSWPF to analyse COPS data. Data is stored in the COPS database across a large number of different tables. The EDW brings these tables together in the form of particular “data marts”. The data marts capture a large proportion, but not all, of the data that is stored on COPS. A “data mart” is a predefined subset of the data in the EDW, against which a query can be run. The main data marts used by the SIC to generate crime statistics are:

1. “Incidents”, which includes certain data about COPS incidents or events. It does not include any detail about the demographics of the people involved in a specific incident or event;
2. “Legal Actions”, which combines data from the Charge Management System with other data relating to court-based and non-court-based actions as well as information about the matter and demographics of people involved in the matter;
3. “Court Actions”, which includes data in relation to court based actions only (e.g., court attendance notices). It also contains information about the matter and demographics of people involved in the matter;
4. “Non-Court Actions”, which includes data in relation to non-court based actions only (e.g., traffic infringement notices). It also contains information about the matter and demographics of people involved in the matter; and
5. “Involvement – Person and Organisation”, which includes data in relation to events as well as the demographics of the people involved in the event.

A query run in the EDW will generate a pivot table of data, which can then be viewed and manipulated in Microsoft Excel and transferred to Microsoft Word. Whilst the EDW allows more searches to be undertaken than COPS, it also has limits. In particular, the EDW only allows searching within a particular data mart and a search query cannot be run against more than one data mart simultaneously. Where there is no single data mart that contains all of the necessary fields to be searched and therefore the query cannot be run using the EDW, it is necessary to write a code in SQL.

SQL is a computer programming language which, when run against one or more data marts, will produce an output table in the SQL application. The output table can then be placed into a Microsoft Excel spreadsheet, so that it can be reviewed, verified, compiled, or manipulated as necessary and transferred to Microsoft Word.

Tribunal’s finding

The Tribunal preferred the narrower construction of "government information"; that government information is limited to information which exists at the time of the access application. In making that determination the Tribunal had regard to:

1. the context of the GIPA Act, particularly
   1. section 53(1) which limits the obligation on an agency to provide access to government information in response to an access application to information held by the agency when the application is received
   2. section 75 which provides that an agency is not obliged to create a new record in response to an access application
2. the purposes of the GIPA Act set out in the long title and s. 3 of the GIPA Act.

The Tribunal therefore found that, at the time of the access application, the NSWPF did not have a record which contained the information sought by the Applicant, although it was possible to bring such a record into existence, by the creation and application of a bespoke computer program. Accordingly, the Tribunal held that the information sought by item 3 was not “government information”.

The Tribunal further noted that the fact that an SQL program was run in answer to the UNSW Application was irrelevant, as the Respondent was under no obligation to do so in that case or this case.

In light of the conclusion reached in relation to the first issue, the Tribunal held that it was unnecessary and inappropriate to consider the second issue as to whether searching for the information sought would be "an unreasonable and substantial diversion" of the Respondent's resources.

Tribunal outcome

The Tribunal affirmed the decision under review.