Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAP 257 Hearing dates: On the papers Date of orders: 7 December 2020 Decision date: 07 December 2020 Jurisdiction: Appeal Panel Before: A Britton, Principal Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing is dispensed with. (2) The decision of the Commissioner made 17 June 2019, not to grant access to the COPS User Guide, is set aside. In substitution for that decision, the Tribunal determines to grant Ms Wojciechowska access to the Guide. (3) The decision of the Commissioner made 17 June 2019, that the information requested by Ms Wojciechowska in her access application made 25 March 2019 is not held, is affirmed. Catchwords: ADMINISTRATIVE REVIEW — whether "information not held decision" made under s 58(1)(b) of the Government Information (Public Access) Act is the correct and preferable decision Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 Texts Cited: Nil Category: Principal judgment Parties: Paulina Wojciechowska (Appellant) Commissioner of Police (Respondent) Representation: Solicitors: Appellant (Self Represented) Crown Solicitor (Respondent) File Number(s): AP 20/05836 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 1 Date of Decision: 08 January 2020 Before: C Ludlow, Senior Member File Number(s): 2019/00205731 REASONS FOR DECISION 1. Ms Paulina Wojciechowska successfully appealed against a decision made by the Tribunal, which affirmed a decision made by the Commissioner of Police, NSW Police Force ("the Commissioner") under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act): Wojciechowska v Commissioner of Police, NSW Police Force [2020] NSWCATAD 1. The Appeal Panel, constituted by myself, set aside the Tribunal's decision and decided to deal with the appeal by way of a new hearing: Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 ("the Appeal Decision"). 2. The Commissioner's decision was made in response to an "access application" made by Ms Wojciechowska under the GIPA Act seeking among other things, "guidelines used by the NSW Police Force ("NSWPF") concerning the use of terms 'person of interest' and 'victim' in entries made in COPS". COPS is an electronic database used by the NSW Police Force to, among other things, record information about incidents that may require police action. 3. The Commissioner identified a single document, the COPS User Guide ("the Guide"), as falling within the scope of the information requested by Ms Wojciechowska. The sole issue addressed in these reasons is whether that decision, an "information not held" decision (s 58(1)(b) of the GIPA Act), is the correct and preferable decision. These reasons should be read in conjunction with the Appeal Decision, which sets out the background to the decision made by the Tribunal and the relevant legislative provisions. 4. For the reasons that follow, I have decided that the "information not held" decision is the correct and preferable decision. The hearing 1. In the Appeal Decision, I directed the parties to make written submissions about the "information not held" decision and to address the issues identified at [44] of the Appeal Decision. In addition, I invited the parties to comment on whether the review of that decision could be determined without a hearing, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"). 2. In answer to that direction each party provided written submissions. The Commissioner consented to the review being determined without a hearing. Ms Wojciechowska requested a hearing. 3. After considering the submissions made by the parties, I concluded that the review could be adequately determined "on the papers" and exercised the discretion to dispense with the requirement to hold a hearing: s 50(2) of the NCAT Act. In making that decision I considered the following relevant: the detailed and comprehensive nature of the submissions made by each party and the narrow range of issues required to be determined. In addition, I took into consideration that while she is self-represented, Ms Wojciechowska appeared to be fully able to engage with the issues and to prepare written submissions. 4. In conducting this review I have considered: the submissions made by the parties in answer to the orders made on 21 August 2020, the Guide, and the evidence before the Tribunal at first instance, including the oral evidence given by the delegate who made the Supplementary Decision, Mr Malcolm Smith. Background facts 1. To put the submissions in context, it is useful to set out some background facts to the decision the subject of the appeal. 2. In an access application made on 25 March 2019, Ms Wojciechowska requested the following items of information: "1. Definitions of terminology and abbreviations used in COPS such as 'Person of Interest', 'Victim', 'Occurrence', 'Status: verified' etc; 2. Rules governing when it is permitted to enter a person as a 'person of interest' and a 'victim'; 3. Rules regulating the creation of entries and data entries in COPS; 4. Manuals with rules how to use the COPS; 5. Internal policies of NSW Police or binding internal directives of NSW Police or its officials on investigating reports of destroyed vegetation on private land under ss 140 and 513 of Crimes Act 1900." In these reasons I will refer to Items 1 to 4 inclusive as "the requested information". 1. In a decision made on 17 June 2019 ("the Original Decision"), a delegate of the Commissioner identified the Guide as the only document containing the requested information. The delegate decided to refuse to grant Ms Wojciechowska access to the Guide, asserting that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure. The delegate concluded that disclosure of the Guide could reasonably be expected to prejudice the effective exercise by NSW Police of its functions (cl 1(f) of the Table to s 14 of the GIPA Act) and endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person (cl 2(d) of the Table to s 14 of the GIPA Act). 2. In the notice of that decision, the delegate stated that he was unable to find any information that fell within the scope of Item 5 of Ms Wojciechowska's request and set out the steps taken to locate that information. (That decision is not the subject of Ms Wojciechowska's application for administrative review). In addition, the delegate made an implicit decision that apart from the Guide, the NSWPF did not hold any information in relation to Items 1 to 4 of Ms Wojciechowska's request. 3. Dissatisfied with that decision, Ms Wojciechowska applied to the NSW Civil and Administrative Tribunal (NCAT) for review of that decision. Subsequently, a delegate of the Commissioner made a further decision, reversing the decision not to grant Ms Wojciechowska access to the COPS User Guide and granting Ms Wojciechowska access to the Guide ("the Supplementary Decision"). 4. At the hearing of the application for review before NCAT, Mr Smith, the delegate who made the Supplementary Decision, testified that he had conducted searches for the information requested by Ms Wojciechowska and the only information found was that contained in the Guide. Relevant factual issues 1. In these reasons I will address in turn the matters listed in the Appeal Decision at [44]. 2. Having reviewed the reasons given for the Original and Supplementary Decisions and the submissions made by Ms Wojciechowska, I conclude that the factual issues to be determined are: 1. whether the Guide is responsive to Ms Wojciechowska's request for the requested information; 2. whether Mr Smith undertook the searches he claimed to have undertaken for the requested information; 3. whether the version of the Guide given to Ms Wojciechowska, Version 2.1, is the current version of the Guide; 4. whether Mr Smith possessed the necessary skill and knowledge to undertake a search of the electronic records held by the NSWPF; 5. whether Mr Smith exercised reasonable care and skill in conducting those searches; 6. whether the NSWPF has satisfied the obligation imposed by ss 53(2) and 53(3) of the GIPA Act. Is the Guide responsive to Ms Wojciechowska's request for the requested information? 1. The Commissioner contends that the COPS User Guide comprehensively answers Ms Wojciechowska's request. While acknowledging that the Guide contains some of the information requested, Ms Wojciechowska contends that the information provided does not fully answer her request. Items 1 and 2 1. By Item 1, Ms Wojciechowska requested "Definitions of terminology and abbreviations used in COPS such as 'Person of Interest', 'Victim', 'Occurrence', 'Status: verified' etc." By Item 2, Ms Wojciechowska requested "Rules governing when it is permitted to enter a person as a 'person of interest' and a 'victim'". 2. The Authority contends that the Guide contains the information requested in Items 1 and 2, pointing to the following: Persons of interest and associated rules of entry 1. The definition of "Person of Interest" at p 18 of the Guide: "Principally a Person of Interest to the NSW Police is any person whose activities have come to the attention and interest of police over time. By definition it includes the following categories of person [followed by a list of persons, including 'missing and located person', 'suspect person' and 'offender']." 1. The comment in the introduction to the Guide: "COPS enables you to enter and enquire on the details of any persons ... that are of interest to police" (p 9). 2. The numerous examples throughout the Guide which provide guidance to Police about the use of the term Person of Interest: the rules governing the "status" of a "person of interest" (pp 50,51); the process for "creating" a "person of interest" (pp 102-107); the process for entering information where the person has had more than one type of involvement (p 55); searching for the person (pp 153, 158); the relationship between the term person of interest and persons entered in information reports (pp. 154, 155); the use of unique identification numbers for persons of interest (p 15); navigating relevant "screen types" (p 15), and descriptions and involvements of persons of interest (p 201). Victim and associated rules of entry 1. The Guide lists the term "Victim" as a category of "Involvement Type" (p 17). The Guide explains that "the status for victims identifies the way in which the person was involved in the incident" and goes on to list four sub-categories: financial ("a person whose money or assets [were] stolen or damaged"); trauma ("person physically threatened, accosted, assaulted or injured"); third-party present or nearby ("a person who was physically forced to, or chose to, remain present or nearby during the incident"); through whom committed ("a person forced to participate in an offence"). 2. In addition, the Guide includes rules for "unknown victims" or where no victim need be identified (p 102). The Guide explains the screen for "Create Victim", the pathway to enter a person as a victim (pp 23, 103). Status: Verified 1. Under the heading "Quality Assurance" the Guide states: "If an event has a status of Verified ... the quality of the information has been assured" (p 20). Under the heading "Verified" the Guide states "The accuracy and completeness of all of the information in the Event has been quality assured. This means that the Event has passed the quality review process." (p 49). 2. Headed "Verifying", Chapter 7 of the Guide deals with the process of verifying events; describes the relevant screens and the process of evaluating COPS events (see also pp 28, 29). The Guide explains the relevance of verification on operational reliance on the information (p 30); when a status might revert to unverified (p 31); prescriptive rules for when an event may not be verified (p 32, 44); and allocates responsibility for reviewing unverified events (p 45). In addition, the Guide defines related concepts such as "Pending Verify" (p 49); describes the process for events which fail the process (pp 67, 119); and describes the relevance of updates to verified events (pp 72, 120-124). Occurrence 1. Under the heading, "Selecting the Correct Incident Type", the Guide includes a Table which lists about 40 "Incident Types", including "fraud", "gaming", "lost property" and, relevantly, "Further Occurrence" (pp 57-62). The Table breaks down "Incident Types" into "Further Classifications". Some incident types, such as "street offence" and "firearm offences", have numerous "Further Classifications". Others, such as "Further Occurrence" and "Emergency and Disaster", have "no further classifications". 2. Throughout the Guide there are several references to the term "occurrence". It appears to carry its natural and ordinary meaning. Ms Wojciechowska's response 1. Ms Wojciechowska contends that the Guide contains "no information" in response to Item 2 and "incomplete" information to Item 1. Item 1 1. Ms Wojciechowska contends that the Guide does not contain definitions of the terms "Person of Interest" and "Victim". 2. She contends that the use of the word "principally" in "Principally a Person of Interest to the NSW Police is any person whose activities …", indicates that that the definition identified by the Commissioner is not a definition but rather "a generalisation of the definition elsewhere contained". Applying that reasoning she contends that the Guide does not answer her request for the definition of the term "Person of Interest". 3. With respect to the term "victim", Ms Wojciechowska asserts that the Guide does not carry a definition of that term, arguing that it is "grotesque to claim" that a mention of subcategories of "victim" is a definition. Item 2 1. Ms Wojciechowska contends that contrary to the submission made by the Commissioner, the Guide does not contain as requested by Item 2, "Rules governing when it is permitted to enter a person as a 'person of interest' and a 'victim'". Referring to the meaning given by the Macquarie Dictionary to the word "rule" — "a principle or regulation governing conduct, action, procedure, arrangement, etc" — she contends that the Guide does not contain "rules" governing when it is "permitted" to enter a person as a "person of interest" or "victim". Rather, she asserts that the Guide merely provides technical information about how to create the type of information to include in a COPS entry relating to a person categorised by the officer as a person of interest or victim. Consideration 1. Before addressing the parties' submissions, it is useful to set out some background facts. 2. In September 2018, Ms Wojciechowska reported to NSW Police that trees on her property had been removed without her permission. Dissatisfied with their response, Ms Wojciechowska made a complaint about the attending police officers to the Commissioner. In response to an access application made under the GIPA Act, the Commissioner gave Ms Wojciechowska copies of the COPS entries made by the attending officers which apparently described Ms Wojciechowska as a "person of interest". She found that description to be "shocking and devastating". That description was apparently the trigger for Ms Wojciechowska's decision to make the access application, the subject of these proceedings. 3. A review of the Guide reveals that it contains explanations of the terms listed in Item 1. I am unable to accept Ms Wojciechowska's argument that the use of the term "principally" in the definition of person of interest indicates that another definition exists which the Commissioner has failed to disclose. The first sentence of the definition gives a general description of the term; the second gives a non-exhaustive list of categories of persons who fall within that definition. Contrary to the submission made by Ms Wojciechowska, the use of the term "principally" indicates that the general description "any person whose activities have come to the attention and interest of police over time" is not exhaustive. 4. With respect to the term "victim", I reject the submission that because the Guide uses examples to explain the meaning of that term, it cannot be said to be a definition. The use of examples to define a term is a conventional drafting technique used to define terms which have a number of possible meanings. See for example the definition of "employer" in s 5 of the Child Protection (Working with Children) Act 2012 (NSW). 5. With respect to Item 2, Ms Wojciechowska submits that it is implausible that the only guidance or rules about the use in COPS of the terms "person of interest" and "victim" are those provided by the Guide. The premise which underlies that submission is that the Guide does not provide detailed or sufficiently detailed guidance or rules about the use of these terms. I do not accept that premise. 6. As detailed above, the Guide provides guidance on the use of the terms, "victim" and "person of interest". Whether the Guide could provide better or more detailed guidance is not to the point. Ms Wojciechowska's real complaint appears to be that the Guide does not provide an adequate explanation of why she was described as a person of interest in the COPS entry, the subject of her initiating complaint. The answer to that question probably can only be answered by the officers who made the offending entry. Item 3 1. By Item 3, Ms Wojciechowska requested "Rules regulating the creation of entries and data entries in COPS". By Item 4, Ms Wojciechowska requested "Manuals with rules how to use the COPS". 2. Ms Wojciechowska contends that the Guide provides "no normative information about creation of entries" and "little normative information about data entry". 3. Headed "Created", Chapter 4 of the Guide runs for 26 pages and provides detailed information about how to create an entry in COPS. Among other things it: 1. sets out the type of information that must be recorded in a COPS entry; 2. emphasises the need to provide accurate and comprehensive information; 3. provides step-by-step instructions about how to create a COPS event and enter data in relation to that event; 4. prescribes the details that must be included in relation to persons referred to in the entry, including a person of interest. 1. It is unclear what Ms Wojciechowska means by the use of the word "normative". If Ms Wojciechowska means to convey that the Guide does not contain information about how to create entries in COPS and the types of data to include in these entries, I am unable to agree. Item 4 1. By Item 4, Ms Wojciechowska requested "Manuals with rules how to use the COPS". Ms Wojciechowska accepts that the Guide can be described as a "manual with rules how to use COPS". However, she contends that the Commissioner failed to answer her request because by Item 4 she requested "manuals" and she was given access to only a single manual. Mr Smith's evidence, which I accept, is that the Guide is the only manual about the use of COPS that he was able to locate in his searches. Conclusion 1. I accept, as the Commissioner contends, that the Guide provides a full response to Ms Wojciechowska's request. While the comprehensive nature of that document is relevant to the assessment of whether the Commissioner has complied with the obligation to undertake reasonable searches for the requested information, it does not establish that the Commissioner has discharged that obligation. Therefore, it is necessary to consider the steps taken to locate any additional information. Did Mr Smith, as claimed, search for the requested information? 1. As noted in the Appeal Decision at [94]-[98], the Commissioner gave Ms Wojciechowska the draft and final version of the notice of the Supplementary Decision. In the latter, referring to the obligation to conduct reasonable searches imposed by the GIPA Act, Mr Smith stated: Under the GIPA Act, NSWPF must conduct reasonable searches to locate the government information you seek. A search of NSWPF records has been undertaken to identify all government information falling within the scope of your application. The results of these searches are listed in the Schedule of Documents included in the Notice of Decision. I can confirm that searches were carried out on various Databases such as the Computerized Operating Policing System (COPS), the Records Management System (RMS) as well as the NSW Police for intranet for policy and procedural information which would be captured under your application. 1. In evidence given in the proceedings at first instance, Mr Smith claimed that for the purpose of making the Supplementary Decision, he: 1. conducted searches for the requested information on three data bases: COPS, the NSW Police Force Records Management System (RMS) and the NSW Police Force Intranet ("the Intranet"); 2. used key words "COPS definitions", "COPS terminology", "COPS User guide", "definitions COPS" and "rules COPS" to search those databases; 3. using those key words, searched the policy folder of the Intranet, where, according to Mr Smith, all policies relating to NSWPF's investigative functions are held; 4. reviewed the title content of each policy located by the above key word searches; 5. examined each of those policies and found none contained the requested information; 6. consulted a colleague, a serving police officer, about where to search for the requested information and was told that she would search in the three databases listed in (2) above. 1. Mr Smith claimed that apart from the Guide, the searches described above produced no results. 2. While Ms Wojciechowska challenges Mr Smith's "credibility" (see below), she does not suggest that he did not undertake the searches described above. Having reviewed the affidavit dated 30 September 2019, prepared by Mr Smith for the proceedings at first instance, together with the oral evidence he gave in those proceedings, I am satisfied that, as claimed, Mr Smith conducted the searches described above. Is the version of the Guide given to Ms Wojciechowska the current version of the Guide? 1. The Commissioner gave Ms Wojciechowska access to Version 2.1 of the Guide, which was published in September 2010. Ms Wojciechowska contends that it is improbable that this is the most recent version of the Guide. 2. In his affidavit at [7]-[10], Mr Smith stated that Version 2.1 of the Guide: 1. was current between August and October 2018 (when the COPS entries about which Ms Wojciechowska complains were made); 2. remains current; 3. appears on the Intranet; and 4. is currently used by officers and staff of the NSWPF. 1. Ms Wojciechowska questioned Mr Smith at length about the currency of the Guide, pointing out that under "Revision History" the Guide states: 1. It was first published in April 1994 and revised in August 1994, November 1997, December 2003, March 2006 and September 2009. 2. "Plans are currently underway to conduct a complete and thorough review of the content of this document." 1. When taken to this information, Mr Smith did not resile from his claim that his searches revealed that Version 2.1 was the current version of the Guide. 2. Ms Wojciechowska contends that in circumstances where the Guide had been revised on a reasonably regular basis between August 1994 and September 2009, it is implausible that more than 10 years would have passed without the NSWPF making any further revisions to the Guide. Consideration 1. I agree with Ms Wojciechowska that the Guide's age and revision history together with the announcement made in 2010 of plans being underway to revise that document, gives cause to question whether Version 2.1 is the current version of the Guide. Mr Smith gave detailed evidence about the steps he took to enquire into its currency. I accept those claims. It is more probable than not that Version 2.1 is, as claimed, the most recent version of the Guide. Mr Smith's skill and knowledge to search for the requested information 1. Ms Wojciechowska asserts that the evidence given by Mr Smith in these proceedings reveals that his attention to detail is "significantly below average". She argues it can be inferred, as a consequence, that he failed to exercise reasonable care in searching for the requested information. In addition, Ms Wojciechowska asserts that Mr Smith lacked the necessary skill and knowledge to conduct a reasonable search for the requested information on the NSWPF's databases. She contends that these factors support a conclusion that the Commissioner has failed to discharge the obligation imposed by s 53 of the GIPA Act to "undertake such reasonable searches as may be necessary to find" the requested information. Attention to detail "significantly below average" 1. In support of this contention, Ms Wojciechowska points to the oral evidence given by Mr Smith in the proceedings at first instance. She claims it reveals that Mr Smith: 1. "does not know what he wrote in his affidavit; 2. reads by omitting words; 3. admits to making numerous mistakes in his affidavit; 4. cannot find a page that is right in front of him in the circumstance where both pages are printed on the same side; 5. has problems distinguishing one document from another." 1. Having reviewed the extracts of the transcript on which Ms Wojciechowska relies, I am not persuaded that they support the above claims, less still a finding that Mr Smith's attention to detail is "significantly below average". 2. For example, in respect of the claim that Mr Smith "did not know what he wrote in his affidavit", the extract of the transcript on which Ms Wojciechowska relies reveals that in oral evidence Mr Smith stated that before searching the Intranet using the keywords listed at [38] above, he conducted what he described as a "generalised search". In oral evidence he acknowledged that he omitted to mention that claim in his affidavit. This reveals that Mr Smith did not record every step he took in searching for the requested material. However, it does not establish that Mr Smith "did not know what he wrote in his affidavit". They are not one and the same. 3. With respect to the second claim, in cross-examination after reading, at Ms Wojciechowska's request, the requested information listed in the initiating access application, Ms Wojciechowska stated that Mr Smith omitted to read the phrase "definitions of terminology" contained in Item 1 ("Definitions of terminology and abbreviations used in COPS such as 'Person of Interest', …" (emphasis added)). The transcript reveals that Ms Wojciechowska is mistaken: MS: "I am requesting the following information: (1) definitions of terminology and abbreviations used in COPS … … PW: Yeah. Because I didn't catch when you were reading point 1, can I get you to read it again? Because I just couldn't hear. Definitions of terminology (Emphasis added) (Transcript Wojciechowska v Commissioner of Police, 2019/00205731, 8 October 2019 p 18) Lacked sufficient expertise to conduct electronic searches 1. Ms Wojciechowska asserts that "credible and reliable experts on electronic searches must turn their minds to search operators to be able to choose search words and adapt search settings to avoid false negatives". In addition, she asserts that Mr Smith has no credibility as a "search expert" and "unashamedly admits no knowledge about the operators that can be used in the search engine he uses". 2. Ms Wojciechowska contends that the electronic searches conducted by Mr Smith were inadequate. Specifically, she contends that the search terms he used — "COPS definitions", "COPS terminology", "COPS User guide", "definitions COPS" and "rules COPS" — were unduly narrow. 3. In written submissions, Ms Wojciechowska detailed the steps she asserts would be necessary to undertake, to conduct a reasonable search. They include using different keywords and filters to those used by Mr Smith. She contends that because Mr Smith did not follow those steps, his search was inadequate. Consideration 1. Dealing first with the challenge to Mr Smith's expertise, Ms Wojciechowska misstates the evidence. Mr Smith did not "admit" as Ms Wojciechowska asserts to having "no knowledge about the operators that can be used in the search engine he uses". In cross-examination, Mr Smith acknowledged that he was not across the "fine detail" but disagreed with the proposition that he had no knowledge about the operation of search engines. He pointed out that he had received some training about their operation. 2. In addition to the Guide, the NSWPF undoubtedly holds information which contains numerous references to the terms, "victim", "person of interest" etc., and guidance/rules about the use of those terms. However, that was not the information described by Ms Wojciechowska in her access application. She did not request information at large about the terms, "victim", "person of interest" etc., but information about their use in COPS. Similarly, the request in relation to the "rules" governing the use of those terms and the creation of data entries using those terms was made in respect of COPS. The criticism made by Ms Wojciechowska of the search terms used must be seen in the context of the nature and scope of the information requested. I am unable to accept the contention that the search undertaken was flawed because the search terms used by Mr Smith were unduly narrow. 3. With respect to the "best practice" search outlined by Ms Wojciechowska in submissions, she did not disclose the basis for her professed knowledge of and skill in the use of search engines. Nor did she provide any independent evidence which might support the proposition that the search she proposed is likely to have been more effective than that undertaken by Mr Smith. 4. It may be that, had Mr Smith approached the electronic searches in a different way, additional information that fell within the scope of the requested information may have been uncovered. A forensic IT expert may have been able to locate additional information. It does not follow, however, that the searches conducted by Mr Smith did not satisfy the obligation imposed by s 53 of the GIPA Act to "undertake such reasonable searches as may be necessary to find any of the government information applied for…". (emphasis added) Significance of failure to locate Police Handbook 1. Ms Wojciechowska argues that Mr Smith's failure to locate the NSW Police Handbook ("the Handbook") is telling and indicates that the searches he conducted were inadequate. The Handbook is a publicly available document. Ms Wojciechowska points out that the Handbook contains the phrase "COPS User Guide" together with the words "COPS", "rules", "user" and "definition". Consideration 1. The submissions made by Ms Wojciechowska in relation to the Handbook are a variant of the submissions made in relation to the breadth of the search terms used. That the Handbook mentions the Guide together with the words listed at [59] above does not establish that the search conducted by Mr Smith was deficient in some way, or not reasonable. Relevance of existence of "Screen Help" 1. The Guide refers to "Screen Help" at p 13: "Additional Support Available As well as the COPS User Guide, the following performance support is available: • Screen Help and field help gives detailed information on how to use each screen and data entry field in COPS." 1. Ms Wojciechowska contends that the Commissioner failed to establish that "Screen Help" does not fall within the scope of the requested information. 2. In addition, Ms Wojciechowska appears to contend that Mr Smith conceded that he did not search COPS, specifically "Screen Help", for the requested information. 3. This misstates the evidence. The purported concession made by Mr Smith relates to Item 5 ("Internal policies of NSW Police …"). Mr Smith stated that he searched COPS for Items 1-4, not Item 5. Relying on his familiarity with COPS, having worked for the past 24 months searching for information in answer to access applications made under the GIPA Act, he asserted that COPS did not contain policy-type documents, such as those described in Item 5. Training materials 1. Ms Wojciechowska contends that the failure to locate any training material containing the requested information evidences that the search undertaken by Mr Smith was inadequate. Pointing to the fact that the Guide has been in existence since 1994, together with the reference in the Handbook to "[E]xtensive educational and training material being on the Police intranet", Ms Wojciechowska asserts that it is improbable that the NSWPF does not hold any training materials containing the requested information. 2. In the proceedings at first instance, Ms Wojciechowska questioned Mr Smith at length about training material. Mr Smith conceded that he did not conduct a specific search of training and education material. He stated that if the NSWPF held training and education material which contained the requested information, the searches he conducted would have located that information. Consideration 1. Given its key role in the operation of the NSWPF, it is probable that the NSWPF holds a significant amount of information used to train officers and staff about the role and use of COPS. 2. Had Mr Smith used the term "COPS training" and located no information, it would give cause to question the quality of the searches undertaken. However, the information requested by Ms Wojciechowska was narrower in scope. While possible that the NSWPF holds training material containing the requested information, I am not persuaded that the failure to locate that information indicates that the search undertaken by Mr Smith was deficient in some way or not reasonable. Conclusion 1. It falls to the Commissioner to establish that the "information not held" decision is justified. Relevant to that assessment is whether the NSWPF complied with the obligation imposed by s 53 of the GIPA Act. 2. At [36]-[38] of the Appeal Decision, I considered the nature and scope of that obligation. To restate, s 53 requires an agency to undertake "such reasonable searches as may be necessary to find" the requested information: s 53(2). That obligation is limited to "information held by the agency when the [access] application is received": s 53(1). The search must be conducted "using the most efficient means reasonably available to the agency": s 53(2). The obligation extends to searches using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically": s 53(3). The obligation to search does not extend to searches that would require a "substantial and unreasonable diversion of the agency's resources". 3. As discussed at [37] of the Appeal Decision, whether there are reasonable grounds to believe that the information the subject of an access application exists and is held by an agency, is plainly relevant to the nature and extent of the searches necessary to discharge the obligation under s 53. Here, it could not be said that it is farfetched or fanciful that in addition to that contained in the Guide, the requested information exists and is held by the NSWPF. 4. For the reasons outlined above I accept, as contended by the Commissioner, that the Guide comprehensively answers Ms Wojciechowska's request for the information described in Items 1-4. While relevant, that does not fully answer whether the NSWPF has satisfied the obligation imposed by s 53. 5. I accept, as submitted by Ms Wojciechowska, that a relevant factor in determining whether the NSWPF satisfied that obligation is whether, at the time Mr Smith searched for the requested information, he had sufficient knowledge of the NSWPF's databases and how to search those databases together with the skill to be able to apply that knowledge. I accept, as Mr Smith claims, that he is familiar with the NSWPF's databases and has received some training in how to search them. Nonetheless, he could not be described as a forensic IT expert. A person with such expertise is likely to have been able to conduct a more rigorous and comprehensive search. It does not follow that the obligation imposed by s 53 is not satisfied. It requires "reasonable searches" to be undertaken using "any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically" (s 53(3)). Notably, an agency is not required to undertake any search that would require a "substantial and unreasonable diversion of the agency's resources": s 53(5). There may be cases where a person's lack of knowledge of an agency's databases and/or lack of knowledge and/or skill in retrieving information, tends to indicate that the search undertaken could not be characterised as reasonable. I am not persuaded that this is such a case. 6. Ms Wojciechowska may be correct in her belief that the NSWPF holds further information which falls within the scope of her request. While s 105 requires the NSWPF to establish that the "information not held" decision is justified, it does not require the NSWPF to disprove that it holds the requested information. Having reviewed the available material and the submissions made by the parties, I am satisfied on balance that the NSWPF has discharged the obligation imposed by s 53. 7. For these reasons, I conclude that the "information not held" decision is the correct and preferable decision. Orders 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing is dispensed with. 2. The decision of the Commissioner made 17 June 2019, not to grant access to the COPS User Guide, is set aside. In substitution for that decision, the Tribunal determines to grant Ms Wojciechowska access to the Guide. 3. The decision of the Commissioner made 17 June 2019, that the information requested by Ms Wojciechowska in her access application made 25 March 2019 is not held, 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: 07 December 2020