Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bradford v Commissioner of Police [2021] NSWCATAD 262 Hearing dates: 4 June 2021 Date of orders: 13 September 2021 Decision date: 13 September 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: A Starke, Senior Member Decision: The decision of the respondent dated 1 March 2020 is affirmed. Catchwords: ADMINISTRATIVE LAW — Public access to government information — Request for information — Whether adequate searches undertaken —Conclusive presumption regarding "excluded information" of an agency Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crime Commission Act 2012 (NSW) Government Information (Public Access) Act 2009 Police Act 1990 (NSW) Cases Cited: Camilleri v Commissioner of Police (NSW) [2012] NSWADT 5 Commissioner of Police v Danis [2017] NSWCATAP 7 Davison v NSW Department of Education and Training [2013] NSWADT 25 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121 Miriani v Commissioner of Police, NSW Police Force [2005] NSWADT 187 Mizzi v Commissioner of Police (NSW) [2013] NSWADT 150 MJ v Department of Education and Communities [2014] NSWCATAD 12 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490; (1998) 194 CLR 355; [1998] HCA 28 Smith v Commissioner of Police [2012] NSWADT 85 Taylor v Office of Destination NSW [2018] NSWCATAD 195 Walker v Roads and Maritime Services [2019] NSWCATAD 117 Texts Cited: Macquarie Dictionary, 7th Ed, 2017 The Collins Paperback English Dictionary, 1986 Category: Principal judgment Parties: Dr Adrian Bradford (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self-represented) Crown Solicitor (Respondent) File Number(s): 2020/339798 REASONS FOR DECISION Introduction 1. Dr Adrian Bradford (the applicant) applied to the Tribunal by way of application dated 25 November 2020 for administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of an internal review decision by the Commissioner of Police under the Government Information (Public Access) Act 2009 (the GIPA Act). As explained below, the decision under review in these proceedings is the respondent's decision dated 1 March 2021, following remittal of the matter to the respondent for further consideration under s 65(1) of the ADR Act. 2. Dr Bradford's access application on 3 September 2019 contained 20 points identifying information and documents that he believed existed and were held by the respondent in relation to 'Operation Mocha', an investigation into the importation and distribution of cocaine by a drug syndicate operating in Sydney in 2004/2005. 3. The respondent's decision of 30 October 2019 (the Original Decision) concluded that no information was held in relation to points 1 to 18 of the access application, and refused access to information responding to points 19 and 20 on the basis that the public interest consideration against disclosure referred to in cl 2(a) of the table in s 14 of the GIPA Act outweighed the public interest considerations in favour of disclosure. 4. Dr Bradford applied to the Information Commissioner for external review of the Original Decision. On 13 March 2020, the Information Commissioner recommended that the respondent reconsider its Original Decision by way of internal review. 5. The respondent made an internal review decision on 14 August 2020 (the Internal Review Decision). The Internal Review Decision again concluded that no information was held with respect to points 1 to 18. As to points 19 and 20, the internal review decision refused access on the ground that it was to be conclusively presumed that an overriding public interest against disclosure applied since the information was contained in documents created by the State Crime Command of the NSW Police Force (NSWPF) in the exercise of its functions concerning the collection, analysis or dissemination of intelligence and was therefore subject to the conclusive presumption in cl 7 of Sch 1 of the GIPA Act. The decision also relied upon the consideration against disclosure in cl 2(a) of the s 14 Table. 6. Dr Bradford again sought external review by the Information Commissioner, this time of the respondent's Internal Review Decision. 7. On 9 November 2020, the Information Commissioner concluded that the respondent's decision was justified with respect to points 19 and 20. As to points 17 and 18, the Information Commissioner was not satisfied that the respondent had conducted reasonable searches and recommended that the respondent reconsider its Internal Review Decision. The respondent elected to not follow that recommendation. 8. Accordingly, Dr Bradford commenced these proceedings on 25 November 2020 and a timetable to hearing was set at a case conference on 11 January 2021. At that case conference, it was confirmed that Dr Bradford's application related only to points 17, 18, 19 and 20 of his access application. 9. However, on 2 February 2021, the respondent's solicitor notified the Tribunal and Dr Bradford that, in the course of preparing for hearing, it became apparent that documents the subject of issues between the parties may not have been created by the State Crime Command of the NSWPF but that they may have been information relating to the investigative and/or reporting functions of the New South Wales Crime Commission (NSWCC) for the purposes of cl 2 of Sch 2 of the GIPA Act. As a consequence, the respondent requested that the matter be relisted for further directions. 10. On 16 February 2021, the Tribunal vacated the existing timetable and remitted the matter to the respondent for further consideration under s 65(1) of the ADR Act. 11. Correspondence between the Crown Solicitor and the NSWCC then ensued and the NSWCC confirmed that the documents identified as responding to the access application constitute "excluded information" under the relevant provisions of the GIPA Act. The NSWCC also advised that it did not consent to their disclosure to the applicant. 12. After reconsideration of the matter, the respondent decided pursuant to s 65(2)(b) of the ADR Act to vary its Internal Review Decision and issued its notice of decision dated 1 March 2021 (the Varied Decision). As to points 17 and 18, the respondent affirmed pursuant to s 58(1)(b) of the GIPA Act that it held no information. As to points 19 and 20, the respondent refused access to information pursuant to s 58(1)(d) of the GIPA Act on the basis that the information was subject to the conclusive presumption that there is an overriding public interest against disclosure under s 14(1), cl 6 of Sch 1 and cl 2 of Sch 2 of the GIPA Act. 13. In the process of considering the remitted decision, the respondent located additional information which responded to point 1 of the access application. The respondent made a further decision under s 58(3) of the GIPA Act in relation to that additional information and decided to refuse access to it pursuant to s 58(1)(d) on the basis that the additional information was also subject to the same conclusive presumption of an overriding public interest against disclosure under s 14(1), cl 6 of Sch 1 and cl 2 of Sch 2 of the GIPA Act. 14. On 9 March 2021, Dr Bradford notified the Tribunal and the respondent that he wished to proceed with an administrative review of the respondent's Varied Decision. 15. In submissions filed on 13 May 2021, Dr Bradford sought to have the administrative review broadened in scope to also encompass points 8, 9, 10 and 12 of his access application. 16. The respondent asserted that the scope of the administrative review was limited to points 17 to 20 (as set out in the applicant's access application and confirmed in the case conference on 11 January 2021) and to the respondent's further decision with respect to point 1 of the access application. Material before the Tribunal 1. For the applicant: * The applicant's administrative review application dated 25 November 2020; * The applicant's statement of facts, issues and contentions together with two folders of documents filed on 13 May 2021. 1. For the respondent: * Submissions filed on 13 April 2021; * Affidavit of Matthew Smith, Senior Advisory Officer, Infolink Unit, NSW Police Force, together with 8 annexures marked "MS1", "MS2", "MS3", "MS4", "MS5", "MS6", "MS7" and "MS8", filed on 13 April 2021 (marked "Exhibit R1"); * Affidavit of Clare-Louise Langford, Senior Solicitor, Crown Solicitor for New South Wales, with 2 annexures marked "CL1" (containing a redacted Schedule of documents headed 'Operation Mocha') and "CL2", filed on 13 April 2021 (marked "Exhibit R2"); * Email correspondence on 8 March 2021 between Ms Langford and Mr Scott Webb, Internal Audit & Risk Manager, Governance Unit, NSW Crime Commission, filed on 31 May 2021 (marked "Exhibit R3"); * Submissions in reply filed on 31 May 2021. Oral evidence * Mr Smith gave oral evidence under cross-examination and in re-examination during the hearing. Oral submissions * Closing oral submissions were made by both parties during the hearing. Confidential material * On 13 April 2021, the respondent provided to the Tribunal on a confidential basis, eight witness statements and an affidavit from Ms Langford annexing an unredacted copy of the Schedule of Documents contained in Annexure CL1 identifying the 8 witness statements. The confidential material was read by the Tribunal Member and was not provided to the applicant or the public. It was marked for identification as "Exhibit CR1". * No evidence was taken, and no submissions were made, in relation to the confidential material during the hearing. There was, accordingly, no necessity to consider any issues by way of confidential session. The task for the Tribunal 1. Under s 63 of the ADR Act, the Tribunal's task is to make the correct and preferable decision as to whether access to the requested information should be given, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31]. 2. It is well established that, in considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the respondent but may have regard to any relevant material before the Tribunal at the time of its review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In this regard, in undertaking this review, the Tribunal had before it the submissions and evidence from both parties as well as the confidential material (Exhibit CR1) provided only to the Tribunal Member. Issues between the parties 1. The respondent set out in its reply submissions that there were four issues to consider and the applicant agreed with that general proposition, subject to the applicant's additional challenge about point 20 of the access application: 1. the scope of the proceedings; 2. the application of the conclusive presumption that there is an overriding public interest against disclosure of government information pursuant to the operation of s 14(1), cl 6 of Sch 1 and cl 2 of Sch 2 of the GIPA Act with respect to points 1 and 19; and 3. the reasonableness of the searches (noting that the respondent asserted that this was only in respect of points 17 and 18 whereas Dr Bradford argued that consideration of this issue should additionally encompass points 8, 9, 10, 12); and 4. the nature of the relief sought by the applicant. Applicant's additional challenge regarding point 20 1. Additionally, relevant to point 20, in his submissions filed on 13 May 2021, Dr Bradford challenged the respondent's decision to not provide the date and number of folios (or pages) of each of the documents listed in the Schedule of Documents attached to the respondent's Varied Decision. While this was not a matter raised by Dr Bradford until after the date of the respondent's Varied Decision, these reasons will also address that aspect. Legislative framework for access to government information 1. The primary applicable law to the matters which are the subject of these proceedings is contained in the GIPA Act and relevant case law. Tribunal's jurisdiction 1. The Tribunal's jurisdiction to conduct this review is derived from s 100 of the GIPA Act, s 9 of the ADR Act and s 28 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 2. The respondent's Varied Decision (that pursuant to s 58(1)(b) some information requested is not held and that, pursuant to s 58(1)(d) access to information is refused), is a decision which is reviewable by the Tribunal pursuant to s 80(d) and s 80(e) of the GIPA Act. Procedure for protecting the confidential information filed in these proceedings against disclosure 1. Section 107(1) of the GIPA Act sets out a procedure for ensuring that the Tribunal does not, in its reasons, disclose any information for which there is an overriding public interest against disclosure, as set out below: "107 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." Object of the GIPA Act 1. Interpretation of the GIPA Act is governed by s 3 of that Act which provides that the object of the legislation is to open government information to the public: 3 Object of Act (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— (a) authorising and encouraging the proactive public release of government information by agencies, and (b) 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. (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 reasonable cost, access to government information. Definitions of "government information", "government information held by agency" and "record" 1. Section 4 of the GIPA Act defines "government information" to mean "information contained in a record held by an agency". 2. The meaning of "government information held by an agency" is then set out in cl 12 of Sch 4 (Interpretative provisions) of the GIPA Act: Schedule 4—Interpretative provisions … 12 Government information held by agency (1) A reference in this Act to government information held by an agency is a reference to— (a) information contained in a record held by the agency, or (b) information contained in a record held by a private sector entity to which the agency has an immediate right of access, or (c) information contained in a record in the possession or custody of the State Records Authority (or that the Authority has in the custody or possession of some other person) to which the agency has an immediate right of access, other than a record that is withheld from public access under section 59 of the State Records Act 1998, or (d) information contained in a record that is in the possession, or under the control, of a person in his or her capacity as an officer or member of staff of the agency (including, in the case of a Minister, the personal staff of the Minister). (2) Information that would be regarded as government information held by an agency because the agency has access to a record that contains the information is not to be regarded as government information held by the agency if the public generally has access to the record (for example, because the record is available on the Internet). (3) Information contained in a record that genuinely forms part of the library material held by an agency is not government information held by the agency. (4) Information contained in a record held by the agency that is information that was unsolicited and is not relevant to the agency's business or functions is not government information held by the agency. 1. The meaning of "record" is set out in cl 10 of Sch 4 of the GIPA Act: 10 Meaning of "record" (1) In this Act— record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record. Presumption in favour of disclosure unless there is an overriding public interest against disclosure 1. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5 of the Act. Legally enforceable right to information unless there is an overriding public interest against disclosure 1. Under s 9 of the Act, a person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. Conclusive presumption of overriding public interest against disclosure 1. Section 14(1) of the GIPA Act provides that there is a conclusive presumption of an overriding public interest against disclosure of any of the government information described in Sch 1 of the Act. 14 Public interest considerations against disclosure 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. 1. In the present case, the respondent has relied upon the conclusive presumption in s 14(1) that the information requested in points 1, 19 and 20 of the access application is "excluded information" (pursuant to cl 6 of Sch 1) since it relates to the "investigative and reporting functions" of the NSWCC (as specified in cl 2 of Sch 2) of the GIPA Act. Those relevant provisions appear below. 2. Clause 6 of Sch 1 of the GIPA Act provides that: Schedule 1—Information for which there is conclusive presumption of overriding public interest against disclosure (Section 14) 6 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. 1. Clause 2 of Sch 2 of the GIPA Act specifies that information that relates to the "investigative and reporting functions" of the NSWCC is "excluded information" of that agency. As a result, it is to be conclusively presumed that there is an overriding public interest against disclosure of information that relates to the "investigative and reporting functions" of the NSWCC unless it consents to disclosure. 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 disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. … 2 Complaints handling and investigative information … The New South Wales Crime Commission—investigative and reporting functions. … 1. Section 43 of the GIPA Act (extracted below) states that an access application cannot be made to an agency for access to excluded information of the agency. As a result, an access application cannot be made to the NSWCC for access to information that relates to its investigative and reporting functions. 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. 1. The relevance of the application of s 43 of the GIPA Act becomes particularly apparent in this case, when considering the applicant's query as to whether the information is "of" the NSWPF or the NSWCC. I will address this aspect under Issue 2 in these reasons. Searches to be undertaken by an agency 1. Section 53 of the GIPA Act sets out the obligations of any agency to undertake such reasonable searches as may be necessary to find any of the information for which access has been requested, and to use the most efficient means reasonably available to the agency: s 53(2). The obligation to search for information held by an agency is limited to information held when the application was received: s 53(1). 53 Searches for information held by agency (1) The obligation of 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. (2) 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. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources. 1. In Walker v Roads and Maritime Services [2019] NSWCATAD 177 (Walker's case) the Tribunal set out at [87] the principles to be applied when considering the reasonableness of searches undertaken by an agency: "[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 Cmr 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 Cmr 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]." Decision to refuse to provide access because of an overriding public interest against disclosure 1. Section 58 of the GIPA Act sets out the range of decisions available to an agency when deciding access applications. Of particular reference to the present case is s 58(1)(d) which the respondent has relied upon in refusing to provide access to information sought under points 19 and 20 of the access application on the basis that there is an overriding public interest against disclosure: 58 How applications are decided (1) An agency decides an access application for government information by— (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. Requirement to provide reasons where access is refused because of an overriding public interest against disclosure 1. Where an agency refuses to provide access to information because there is an overriding public interest against disclosure it has statutory obligations to provide its reasons and findings of fact for those reasons. Section 61 of the GIPA Act is set out below: 61 Notice of decision to refuse to provide access Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following— (a) the agency's reasons for its decision, (b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based, (c) the general nature and the format of the records held by the agency that contain the information concerned. Requirements for notices given by agencies 1. Additionally, s 126 of the GIPA Act sets out the requirements that apply to any notice or notification that an agency is required to give under the Act: 126 Requirements for notices given by agencies (1)The following requirements apply to any notice or notification that an agency is required to give under this Act— (a) it must be in writing, (b) it must include the date of the decision or other action of the agency with which the notice or notification is concerned, (c) it must include a statement that gives details of any right of review provided by this Act in respect of any decision of the agency with which the notice or notification is concerned (including details of the period within which any such right of review must be exercised), (d) it must include the contact details of an officer of the agency to whom inquiries can be directed in connection with the decision or other action of the agency with which the notice or notification is concerned, (e) it must not disclose any information for which there is an overriding public interest against disclosure. An agency may, but is not obliged to, create a new record 1. An agency may, but is not obliged to, provide access to government information in response to an access application by making and providing access to a new record of that information, as set out in s 75 of the GIPA Act: 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following— (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency. The respondent has the burden of establishing that its decision is justified 1. Under s 105(1) of the GIPA Act, in an administrative review of a decision made by an agency, the burden of establishing that its decision is justified lies on the agency, in this case, the NSWPF. The respondent is obliged to justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52]. Powers of the Tribunal in determining an application for administrative review 1. Under s 63(3) of the ADR Act, the Tribunal may decide: 1. to affirm the administratively reviewable decision, or 2. to vary the administratively reviewable decision, or 3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or 4. 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. Other relevant legislation – Crime Commission Act 2012 (NSW) and Police Act 1990 (NSW) 1. The NSWCC was first established in 1986. Its principal functions are outlined in s 10(1) of the Crime Commission Act 2012 (NSW) (the CC Act): Division 2—Functions of Commission 10 Principal functions of Commission (1) The principal functions of the Commission are as follows— (a) to investigate matters relating to a relevant criminal activity or serious crime concern referred to the Commission by the Management Committee for investigation, (a1) to investigate matters relating to the criminal activities of criminal groups referred to the Commission by the Management Committee for investigation, (b) to assemble evidence that would be admissible in the prosecution of a person for a relevant offence arising out of any such matters and to furnish any such evidence to the Director of Public Prosecutions, (c) to furnish evidence obtained in the course of its investigations (being evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth or another State or Territory) to the Attorney General or to the appropriate authority in the jurisdiction concerned, (d) to reinvestigate matters relating to any criminal activity that were the subject of a police inquiry (being an inquiry referred for reinvestigation to the Commission by the Management Committee) and to furnish its findings to the Committee together with any recommendation as to action the Commission considers should be taken in relation to those findings, (e) to furnish in accordance with this Act reports relating to organised and other crime, which include, where appropriate, recommendations for changes in the laws of the State, (f) to provide investigatory, technological and analytical services to such persons or bodies as the Commission thinks fit, (g) with the approval of the Management Committee, to work in co-operation with such persons or authorities of the Commonwealth, the State or another State or Territory (including any task force and any member of a task force) as the Commission considers appropriate. 1. Separate from the NSWCC, the State Crime Command operates within the NSWPF and consists of specialist squads each representing a head of discipline for major crime types, for example, the Drug and Firearms Squad, the Criminal Groups Squad and the Organised Crime Squad. The functions of the NSWPF and the police services it provides are broadly described in s 6(2) and s 6(3) of the Police Act 1990 (NSW): 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions— (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section— police services includes— (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. Background and overview Context for the access application in connection with 'Operation Mocha' 1. Dr Bradford's access application helpfully provided some background information to give context to his request for documents in connection with 'Operation Mocha'. 2. The 'Operation Mocha' investigation was conducted by a joint task force (JTF) comprising the NSWCC and the NSWPF (in coordination with the Australian Federal Police). It embraced a shipment of cocaine that landed at Sydney Airport from South America on the same day that Schapelle Corby (Corby) passed through the airport before flying to Bali. 3. Dr Bradford's written submissions explain his interest in accessing 'Operation Mocha' documents including witness statements. He believes the witness statements contain snippets of information and anomalies that may assist in obtaining justice for Corby in connection with a proposition that she was an unfortunate victim coincident with the criminal activities of the drug syndicate under investigation by 'Operation Mocha'. Dr Bradford believes the JTF overlooked or failed to understand anomalies or irregularities in the witness statements and that those suspected anomalies will corroborate a theory that marijuana was placed in Corby's bag without her knowledge by corrupt baggage handlers involved in the consignment of cocaine from South America. 4. As explained in the access application, all of the syndicate participants have been identified except one who later became the informant whose real name is known to the NSWPF, and who is referred to as "Tom" (Tom). Approximately 20 men were arrested including Les Mara (Mara). One of the participants went by the name "Gary Macdonald" (the spelling of which is uncertain but was adopted by the applicant as "Macdonald") who acted as the courier for an importation from Buenos Aires, arriving into Australia on 8 October 2004. 5. Dr Bradford asserted that documents released under the Freedom of Information Act 1982 (Cth) (FOI Act) establish that Macdonald checked in two luggage items for his flight from Buenos Aires. One case contained 10 kg of cocaine. A description of the other case, including its contents, have not been publicly released. In court proceedings, Macdonald denied any knowledge that the cocaine was in his luggage. 6. In a documentary broadcast on channel 7 in March 2010 titled "Gangs of Oz – White Powder Wars" (https://www.dailymotion.com/video/x2ipxou) (the 2010 Documentary Broadcast), a former officer of the NSWPF, Detective Inspector Randall (DI Randall) was interviewed and stated that Mara received a case and handed it to Tom. DI Randall stated in the broadcast that just prior to Mara collecting the case, Tom saw a "red Holden Commodore". Dr Bradford asserted that this contradicted documents released under the FOI Act which reveal that, at about the same time, Mara collected the case from a disused railway yard, and, upon giving it to Tom, stated that the case felt heavier than ten kilograms of cocaine. Any contradiction concerning those two asserted facts is neither clear nor relevant to my consideration of the issues between the parties for the purpose of this review. Documents requested in the access application 1. The 20 numbered points in Dr Bradford's access application were arranged under headings in relation to Macdonald, Mara and Tom. The points relevant to this Tribunal's review appear in bold print below. Those numbered points in issue between the parties as to the scope of matters to be reviewed by the Tribunal are in italics. Those numbered points which are not relevant in these proceedings have been deleted and are marked "[Not relevant]": "In relation to Macdonald: (1) Macdonald's witness statements. (2) [Not relevant] (3) [Not relevant] (4) [Not relevant] (5) [Not relevant] (6) [Not relevant] (7) [Not relevant] (8) Documents (including photographs, if they exist), detailing the description, colour, weight & dimensions of case 2. (Some of these details might exist in his witness statements). (9) Documents detailing Macdonald's activities between 6 October 2004 in Buenos Aires and upon leaving Brisbane international airport on 8 October 2004, including the luggage items he exited the airport system with. (These details might exist in his witness statements). (10) Details and description of Macdonald's carry-on luggage items. (11) [Not relevant] (12) All communications with, and documents provided by, any airline in connection with Operation Mocha investigations. (Specifically seeking weights of case 1 or case 2 or both if grouped together.) (13) [Not relevant] (14) [Not relevant] In relation to Mara: (15) [Not relevant] (16) [Not Relevant] (17) The document(s) Det Insp Randall relied upon to say a red Holden Commodore existed at that moment. (18) Documents detailing the events when Mara gave the case to Tom, including the colour of the case. In relation to the informant Tom: (19) All witness statements provided by Tom. (20) In lieu of any of his witness statements being fully exempt from disclosure, then: * the wording and context of anything Tom stated was red in colour; * the number of witness statements by Tom in possession of the NSW Police (and the total number of folios); and * the date of each statement." The respondent's Original Decision Points 1 to 18 1. The respondent's Original Decision found that no information was located in response to points 1 to 18 of the access application, a decision made pursuant to s 58(1)(b) of the GIPA Act. Points 19 and 20 1. Information that responded to points 19 and 20 (statements of Tom) was not released on the grounds that there was an overriding public interest against disclosure under 2(a) of the Table in s 14 of the GIPA Act (i.e., that disclosure could reasonably be expected to reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant). External review by the Information Commissioner of the Original Decision 1. Dr Bradford asked the Information Commissioner to undertake an external review. 2. The Information Commissioner was not satisfied that NSWPF had conducted sufficient searches and recommended pursuant to s 93 of the Act that the respondent reconsider its decision. 3. I note that the recommendations of the Information Commissioner are neither binding nor reviewable. 4. Nonetheless, the respondent accepted the Information Commissioner's recommendation and dealt with the matter by way of internal review. The respondent's Internal Review Decision Points 1 to 18 1. The respondent's Internal Review Decision found that no information was located with respect to points 1 to 18 and again made a decision to that effect pursuant to s 58(1)(b) of the GIPA Act. Points 19 and 20 1. Access to documents located in response to points 19 and 20 (statements of Tom), was again refused, but on different grounds. Access was refused pursuant to s 58(1)(d) of the GIPA Act, on the basis of cl 14(1) and cl 7(c) of Sch 1 of the Act. It was conclusively presumed that there was an overriding public interest against disclosure of the documents on the grounds they had been created by the State Crime Command of the NSWPF in its function as an intelligence gathering agency. The respondent also adopted the reasoning in the original decision which identified clause 2(a) of the s 14 table in the GIPA Act as the basis for its refusal. External review by the Information Commissioner of the Internal Review Decision 1. Dr Bradford asked the Information Commissioner to undertake a (second) external review, this time of the Internal Review Decision. 2. The Information Commissioner considered that the respondent had provided limited detail of its search efforts and therefore was not satisfied that the respondent had discharged its onus under s 53 of the GIPA to demonstrate that the searches were reasonable with respect to points 17 and 18. 3. The respondent elected not to accept the Information Commissioner's recommendation. Application for administrative review 1. Dr Bradford then filed his application for administrative review on 25 November 2020 and a timetable to hearing was set at the first case conference on 11 January 2021. 2. On 2 February 2021, the Crown Solicitor acting for the respondent notified the Tribunal and the applicant that in the course of preparing for hearing it had become apparent that the decision under review may have been made on an erroneous basis. It appeared that the documents may not have been created by the State Crime Command in the exercise of its functions concerning the collection, analysis or dissemination of intelligence (for the purposes of cl 7 of Sch 1 of the GIPA Act) but that they may be information relating to the investigative and/or reporting functions of the NSWCC (for the purposes of 2 of Sch 2 of the GIPA Act). Internal Review Decision remitted to the respondent for reconsideration 1. Following this development, the matter was relisted for further directions and, on 16 February 2021, the Tribunal remitted the matter to the respondent for further consideration under s 65 of the ADR Act. Respondent's reconsideration and enquiry of the NSWCC 1. In reconsidering the matter, the respondent conducted further searches and found two statements of Gary McDonald, responsive to point 1. Those statements had not been located during previous searches undertaken for the respondent's Original Decision and Internal Review Decision. 2. In its Varied Decision, the respondent stated that the witness statements of Gary McDonald (responsive to point 1) and of Tom (responsive to point 19) had been prepared as part of 'Operation Mocha', an investigation conducted jointly by the NSWCC and the NSWPF, and that the information was related to the "investigative and reporting functions" of the NSWCC as specified in cl 2 of Sch 2 of the GIPA Act. On that basis, the respondent found the information to be "excluded information". 3. Before it could decide to refuse access to information on the basis that the information is excluded information of the NSWCC, the respondent was required to ask the NSWCC whether it consented to disclosure of the information to the applicant: cl 6(2) of Sch 1 of the GIPA Act. 4. Accordingly, the Crown Solicitor (on behalf of the respondent) corresponded with the NSWCC on 22 February 2021 about the access application and enclosed a Schedule which the Crown Solicitor had been instructed was prepared in connection with 'Operation Mocha'. That Schedule document identified six witness statements by Tom and two witness statements by Gary McDonald. 5. In correspondence dated 24 February 2021, the NSWCC advised the Crown Solicitor that the statements that had been located related to the investigative functions of the NSWCC and therefore constitute "excluded information" under the GIPA Act. The NSWCC did not consent to their disclosure. Upon receiving this response, the respondent finalised its Varied Decision. Respondent's Varied Decision Points 17 and 18 1. The respondent's Varied Decision advised, in relation to points 17 and 18 of the access application and pursuant to s 58(1)(b), that no information is held. Points 19 and 20 1. Point 19 sought access to witness statements of Tom. In the event that statements by Tom were "exempt from disclosure" (the wording used in the access application), point 20 sought access to the wording or context of anything that Tom said was red in colour. Point 20 also sought access to the details of the dates of statements and page numbers. The respondent's Varied Decision advised that, with respect to points 19 and 20 of the access application, access to information was refused pursuant to s 58(1)(d) on the basis that it was "excluded information" under s 14(1), cl 6 of Sch 1 and cl 2 of Sch 2 of the GIPA Act. Additional information found in response to point 1 1. Under s 58(3) of the GIPA Act, if an agency finds additional information after deciding an access application, it can make a further decision that replaces or supplements the original decision (but cannot be required to make a further decision in such a case). In the present case, the NSWPF decided to make a further decision as a supplementary matter with respect to the documents sensitive to point 1. The Varied Decision advised that, with respect to point 1 of the access application, access to information was also refused pursuant to s 58(1)(d) on the basis that it was "excluded information" under s 14(1), cl 6 of Sch 1 and cl 2 of Sch 2 of the GIPA Act. Consideration Issue 1: Scope of the administrative review 1. The administrative review application confined the scope of the review to points 17, 18, 19 and 20 of the access application. At the case conference on 11 January 2021, Dr Bradford confirmed that the scope of the review related to those four points only. The respondent's Varied Decision issued on 1 March 2021 also encompassed its decision in relation to point 1 of the access application. In reply submissions filed on behalf of the respondent on 31 May 2021, it was confirmed that the respondent did not oppose the inclusion of its decision on point 1 being included in the Tribunal's review. This meant that, in at least the respondent's submission, the administrative review concerned points 1, 17, 18, 19 and 20 only. 2. However, in submissions filed on 13 May 2021, Dr Bradford sought to have the administrative review broadened beyond points 17, 18, 19 and 20. 3. He argued that since two statements of Gary McDonald were located as a result of the respondent's further searches, then those same documents could also be responsive to points 8, 9 and 10 of his access application. 4. Additionally, Dr Bradford sought to expand the scope of the administrative review to encompass an argument that the respondent's searches for information in response to point 12 were inadequate and/or unreasonable since, in his submission, there was evidence that the information he sought should exist. The applicant's arguments 1. Dr Bradford's key argument was that his submissions filed on 13 May 2021 provided the first opportunity for him to address the respondent's discovery of documents responsive to point 1 of his access application and seek to expand the scope of his application for administrative review. The respondent's arguments 1. The respondent argued that it was not appropriate to expand the scope of the review beyond the points specified in the administrative review application, particularly since Dr Bradford had been on notice of the further documents responsive to point 1 since 1 March 2021. 2. Additionally, the respondent contended that, had Dr Bradford sought the Tribunal's external review of points 8, 9, 10 and 12, the respondent would have reconsidered its decision as part of the remittal to it under s 65 of the ADR Act. This contention is not without some difficulty since, at the time when Dr Bradford filed his administrative review application (25 November 2020), at the time of the case conference (11 January 2021) and at the time of remittal (16 February 2021), neither party knew that further documents sensitive to point 1 would be located. It appears that the location of Gary Mcdonald's witness statements triggered a renewed curiosity in the applicant, at least with respect to points 8, 9 and 10. 3. The respondent also argued that expanding the scope of the administrative review in the manner sought by the applicant would not be consistent with the guiding principle in s 36 of the NCAT Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Analysis of Issue 1 1. At the time of the case conference on 11 January 2021, Dr Bradford's confirmation of the scope of the administrative review was made without having the benefit of the respondent's Varied Decision and without having knowledge that information had been located responsive to point 1. 2. At the time when Dr Bradford confirmed his intention to proceed with the administrative review (9 March 2021), the respondent's Varied Decision had been available to him for around 8-9 days. At that juncture, or at the very least when the Tribunal made orders for the further conduct of the proceedings on 16 March 2021, the applicant could have indicated to the respondent and the Tribunal that he sought to expand the scope of the administrative review in light of the documents found to have been responsive to point 1. Given the repeated concerns expressed during the history in the matter over the adequacy of searches undertaken, it might not have been unexpected for Dr Bradford to raise additional concerns once he learned that, after further searching, documents sensitive to point 1 had been located. However, Dr Bradford did not raise any concerns at the junctures identified above. 3. Upon being notified (on 9 March 2021) that Dr Bradford wished to proceed with the administrative review, the respondent set about preparing its evidence and submissions for the hearing on the basis that: 1. points 17 to 20 were specified as the grounds for the application (and had been confirmed by the applicant at the case conference on 11 January 2021); 2. Dr Bradford's notification on 9 March 2021 that he wished to continue with his application did not indicate that he might seek to expand the scope of the application; 3. the Tribunal made further orders on 16 March 2021 for the conduct of the proceedings at which point the applicant did not foreshadow any intention to seek to expand the scope of the application. 1. The respondent's affidavit evidence of Mr Smith and Ms Langford was prepared and filed on 13 April 2021, addressing the issues confirmed to be in contention between the parties (points 17, 18, 19 and 20) as well as the respondent's decision on information sensitive to point 1, and no other points. 2. The respondent's submissions were also filed on 13 April 2021 in reliance upon the issues it understood were to be argued before the Tribunal. 3. The applicant's submissions filed on 13 May 2021 sought, somewhat informally, to expand the scope of issues in contention, one month after the respondent had already prepared and filed its evidence. At that point in time, the respondent was placed in a potentially disadvantageous position of not having sufficient time to prepare its case with respect to the additional issues raised. 4. With respect to Dr Bradford's argument that pursuing access to documents outside the scope of his application should not change the respondent's position in the matter and simply required additional searches to be undertaken, I refer to the provisions in s 36(1) of the NCAT Act. The resolution of issues between the parties is to be facilitated in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter in the proceedings. 5. For the reasons already given concerning the case conference on 11 January 2021, I have not placed weight on the respondent's argument that the applicant confirmed at that juncture that the grounds for the administrative review were limited to points 17 to 20. 6. However, Dr Bradford had sufficient opportunity to raise any further concerns after receiving the Varied Decision on 1 March 2021 and up to the time of the Tribunal's further orders on 16 March 2021. 7. I accept the respondent's submissions that it was not appropriate for it to address the challenge to its Internal Review Decision on points 8, 9, 10 and 12 by way of reply to the applicant's submissions, bearing in mind that when the matter had been remitted to the respondent for further consideration under s 65 of the ADR Act, the only points in contention were 17, 18, 19 and 20. Findings on Issue 1 1. In my view, it would be procedurally unfair to the respondent to allow the scope of the administrative review to include the additional points raised in the applicant's submissions. 2. Accordingly, this review is confined to points 1, 17, 18, 19 and 20 of the access application. Issue 2: Application of the conclusive presumption under s 14(1), cl 6 of Sch 1 and cl 2 of Sch 2 of the GIPA Act Arguments and analysis 1. In order to justify its reliance upon the conclusive presumption that the information in issue is excluded information pursuant s 14(1), cl 6 of Sch 1 and cl 2 of Sch 2 of the GIPA Act, the information must relate to the investigative and reporting function of the NSWCC. 2. The conclusive presumption that is engaged by the operation of cl 2 of Sch 2 of the GIPA Act is straightforward. If it is established to the satisfaction of the Tribunal that the information in issue relates to the investigative and reporting function of the NSWCC, the conclusive presumption is decisive of the matter. 3. It is to be distinguished from the conclusive presumption that is engaged by the operation of cl 7 of Sch 1 of the GIPA Act that requires two elements to be satisfied (firstly, the information must be in documents created by the State Crime Command and, secondly, they must relate to that area's functions within the NSWPF with respect to the collection, analysis or dissemination of intelligence). 4. Mr Smith's affidavit evidence (in particular, paragraphs 10, 11 and 12) sets out his reasoning for initially forming the view (as it turned out, incorrectly) that the documents had been created by the State Crime Command in the execution of its intelligence functions and in connection with Operation Mocha. 5. As was subsequently explained by Detective Inspector Dipple (DI Dipple) to Mr Smith, the relevant team within the NSWPF involved in Operation Mocha (along with the AFP and the NSWCC) was in fact the Internal Affairs Command (and not the State Crime Command). Whilst it is not clear to me as to why this information was not made known earlier to Mr Smith, I find his explanation as to why he formed the impression at the time when he was deciding the Internal Review that the documents were created by the State Crime Command, to be reasonable. I also note Mr Smith's oral evidence in cross-examination that the State Crime Command as it is now, did not exist when Operation Mocha was in effect. 6. Ms Langford's open affidavit evidence (Exhibit R2) attached a letter dated 24 February 2021 from an officer of the NSWCC advising that: "[T]he Commission's Executive Director Criminal Investigations, Tim O'Connor has confirmed that all of the documents listed in the schedule to your letter relate to the investigative functions of the NSWCC and therefore constitute 'excluded information' under the relevant provisions of the GIPA Act. On that basis, the Commission does not consent to the disclosure of these documents to the applicant." 1. Earlier in these reasons, I noted the application of s 43 of the GIPA Act to the facts of this case, in particular with respect to Dr Bradford's query about whether the statements are of the NSWPF or the NSWCC. In short, if Dr Bradford had applied to the NSWCC, the application would not have been valid and would have failed at the first threshold. What is important to appreciate here is that it is irrelevant whether the NSWPF holds information responsive to the request that is "excluded information" of the NSWCC. As has already been addressed, cl 6(2) of Sch 1 of the GIPA Act required the NSWPF to ask the NSWCC whether it consented to disclosure, and it did not consent. I also note that under cl 6(3) of Sch 1 of the GIPA Act, the decision of the NSWCC to refuse to consent to the disclosure of its excluded information is not a reviewable decision under Part 5 of the GIPA Act. 2. Dr Bradford challenged the wording in the NSWCC's letter on the grounds that it only referred to the investigative functions of the NSWCC and did not include a reference to the reporting functions, noting that the wording in cl 2 of Sch 2 of the GIPA Act with respect to the NSWCC states "investigative and [my emphasis] reporting functions". 3. The respondent argued that the "principal functions" of the NSWCC as set out in s 10(1) of the CC Act include functions that may properly be described as "investigative" functions and others that may be described as "reporting" functions. The "investigative" functions appear to be those set out in s 10(1)(a), (a1), (b), (c), (d), and (f) of the CC Act. The "reporting" functions are addressed in s 10(1)(e) of the CC Act. Arguably, the wording in s 10(1)(g) with respect to working "in co-operation with such persons or authorities … as the Commission considers appropriate" could encompass both an investigative and reporting function, but in my view, that is not a matter of consequence to be considered. 4. Dr Bradford contended that the Tribunal should have regard to the ordinary Australian English meanings of words and that it was open to the Tribunal to find the appropriate meaning and interpretation where words are not defined. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 (Project Blue Sky Inc case) the High Court of Australia said at [78] that, ordinarily, the legal meaning will correspond with the grammatical meaning of the provision. The primary object of statutory construction was described as one of construing the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: "However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." 1. I do not think it is necessary to delve more deeply into submissions as to the grammatical meanings of the words "investigate" and "report" which are not defined within the statutory context of the GIPA Act. I also do not consider that the definition of "function" in s 4(1) of the CC Act has any bearing on the words "investigate" and "report" which can be plainly understood in light of the context and purpose of the provision in which they appear in the GIPA Act. 2. It is not in dispute that Operation Mocha was an investigation of the NSWCC. The witness statements responding to points 1 and 19 of the access application relate to Operation Mocha. I agree with the respondent's submission that the function of gathering and preparing evidence such as witness statements as part of an investigation must fall within the meaning of "investigative" functions. The absence of a reference to the "reporting" function in the NSWCC's letter of 24 February 2021 does not, in my view, diminish the effect of the letter as providing evidence that the documents in issue constitute "excluded information". 3. Dr Bradford noted, relying upon the view expressed by the Information Commissioner, that the phrases "conclusive presumption" and "conclusively presumed" as used in the GIPA Act have not been considered in caselaw. He referred to the grammatical meaning of "conclusive" in its adjectival usage as being "decisive" or "convincing" (Australian Concise Oxford Dictionary, 4th Ed, 2004); "serving to settle or decide a question" (Macquarie Dictionary, 7th Ed, 2017) or "putting an end to doubt"; "final" (The Collins Paperback English Dictionary, 1986). Likewise, Dr Bradford considered various dictionary meanings of "presumption" and concluded that the phrases "conclusive presumption" or "conclusively presumed" had in essence the same meaning. He postulated their meaning to be: "an inference from known facts that decisively and convincingly settles a question". I take no objection to Dr Bradford's interpretation or conclusion he reached on this point. 4. Consistent with the reasoning in the Project Blue Sky Inc case, it appears to me that the legal meaning of the phrase "conclusive presumption" corresponds with the grammatical meaning of the phrase, and no inconsistency or rival provision in the GIPA Act calls for reconciliation with the phrase in order to achieve consistency. In this case, where the evidence establishes that the information relates to the investigative and reporting functions of the NSWCC, it is to be conclusively presumed that there is an overriding public interest against disclosure of information which is "excluded information". 5. Further, there is no conflict or inconsistency between the conclusive presumption provision in s 14(1) of the GIPA Act and the public interest balancing test in s 13 of the Act. In Lipscombe v Blue Mountains City Council [2020] NSWCATAD 121 at [11], Senior Member Montgomery explained that: "Unlike information for which public interest considerations against disclosure are claimed, material for which a conclusive presumption is maintained is not assessed or weighted for consideration of release, but rather assessed as to whether it meets the definition of the conclusive presumption descriptor. If such information is assessed as meeting that description then no further assessment or weighting occurs and the material is withheld at that point." 1. The Information Commissioner succinctly articulated the position in her external review dated 9 November 2020: "Where information is found to have a conclusive presumption of overriding public interest against disclosure, because it falls within one of the clauses of Sch 1, then, in accordance with the GIPA Act, access to the information is prohibited and it is not necessary [to] conduct the public interest test by balancing factors in favour and against disclosure." 1. In effect, the conclusive presumption is decisive on the issue as to whether there is an overriding public interest against disclosure and there is no need to conduct the public interest balancing test by weighing factors in favour of and against disclosure. 2. Dr Bradford's submissions that correcting a miscarriage of justice should not be overridden by the concept of a conclusive presumption against disclosure demonstrate his ardent belief in seeking justice for Corby as a matter of public interest. I applaud Dr Bradford for his methodical research over a number of years, however arguments on moral grounds and the public interest balancing test are not relevant to deciding this matter. As submitted by the respondent (in my view, correctly), there is no basis in the GIPA Act for excluding, from the concept of "excluded information", information that could be used to overturn a conviction or that is similar to information already in the public domain. A finding that there is a conclusive presumption of an overriding public interest against disclosure of the information sought, is decisive of the issue. This is, in my mind, consistent with Dr Bradford's own interpretation and conclusion noted earlier. 3. Dr Bradford submitted that the functions of the NSWCC as set out in s 10(1) of the CC Act, and in particular the investigative functions, apply to current or future investigations and not to historic or closed investigations such as Operation Mocha. 4. I agree with the respondent's submissions that there is no basis for reading down the words in cl 2 of Sch 2 of the GIPA Act, to exclude investigations that are historic or closed, or make an exception if documents at issue contain information that is perhaps less sensitive than others, or if information does not reveal an investigative function. 5. There is nothing in the wording of cl 2 of Sch 2 to indicate that the "investigative and reporting functions" must relate to a current or future investigation. By way of comparison, where it is intended to confine an issue to current or future circumstances, the wording of the statute in clause 3(c) of the Table in s 14 uses specific language to address that requirement: "Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: … … (c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings." [Tribunal's emphasis] 1. Generally speaking, legislation is expressed in the infinitive unless Parliament intended otherwise. Accordingly, there is no basis for reading down the words in s 10(1) of the CC Act or cl 2 of Sch 2 of the GIPA Act to interpret them as only relating to current or pending investigations. 2. I also agree with the respondent's submissions that "excluded information" is information that Parliament has determined, as a category, ought not be made subject to the open access regime, to access applications, or the public interest balancing test. The types of factors identified by Dr Bradford would require very finely nuanced distinctions to be drawn in order to weigh public interest considerations. The legislation as drafted in cl 2 of Sch 2 of the GIPA Act, specified with respect to each agency and its particular functions, that information pertaining to those functions is "excluded information" and that, under Sch 1, it is to be "conclusively presumed that there is an overriding public interest against disclosure (unless the agency, consents to disclosure)". As such, it is plain that the "excluded information" would not be subject to the public interest balancing test. 3. For completeness, I say the applicant's argument that documents in relation to Operation Mocha have been released to him from Commonwealth agencies has no bearing on the application of the conclusive presumption with respect to information that is "excluded information" of an agency under the GIPA Act. Findings on Issue 2 1. I accept that the documents responding to points 1 and 19 comprise information relating to the investigative and reporting functions of the NSWCC and were not documents created by the State Crime Command. 2. On the material and evidence before me, I am satisfied that the conclusive presumption applies to the information to which access has been refused, as it relates to the investigative and reporting functions of the NSWCC, pursuant to cl 14(1), cl 2 of Sch 2 and cl 6 of Sch 1 of the GIPA Act. Issue 3: Reasonableness of the respondent's searches Evidence and submissions before the Tribunal 1. The background information set out in the access application posited the context for Dr Bradford's requests. He expressed gratitude for the efforts made by the respondent to search for documents, however, Dr Bradford submitted that the searches had not been adequate. He relied upon his knowledge of the NSWPF's involvement in the investigation of a drug trafficking syndicate and his research of publicly available information concerning 'Operation Mocha' as well as information obtained from Commonwealth agencies, to assert that the information requested in his access application does exist and is information of the NSWPF. 2. In this review, the question as to whether the respondent has discharged its obligation under s 53(2) to undertake such reasonable searches as may be necessary, using the most efficient means reasonably available to it, is confined to the matters specified in the administrative review application and point 1. In essence, then, the adequacy of the search effort to be considered is confined to points 17 and 18. 3. Dr Bradford challenged the reasonableness of the searches on the basis that they were centred around searching for information on the e@gle.i system, rather than on the NSWPF Core Operational Policing System (COPS) database. 4. Additionally, Dr Bradford challenged the reasonableness of the searches in relation to point 17 on the basis that DI Randall was not contacted by the respondent about statements he made in the 2010 Documentary Broadcast about a red Holden Commodore. Documents requested under point 17 of the access application 1. In point 17, Dr Bradford asked for access to: "The document(s) Det Insp Randall relied upon to say a red Holden Commodore existed at that moment". 1. As noted above, Dr Bradford contended that the respondent should make contact with DI Randall who in the 2010 Documentary Broadcast referred to a red Holden Commodore. The respondent advised Dr Bradford by email on 19 November 2020 that DI Randall was no longer employed by the NSWPF which precluded asking him directly about information sought under point 17. 2. The respondent submitted that seeking the assistance of DI Randall would not have been a reasonable or efficient step for the purposes of s 53 of the GIPA Act. Adopting that approach would involve interrogating a former employee about the meaning of, or basis for, statements made in the documentary broadcast more than a decade ago. Further, the respondent submitted that Dr Bradford's apparent purpose in seeking information from DI Randall went beyond the purpose of identifying where records related to Operation Mocha might be held. Documents requested under point 18 of the access application 1. In point 18, Dr Bradford asked for access to: "Documents detailing the events when Mara gave the case to Tom, including the colour of the case." 1. Dr Bradford submitted that it was "unacceptable that the NSWPF claims that applicable documents do not exist", although (as pointed out by the respondent), he did not identify any particular failing in relation to the searches conducted for point 18. Dr Bradford's only complaint is that information that he expected to be in the records, was not located. NSWPF's record keeping systems 1. In his affidavit, Mr Smith detailed the various systems which hold the records of the NSWPF. They include the NSWPF Core Operational Policing System (COPS); the e@gle.i system; the Records Management System used to store administrative documents; hard copy files and paper-based records; the Exhibits and Forensic Information Miscellaneous Property System ("EEFIMS") used as an electronic log of exhibits captured during an investigation; and the View Imagery Management System used to capture video material. 2. I understand, from the evidence of Mr Smith and information set out in the Varied Decision, that since 'Operation Mocha' was a joint taskforce between NSWPF and other agencies including the NSWCC (but not the State Crime Command), any documents which would respond to the access application would be held on the e@gle.i system. Nonetheless, I note that searches were in fact also conducted on COPS. The e@gle.i system 1. The e@gle.i system was described by Mr Smith as an electronic database used by NSWPF detectives to organise and allocate tasks involved in an investigation. It allows for the storage of text, photographs, audio files and video files which are stored on a central server and retrievable from any location within the State by authorised users. Mr Smith's oral evidence assisted the Tribunal in better understanding how the e@gle.i system works. 2. His evidence was that it is not possible to conduct a comprehensive keyword search for individual names or keywords on e@gle.i as one might expect to search with other types of databases. Based on the evidence before me, my rudimentary understanding of the system and its searching capability is as follows. Because of how the system is organised, with material relevant to an investigation recorded in the system as 'product', it is necessary to browse "investigations" and then browse the 'products' created with respect to each investigation. This process can be supplemented by keyword searches, but is limited to the searchable text appearing in the system such as document titles or text added directly into a free text field in the 'product' creation screen. Joint Agency Agreement provision for storing information on 'Operation Mocha' 1. Dr Bradford referred the Tribunal to a document titled "Joint Agency Agreement between the Australian Federal Police, the NSW Police and the NSW Crime Commission for the conduct of Operation Rhodium" (the operational name used by the AFP in the investigation of a possible importation of cocaine into Australia). Whilst noting that the version of the Joint Agency Agreement provided to the Tribunal may not be final, is unsigned and is undated, the document provided that the computer systems to be used during the investigation were: * [the] NSWCC database for the collection and management of intelligence and evidence; * PROMIS for management of investigation, evidence collection and communication with the AFP international liaison network; * NSWPol COPS database where appropriate. 1. Three things are immediately apparent from the provision in the Joint Agency Agreement about how information relevant to the investigation was to be managed. First, the NSWCC (and not the State Crime Command) was the agency involved in the investigation alongside the NSWPF and the AFP. Second, whilst not specifically named, the reference to the NSWCC database in all likelihood was a reference to the e@gle.i system. The PROMIS system, on the other hand, was the system used by the AFP. Third, information was to be stored by the NSWPF on COPS only "where appropriate". On that basis, I accept that the e@gle.i system was considered to be the primary system used by the NSWCC for capturing any documents relevant to 'Operation Mocha', and not COPS. I also see no conflict between the Joint Agency Agreement provisions and paragraphs 38 and 41 of Mr Smith's affidavit. Searches undertaken for the respondent's Original Decision, Internal Review Decision and Varied Decision 1. In these reasons, based on the evidence before me, I will first give a general overview of the searches undertaken and then consider the searches that were undertaken in relation to each of the respondent's decisions. General overview of searches undertaken 1. Mr Smith's evidence was that at least three rounds of searches were conducted in response to the access application. In each case, searches were conducted by or with the assistance of DI Dipple who had direct, first-hand knowledge of Operation Mocha and an "intimate understanding of the case, including the requisite knowledge to locate any captured documents" (paragraph 30 of Exhibit R1). Mr Smith's affidavit and oral evidence also confirmed that searches were conducted on COPS. His oral evidence was that he again searched on COPS on the day before the hearing in this matter and that those searches did not yield anything in relation to Mara or Gary McDonald. 2. Mr Smith was cross-examined on the number of hours afforded to the access application. He assessed that 20 hours had been spent, and that this was on the high side of time by a significant amount that would, on average, be spent on an application. 3. Under cross-examination, Mr Smith recalled that he had searched "MacDonald" (although I note that the spelling he used for the search was not questioned and was therefore not clarified in his testimony), "Tom", "Les Mara", "red commodore" and "luggage", as well as other key words that related to the access application. Mr Smith said that it was misleading to say that his searches only consisted of keyword searches, and that he had to read quite a lot of the 'product' itself to find what was relevant, to see if there was anything captured by the access application. He said that he had searched in relation to all the items in the access application. 4. Mr Smith acknowledged that he did not have a great deal of experience on the e@gle.i system compared to his experience on other databases. When questioned about whether the e@gle.i system was "user-friendly", Mr Smith answered that it was more a question of the nature of the system's searching capability having regard to how it is organised. For instance, Mr Smith said that the six statements of Tom were located on the first search using e@gle.i. Searches undertaken for the respondent's Original Decision 1. The respondent's Original Decision was made by an Information Review Officer in the Infolink Unit, which serves as a single point of contact for external parties to request information from the NSWPF. Searches were conducted in COPS using key words "Les Mara" and "Gary McDonald". Mr Smith's affidavit evidence was that a person's first and last name are required in order to search COPS for records relating to that person. Accordingly, a search on COPS for "Witness Tom" would not yield any search results. 2. Enquiries were also directed to the State Crime Command Drug & Firearms Squad, the Organised Crime Squad and Corporate Records & Logistics, to identify all government information falling within the scope of the access application. Additionally, since Dr Bradford had previously requested information relating to Operation Mocha, the records held by the Infolink Unit were also reviewed for the purposes of the access application. 3. Following a request made to the State Crime Command, DI Dipple searched the e@gle.i system by reviewing 'products' saved in the system. His search was undertaken by reading the 'product' description and opening the documentation attached to each 'product'. Searches undertaken for the respondent's Internal Review Decision 1. The respondent's Internal Review Decision was made by Mr Smith who made enquiries of DI Dipple and was subsequently granted access to the entirety of the file in relation to 'Operation Mocha' stored in the e@gle.i system. 2. In correspondence dated 19 November 2020, Mr Smith advised Dr Bradford that the NSWPF did not accept the Information Commissioner's recommendation regarding searches for documents responsive to points 17 and 18. Mr Smith said that he and DI Dipple had examined the brief of evidence and that, if documents existed in relation to points 17 and 18, they would be contained in the brief, but that they were not so contained. Mr Smith said that he could think of "no searches, electronic or otherwise which would likely uncover more information." He also advised that DI Randall was no longer serving in the NSWPF and that this precluded asking questions of him directly. Searches undertaken for the respondent's Varied Decision 1. The respondent's Varied Decision was also made by Mr Smith who, in consultation with DI Dipple, searched the e@gle.i system again. On that occasion, the searches returned statements responsive to items 1 and 19. 2. Since 'Operation Mocha' was a joint taskforce between NSWPF and other agencies including the NSWCC, Mr Smith's view was that any documents which would respond to the access application would be held on the e@gle.i system. In his view, this was the most efficient system to primarily search. Analysis of Issue 3 1. Section 53(2) of the GIPA Act requires an agency to undertake such reasonable searches as may be necessary, using the most efficient means reasonably available to it, to find information relevant to requests made in an access application, which is held at the time the agency received the application. 2. In Smith v Commissioner of Police [2012] NSWADT 85 (Smith's case), Judicial Member Isenberg said at [27]: "In making a decision as to the sufficiency of an agency's search for documents which an applicant claims to exist, there are two questions: (a) are there reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so, (b) have the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case." 1. When considering whether there are reasonable grounds to believe that information exists, the facts, circumstances and context of the application is relevant. With reference to Miriani v Commissioner of Police, NSW Police Force [2005] NSWADT 187 at [30], Judicial Member Isenberg noted at [34] the key factors when assessing whether sufficient searches have been undertaken: "These factors included, relevantly, 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 reasonably inferred by the agency from any other information supplied by the applicant. What constitutes a sufficient search will vary with the circumstances of each matter." 1. In MJ v Department of Education and Communities [2014] NSWCATAD 12 (MJ's case) at [28], Deputy President Higgins found that additional documents located subsequently does not mean that reasonable searches were not made initially. 2. In Walker's case, the Tribunal at [87] noted that the way an agency's system for keeping records is organised and the ability to retrieve documents relevant to the request is a key factor in assessing the sufficiency of a search. The Tribunal also considered that the fact that there may be weaknesses in an agency's searches does not necessarily lead to the conclusion that the searches were not reasonable, or sufficient or adequate: Camilleri's case at [15]. Applying the reasoning in the Walker and Camilleri cases, the fact that the e@gle.i system was not a system capable of being navigated by conducting a comprehensive keyword search, does not mean that the respondent's searches were not adequate. 3. The e@gle.i system has a higher level of security and is only available to officers involved in the task force, according to Mr Smith's evidence. It is not a system to which Mr Smith normally has access, which may offer an explanation as to why documents were not located when he first accessed the system, but were located when he accessed the system a second time and was possibly better-acquainted with it. It was not explained why DI Dipple's assistance with searches on the first and second attempts did not yield Gary McDonald's witness searches. It is possible that the spelling of "Macdonald" was used, as a direct reflection of how the word appeared in the access application, although I hasten to add that this possible scenario was not put before me in evidence. 4. Relying upon the reasoning in MJ's case, I do not consider that the respondent's initial searches were unreasonable or inadequate. In my view, it is reasonable to apprehend that, once Mr Smith had a clear understanding from DI Dipple that the NSWCC (and not the State Crime Commission) was the relevant party to the joint task force, and was more familiar with the searching capability of the e@gl.i system, his searches may have been more targeted, or used alternative spellings to search for information, and thus produced a response to point 1. Again, I hasten to add that these matters were not put before me in evidence. I simply postulate them as part of my reasoning. 5. I consider that it was reasonable and efficient for Mr Smith to involve DI Dipple in the search effort. DI Dipple had first-hand involvement and knowledge of Operation Mocha and in his opinion, e@gle.i was the relevant database to search for information in response to the access application. His advice that he could not think of any other repository that would hold information responsive to the request is consistent with Mr Smith's own knowledge of how NSWPF's records are stored. Mr Smith's evidence is that COPS is "used to capture, record and store operational information and intelligence by officers of the NSWPF" and I understood that this comment implied a more general context as opposed to the e@gle.i system which is arranged with respect to specific investigations. 6. With respect to point 17, the legislation does not assist Dr Bradford's application on his point concerning DI Randall. As noted previously, for the purposes of the definition of "record", the knowledge of a person is not a "record": cl 10 of Sch 4 of the GIPA Act. The respondent's submissions pointed out that knowledge in the mind of an employee (a fortiori, a former employee) is not "government information" within the scope of the GIPA Act and there can be no dispute on that point that this is the correct position to take. 7. While I can understand Dr Bradford's frustration with respect to point 18, the only matter relevant to consider is whether the respondent has met its obligations under s 53(2) of the GIPA Act and undertaken reasonable searches by using the most efficient means reasonably available to it. Finding on Issue 3 1. Having regard to the decisions in Walker's case and MJ's case, and applying Judicial Member Isenberg's test in Smith's case for assessing the sufficiency of an agency's search for documents, I am satisfied that, in the circumstances of this case, the respondent has undertaken reasonable searches using the most efficient means reasonably available to it, and that the respondent met its obligations under s 53(2) of the GIPA Act. Additional issue re point 20 of the access application 1. I now propose to deal with point 20 which asked for specific searches to be done in lieu of Tom's witness statements being withheld, and that exercise calls for consideration of different arguments. Dr Bradford disputed the respondent's refusal to provide the date and the number of pages of each of the documents identified in documents numbered 3 to 8 (being statements of Tom) in the Schedule of Documents attached to the Varied Decision. He submitted that it is unreasonable for those details to not be provided. As already discussed in these reasons, the respondent's reliance upon there being a conclusive presumption against disclosure of information that is "excluded information" has been found to be justified, and that includes the information sought in point 20. 2. There are however, other matters to be noted concerning how the GIPA Act is used to access documents and information compiled in written form or by electronic process, as opposed to being a process for providing answers to questions. As previously noted, the GIPA Act enables members of the public to access government information defined as "information contained in a record held" by an agency. "Record" is itself defined in clause 10 of Sch 4 as "any document or other source of information compiled, recorded or stored in written form or by electronic process." 3. In Davison v NSW Department of Education and Training [2013] NSWADT 25 (Davison's case) the applicant's request was about the legal authority for an agency's decisions. Deputy President Higgins explained at [24] that the GIPA Act is not a vehicle for seeking explanations of administrative decisions of a government agency. The GIPA Act is not a vehicle for seeking answers to questions. Rather, it is a vehicle for seeking "records" that respond to an access application. 4. Further, under s 75(2)(c) of the GIPA Act, the respondent is not obliged to create new information or produce a new record of information from information held by the agency. In any event, it is noteworthy that the NSWCC was asked whether it was amenable to providing those details, and confirmed that the details sought was information that was "excluded information". Findings on the additional issue regarding point 20 of the access application 1. Applying the principle in Davison's case, Dr Bradford's request for "the wording and context of anything Tom stated was red in colour" is not a request for a record. Likewise, providing the dates and number of pages in each statement of Tom is not a request for a record. 2. Accordingly, the relief sought by these requests is not available under s 63(3) of the ADR Act and is referenced in more detail under Issue 4 below. Issue 4: Nature of relief sought by the applicant 1. With respect to points 1 and 19, Dr Bradford asked the Tribunal, pursuant to its power in s 63(3)(c) of the ADR Act, to set aside the respondent's decision under s 58(1)(d) of the GIPA Act to refuse access to information responsive to those points and to make, in substitution, a decision under s 58(1)(a) of the GIPA Act, to grant access to the information withheld. 2. With respect to points 17 and 18, Dr Bradford asked the Tribunal, pursuant to its power in s 63(3)(d) of the ADR Act, to set aside the respondent's decision under s 58(1)(b) of the GIPA Act that it did not hold information responsive to those points and to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal (in essence, to direct the respondent to conduct further searches, including on COPS). 3. Additionally, Dr Bradford asked the Tribunal to order the following: 1. with respect to point 20, to require the respondent to review the witness statements of Gary McDonald and, if they contain the information sought, to then update the Schedule of Documents to reflect such a finding; 2. with respect to point 17, to require the respondent to make contact with DI Randall requiring him to: 1. provide a statement that explains this usage of the phrase "a red Holden Commodore"; 2. advise where he obtained that information; and 3. qualify if he meant to say "red Apollo suitcase" but mistakenly said "red Holden commodore"; 1. to require the respondent to update the Schedule of Documents to disclose the dates and folio numbers of each document listed. 1. The additional relief sought by the applicant is not available under s 63(3) of the ADR Act, as correctly pointed out by the respondent. 2. Sections 61 and 126 of the GIPA Act set out the matters required to be dealt with in an agency's notice of decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information. In particular, s 61(c) of the GIPA Act only requires an agency's notice of decision to state "the general nature and the format of the records held by the agency that contain the information concerned". In my view, the respondent has met that requirement. 3. There is no statutory requirement to provide a Schedule of Documents in any particular form. The respondent's preparation of the Schedule of Documents is not, itself, identified to be a reviewable decision under s 80 of the GIPA Act. Conclusion 1. For the reasons set out above: 1. I find that this review is confined to points 1, 17, 18, 19 and 20 of the access application; 2. I find that the respondent undertook all reasonable searches for the information the subject of the applicant's administrative review application. I also find that the respondent undertook all reasonable searches for the information responding to point 1 of the access application; 3. on the basis of my finding of a conclusive presumption that there is an overriding public interest against disclosure of the statements that are responsive to points 1, 19 and 20 of the access application, I find that the decision of the respondent to refuse access to the information is the correct and preferable decision and should be affirmed; and 4. the additional relief sought by the applicant is not available under s 63(3) of the ADR Act. Orders 1. Accordingly, I make the following order: 1. The decision of the respondent dated 1 March 2021 is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 Amendments 14 September 2021 - At [55] Amendment to the numbering of Applicant's Access Application details. 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 September 2021