Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Agarwal v Commissioner of Police, NSW Police Force [2022] NSWCATAD 331 Hearing dates: 4 August 2022 Date of orders: 12 October 2022 Decision date: 12 October 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: (1) Pursuant to s 63(3)(b) of the Administrative Decisions Review Act 1997 (NSW), the respondent's decision dated 5 April 2022 is varied as follows: With respect to item 14 of the GIPA request, access is refused on the basis that there is a conclusive presumption against disclosure of the information sought pursuant to cll 1(1) and (5) of the GIPA Act. (2) The decision is otherwise affirmed. Catchwords: ADMINISTRATIVE LAW – administrative review – Government information – reasonable searches – public interest considerations in favour of disclosure – public interest considerations against disclosure – balancing the public interest – legal professional privilege and litigation privilege – conclusive presumption against disclosure Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Criminal Procedure Act 1986 (NSW) Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989 (NSW) Government Information (Public Access) Act 2009 (NSW) Local Court Act 2007 (NSW) Police Act 1990 (NSW) Shellharbour Rural Local Environmental Plan 2004 (NSW) State Records Act 1998 (NSW) Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Betzis v Commissioner of Police [2020] NSWCATAD 71 Campbell v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 12 Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34] Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Hansen v Commissioner of Police [2020] NSWCATAD 89 Leech v Sydney Water Corporation [2010] NSWADT 298 Luxford v Department of Education and Communities [2016] NSWCATAD 118 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 Re Waterford and Department of the Treasury (No 2) (1984) 1 AAR 1 Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; [1992] FCA 241 Smith v Commissioner of Police [2012] NSWADT 85 Taylor v Destination NSW [2017] NSWCATAD 272 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: Ashutosh Agarwal (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: M Barnes (Applicant) C Magee (Respondent) Solicitors: Acorn Lawyers (Applicant) McCullough Robertson (Respondent) File Number(s): 2022/00039059 Publication restriction: None REASONS FOR DECISION 1. These proceedings concern a request that Ashutosh Agarwal (the applicant) made to the Commissioner of Police, NSW Police Force (the respondent) on 27 April 2021for the release of documents under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act) relating to himself. The request comprised 19 separate categories, most of which relate to an alleged larceny at the Commonwealth Bank, Wollongong Branch, between 3 January 2019 and 12 April 2019. 2. The applicant submitted an amended GIPA request to the respondent on 23 June 2021 and on 30 August 2021, the respondent issued a Notice of Decision under the GIPA Act. He decided not to release any of the information requested on the basis that this information was already available to the applicant as it was provided to his solicitors by service and subpoena. He stated that there was no reason to believe that the information is no longer in the solicitors' possession and he decided that the applicant could access the information via his lawyers. He relied upon s 59(1)(d) of the GIPA Act and he stated, relevantly: I have refused this information for the following reasons: a. I note that you were charged under (case no.) in regards to R v Ashutosh Agarwal that went for hearing at the Albion Park Local Court on 16 December 20210 (sic) (2020) where the charge was withdrawn. b. In that regard I sent an information request to Wollongong PD. I have been advised by Detective Senior Constable Nathan Kirkwood that all information requested has been provided to the applicant. c. I note the following: The brief of evidence for (case no), was served on George Sten & Co Solicitors. This should include CAN, Facts Sheet, all statements, and evidence used for this prosecution. That there have been 3 subpoenas for this information: i. Subpoena 2020/110 applied for on 22 January 2020 by Armstrong Legal requested any statements taken but not served, communication with witnesses, COPS entry, initial report to Police and Criminal Records of [named informants]; ii. Subpoena 2020/1783 applied for on 18 March 2020 by Armstrong Legal requested any statements taken but not served, any communication or notes of communication with witnesses, staff from Commonwealth Bank, any relative of [named informant], COPS entry and all police diary notes relevant to the investigation; and iii. Subpoena 2020/7060 applied for on 6 October 2020 by Criminal Law Specialists requested the COPS entry, all statements taken but not served, all statements (including notebook or typewritten) by [named informant], all written communications or records of verbal communications with [named informants], all emails and other written communications to and from Police to Commonwealth Bank Staff, all notes or records of meetings or conference between Police and Commonwealth Bank Staff, initial reports made to Police, all file notes, diary notes taken by Police and all written records taken by Police for this investigation or prosecution. The Criminal records of certain persons. 1. The applicant applied for an internal review and on 3 December 2021, the respondent issued a Notice of Review Decision. 2. The respondent decided, under s 58(1)(d) of the GIPA Act, to provide access to the requested information except where there is an overriding public interest against disclosure. He took into account that the respondent cannot control how the information released under the GIPA Act is used or disseminated. He stated that searches did not locate some of the information that he decided that he did not hold the following information: s 58(1)(b) of the GIPA Act: 3. Banking receipts and full record of the seized cash including Australian Dollars, US Dollars and HK Dollars that is deposited by NSWP in any financial institution including scan of notes deposited in relation to the alleged larceny at the Commonwealth Bank Wollongong Branch between 3 January 2019 to 12 April 2019. 4. Emails and letters between: (a) DSC Nathan Kirkwood; (b) DSC Scott Nicholls; (c) Crime Scene Officer Sue Sutherland; and (d) DCI Bradley Ainsworth, During the period commencing on 1 April 2019 and ending on 27 April 2021 in connection with the alleged larceny at the Commonwealth Bank Wollongong Branch between 3 January 2019 to 12 April 2019. 8. Forms, requests and reports relating to presumptive testing or chemical testing conducted on the seized cash in relation to the investigation of the alleged larceny at the Commonwealth Bank Wollongong Branch between 3 January 2019 to 12 April 2019. 17. Copies of all duty books, notebooks of the informant police officers in relation to Event 138452002 and Case Report C70596644. 1. The respondent maintained his decision that information had already been provided to the applicant: s 59(1)(d) of the GIPA Act. He also stated that in relation to "item 11 of the GIPA request, the searches that were conducted did not reveal any further photographs of the applicant's mobile phone to those served in the brief of evidence. As the GIPA request indicated that the applicant was still in possession of the brief of evidence, he decided that this information was already available to him. 2. The respondent also stated that in making the review decision, he applied the public interest test under s 13 of the GIPA Act. He identified the following public interest considerations in favour of disclosure: (1) the statutory presumption in favour of the disclosure of government information; (2) the general right of the public to have access to government information held by the agencies; (3) the information requested would assist the applicant in a civil claim; and (4) some of the information includes his personal information. However, he also identified the following public interest considerations against disclosure under the table to s 14(2) and Sch 1 of the GIPA Act: Clause 1(e) of the table to s 14(2) 1. This provides that there is a public interest consideration against disclosure of information if disclosure could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such as way as to prejudice a deliberative process of government or an agency. 2. The records that are the subject of the decision are internal reports and emails prepared for the purpose of providing advice, opinions and recommendations in connection with the withdrawal of criminal charges, they were therefore prepared for and taken into account in a deliberative process of the agency. Although the relevant process has ended, the effect of a public interest consideration is to be assessed at a broad operational level – see Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19. 3. It is to be reasonably expected that officials would be inhibited in recording their candid opinions, advice or recommendations, particularly in relation to sensitive issues such as the withdrawal of charges if they were aware that a document would be made public. This has been accepted by NCAT in a number of cases, for example: Hansen v Commissioner of Police [2020] NSWCATAD 89. 4. Further, if officials were to be more circumspect in giving advice, this would have a deleterious effect on the agency's deliberative processes as it would deprive the decision maker of the relevant information needed to make an appropriate decision. Clause 3(a) of the table to s 14(2) 1. This provides that there is a public interest consideration against the disclosure of information that could reveal an individual's personal information. 2. The withheld information is information and opinions of other individuals whose identity is apparent or can be reasonably ascertained from it. It is therefore personal information as defined in cl 4 of sch 4 of the GIPA Act. 3. "Reveal" is defined in cl 1 of sch 4 to the GIPA Act to mean "to disclose information that has not otherwise been publicly disclosed". The withheld information is not already in the public domain. Clause 3(b) of the table to s 14(2) 1. This provides that there is a public interest consideration against the disclosure of information that would contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (PPIPA). 2. The relevant information protection principle in this matter is contained in s 18 of the PPIPA, which only allows for the disclosure of personal information in certain prescribed circumstances. Disclosure of personal information in response to the GIPA request would not fall within the scope of any of the disclosures permitted by s 16. 1. The respondent stated that in balancing the public interest considerations, he gave significant weight to the considerations in favour of disclosure, but greater weight to those against disclosure. He relied upon the Tribunal's decision in Hansen, that officials should be able to prepare written material, including reports, relating to decision-making, without hesitation due to fear of disclosure of the material. Officials should be able to put in written form what they could otherwise convey orally, in circumstances where any oral communication would remain confidential. This allows officers to deliberate and make honest and frank recommendations, on sensitive matters such as the factors for and against proceeding with an offence. It also ensures there is a proper full and retrievable account of deliberations and recommendations available for the record. 2. In Hansen, the Tribunal also stated that individuals also quite rightly expect government agencies to not reveal personal information. They should also expect compliance with statutory obligations and the information protection principles and if it was not for the GIPA Act, disclosure of the personal information would otherwise be a breach of the PPIPA. Therefore, he concluded that there are overriding public interest considerations against the disclosure of the withheld information. 3. On 10 February 2022, the applicant filed the current Application for Administrative Review. He did not set out specific grounds of review, but instead referred to "several reasons including without limitation the following reasons" for his application. I have summarised the reasons as follows: 1. The review officer erred in deciding that information was not held because "most of the information that is claimed to not being held by the Police … is required by law to be held by the Police;" 2. In relation to cl 1(e) of the table to s 14(2), the review officer erred in finding that there is any public interest consideration against disclosure of the information. 3. In relation to cll 3(a) and 3(b) of the table to s 14(2), the review officer erred because the respondent has already submitted statements provided by over 20 individuals in open Court in this matter. It is highly unlikely that any of the requested information would actually include any relevant private or personal information that is not already in the public domain by virtue of being submitted in the Court by Police. However, if there is any such private or personal information in the relevant documents, the respondent is able to redact that information and release the balance of the information. 4. The review officer erred in citing Hansen in support of deciding not to disclose the requested information as the context of that matter is entirely different to this matter. Procedural directions 1. On 14 March 2022, Senior Member Higgins conducted a case conference, at which the applicant appeared in person and Ms Penna, Administrative Law Unit, Office of General Counsel, appeared for the respondent. The Senior Member remitted the decision dated 3 December 2021 to the respondent for reconsideration and she ordered the respondent to advise the applicant and the Tribunal by 5 April 2022: (1) his decision on reconsideration; (2) detailed reasons for the decision; (3) a schedule of documents identifying in tabular form each document for which access is refused by number (including the applicant's item number to which it refers) and giving details of its date, nature and author and the basis on which access was refused; and (4) a copy of the information for which a decision has been made to grant access. She also ordered the respondent to file material on a confidential basis by 5 April 2022: (1) documents considered to be subject to a conclusive public interest against disclosure; and (2) documents considered to be subject to a non-conclusive overriding public interest against disclosure. She listed the matter for a further case conference on 11 April 2022. 2. On 11 April 2022, Senior Member Higgins conducted a further case conferences at which the applicant appeared in person and Ms Penna appeared for the respondent. She made the following orders: 1. On or before 29 April 2022, the applicant is to file and serve a document identifying the documents that he asserts are held by the respondent and which the respondent has failed to identify or locate. He is also to provide any evidence he has in support of his assertions. 2. On or before 20 May 2022, the respondent is to file and serve his written response to the matters identified in accordance with order (1). 3. By 20 May 2022, the respondent is to file the following material on a confidential basis: 1. The documentation regarding the withdrawal of charge as identified in the schedule annexed to the decision of 5 April 2022; and 2. Any additional document located as a result of further inquiries having been made, where those documents are also considered to be subject to a non-conclusive overriding public interest against disclosure. 1. The Senior Member noted that: 1. The decision the subject of review is that made by the respondent on reconsideration on 5 April 2022; 2. The applicant does not press access to the redacted information which has been withheld by the respondent on the grounds that it is personal information of a person other than the applicant (item 3(a) and 3(b) to the table to s 14(2) of the GIPA Act); 3. However, the applicant does press: 1. Access to the information regarding the withdrawal of charge on the grounds of item 1(e) of the table to s 14(2) of the GIPA Act; and 2. The decision of the respondent that he does not hold any further information about the various points for which he sought access, in this regard the applicant asserts that he has evidence to support his assertions. 1. Senior Member Higgins listed the matter for a further case conference on 30 May 2022. However, on 18 May 2022, Senior Member Montgomery extended the time for compliance with orders 2 and 3 until 24 May 2022. 2. On 30 May 2022, Senior Member Higgins conducted the further case conference. The applicant appeared in person and Mr Roberts of McCullough Robertson appeared for the respondent. She made the following orders: (1) By 6 June 2022, the respondent to give the Tribunal and the applicant his decision regarding additional searches for information within items 3, 4 9, 10, 11, 13 and 18 of the GIPA application; (2) by 13 June 2022, the applicant is to advise the Tribunal and the respondent in writing whether he presses access to any of the withheld information (the subject of the respondent's decision in relation to order (1); (3) by 11 July 2022, the respondent is to file and serve his evidence including statements, documents and submissions; and (4) by 22 July 2022, the applicant is to file and serve his evidence including statements, documents and submissions and provide the respondent a list of witnesses required for cross-examination. She listed the matter for hearing on 4 August 2022 and, by agreement of the parties, gave witnesses leave to appear by AVL. The Reviewable Decision 1. I note that the Application for Administrative Review seeks a review of the review decision dated 3 December 2021. However, I am satisfied that this was superseded by the reconsideration decision dated 5 April 2022 and that Senior Member Higgins correctly recorded on 11 April 2022 that this is the reviewable decision in this matter. 2. On 5 April 2022, the respondent noted that during the case conference on 14 February 2022, the applicant confirmed that he sought reconsideration because he had not received information in relation to items 1, 2, 3, 4, 5, 9, 10 and 18 of the GIPA request and he wished to review both the partial release of information in relation to item 7 and the refusal to release documents in relation to item 13. 3. The respondent stated that he conducted further searches and enquiries in relation to the various items of the GIPA request, as follows: In relation to point 1, I note that the Case report C70596644 was released to you in part on 3 December 2021. This is a report found on the COPS system. I note that your request is for COPS events related to this case. The only event related to this case is E138452002 which is captured by part 2 of your application. I am satisfied that there is no further information in relation to this point. In relation to point 2 I note that E138452002 was released to you in part on 3 December 2021. I am satisfied that there is no further information in relation to this point. In relation to point 3, the records of banking receipts, a further search of the NSW Police EFIMS system. Further searches were also directed towards the Exhibits Officer at the Wollongong Police Area Command. The results of these searches are listed in the schedule below. I am satisfied that no further information is held in relation to this point. In relation to point 4 of your application an e-mail vault search was conducted by the Professional Standards Command of the various officers during the time frame requested. A total of 21 emails were returned in relation to officers Kirkwood and Ainsworth. No emails were returned in relation to officer Sutherland. I am satisfied that no further information is held in relation to this point. In relation to point 7 of your application I note that a 'Forensic results summary' was released to you in part on 3 December 2021. This report contains the complete outcome of DNA testing which was carried out on the money in question. I am satisfied no other information is held regarding this point. In relation to point 8 of your application I am satisfied that no application was made, nor chemical testing carried out in relation to the money in question. My basis for this belief is based on my conversations with the officer in charge, as well as the fact that any application or result would be held in the Forensic Results summary previously released in part, I am therefore satisfied that no information is held in relation to this point. In relation to point 10 of your application I note that a 'Forensic Results Summary' was released to you in part on 3 December 2021. You will note the document is also headed EFIMS. A further search was also conducted on the EFIMS system. These documents contain the results of all forensic procedures carried out in this investigation as well as all exhibit management taken during and after the investigation. I am satisfied that no further information is held in relation to this point. In relation to point 16 of your application I note that a CAD report was released to you in full on 3 December 2021. I am satisfied that no further information is held regarding this point. In relation to point 18 of your application, based on my discussions with the Officer in Charge I am satisfied that no notebooks or notes are held in relation to this matter. 1. The respondent decided to provide access to the information requested in the amended access application, except where there is an overriding public interest against disclosure of it: s 58(1)(d) of the GIPA Act. He also stated that all reasonable searches had been undertaken and he decided that the information sought in items 8 and 18 of the GIPA request was not held. 2. In relation to the public interest test, the respondent identified the following public interest considerations in favour of disclosure: (1) the statutory presumption in favour of the disclosure of government information; (2) the information includes his personal information; and (3) the information could reasonably be expected to inform and enhance understanding of the performance of police functions. 3. The respondent maintained his decision that there were public interest considerations against disclosure under cll 1(e), 3(a) and 3(b) of the table to s 14(2) of the GIPA Act and he relied upon the decisions in Camilleri and Hansen. 4. In balancing the public interest considerations, the respondent gave the considerations in favour of disclosure significant weight, but he gave greater weight to the considerations against disclosure. He also adopted the closing comments in the Review decision (set out previously in this decision). Applicant's response dated 29 April 2022 1. The applicant stated that despite the claims made in the decision, the respondent has failed to release a large amount of the requested information "having failed to conduct all reasonable searches… for the reasons stated below": 1. He pressed for all COPS entries in the Case Report C70596644 for the period from 3 January 2019 to December 2021 and disputed that the entries released to date "do not seem to be for all of this period". He did not press the claim for any personal information of anyone that the respondent, acting reasonably and in accordance with the law, believes should not be released. However, he alleged that the respondent failed to comply with the Tribunal's orders to "provide" documents on a confidential basis. 2. He pressed for all COPS entries for event E138452002 and disputed that the entries released to date "do not seem to be for all of this period". Otherwise, he repeated his statements set out in (1) above. 3. He argued that in relation to item 3 of his GIPA request, the respondent had failed to address his specific request, which includes "Banking receipts and full record of the seized cash". He stated that he was provided with EFIMS record, which he did not request, but this does list any money banked or provide any information about banking receipts for the money banked by the police. He stated, relevantly: It is difficult to understand why the police would not have any record relating to the actual deposit of money in the relevant bank account since they do claim that a large amount of money was banked sometime between 3 July 2019 and 5 October 2020, Detective Senior Constable Kirkwood sent a letter to Mr Andrew Tiedt, solicitor dated 5 October 2020 claiming that a large portion of the money was banked as per the police procedure, copy attached as Annexure 1… My request also included "scan of notes deposited in relation to the alleged larceny at the Commonwealth Bank Wollongong Branch between 3 January 2019 to 12 April 2019." I am aware that these scans exist because in the matter of R v Ashutosh Agarwal and Smita Agarwal (the proceedings), Detective Senior Constable Kirkwood stated below in the open court: In November there was a voire dire in front of your Honour in relation to the money that I seized and kept for your Honour. After that money was examined by your Honour and the defence, all the (cash) was placed through a scanner and the serial numbers of each note was scanned as part of that… Annexed hereto and marked Annexure 2 is a copy of page 110 of the transcript of the proceedings… 1. Otherwise, he repeated his complaint regarding the failure to provide confidential information. 1. With respect to his request for emails in item 4 of the GIPA request, he complained that only 21 emails were produced. He complained that the respondent had failed to provide all of the emails and he asserted that a number of emails that were not produced were discussed in open court during the proceedings. He stated that it is difficult to conclude that a large body of emails exist. Otherwise, he repeated his complaint regarding the failure to provide confidential information. 2. In relation to item 7 of his GIPA request, the applicant disputed that the Forensic Results Summary that was released to him in part contains the complete outcome of DNA testing carried out on the money in question. He stated, relevantly: I understand that several DNA tests were conducted between the period commencing on 3 July 2019 and ending in November 2020. Senior Constable Kirkwood and/or Senior Constable Nicholls among others, made numerous requests to the alleged victims and others for collection of DNA and fingerprint samples. I understand that one of the alleged victims even provided their DNA sample through a police station in Orange, NSW, No relevant document or information has been released to me nor an explanation as to why it has not been released. Surely, the NSW police cannot claim that they do not keep any record of such requests or file any reports for such events. It is clear that the documents/information requested under item 7 of my GIPA application exist and that someone does not wish these to be released despite their obligation to do so under the relevant law. It is unfortunate that very limited enquiries are made by the Commissioner/InfoLink which has resulted in incorrect information being provided to them… 1. Otherwise, he repeated his complaint regarding the failure to provide confidential information. 2. In relation to item 8 of the GIPA request, he noted that the respondent decided that no application was made, nor was chemical testing carried out in relation to the money in question, but during the prosecution, DSC Nicholls agreed with the defence that the police were very interested to see if any DNA from the alleged victims was on the banknotes, or any chemicals that linked the banknotes to the processes which the alleged victims said they undertook in relation to those notes. He also alleged that DSC Nicholls agreed that police had "not bothered to disclose to the defence the fact that that forensic testing took place with no result." He annexed a copy of page 83 of the Transcript of the proceedings and stated, relevantly: The above clearly indicates that DNA and chemical testing were conducted. Under item 8 of my GIPA application I requested information not only in relation to chemical testing, but also "presumptive testing". No information has been provided to me in relation to presumptive testing… 1. Otherwise, he repeated his complaint regarding the failure to provide confidential information. 2. In relation to item 9 of his GIPA request, he disputed that no fingerprint notification report had been released to him and he also repeated his complaint regarding the failure to provide confidential information. 3. In relation to item 10 of the GIPA request, he noted that the respondent released a Forensic Results Summary to him in part on 3 December 2021. He was provided with an EFIMS report, which he did not request, and this did not provide the requested information as it lacks details of the various DNA samples collected from several individuals from 3 July 2019 to 16 December 2020, and it mentions certain notes what were excluded from the summary. Otherwise, he repeated his complaint regarding the failure to provide confidential information. 4. In relation to item 16 of his GIPA request, the respondent stated that a full CAD report was released in part on 3 December 2021. However, he could not identify any document released on 3 December 2021 that "is captioned CAD report" and matches the request for a CAD report from COPS Link for WG105 call sign. 5. In relation to item 18 of his GIPA request, he disputed the respondent's statement that no notebooks or notes were kept in relation to this matter. He asserted that it is common knowledge that police procedures require that notebooks and notes be maintained by the investigating officers and other police personnel in relation to any matter under investigation. He stated, relevantly: For instance, Detective Senior Constable Liackman in his statement dated 27 December 2019 refers to 'contemporaneous notes of conversation with AGARWAL'. NSW Police would have a copy of this statement. Given that by stating, "based upon my discussions with the Officer in Charge I am satisfied that no notebooks or notes are held in relation to this matter" is the Commissioner now indicating that all notes and notebooks are no longer kept by the relevant police or that they have been destroyed. 1. Otherwise, he repeated his complaint regarding the failure to provide confidential information. 2. In relation to item 11 of his GIPA request, he alleged that the respondent ignored his request because no such information was provided and at least some of the photographs were tendered in the proceedings. 3. In relation to items 13 and 14 of his GIPA request, he alleged that the respondent ignored his requests because no such information has been provided. 4. He disputed that the respondent has conducted reasonable searches and he concluded that "it is clear that the documents/information requested in my GIPA application exist and dare I say that someone does not wish these to be released despite their obligation to do so under the relevant law." 5. The applicant pressed for of the requested documents/information to be released in full. The hearing The matter came before me for hearing on 4 August 2022. Mr M Barnes of Counsel appeared for the applicant and Mr C Magee of Counsel appeared for the respondent. Counsel and the applicant appeared in person and, as per leave granted by Senior Member Higgins, the witnesses appeared by way of AVL. Opening arguments Respondent's opening argument 1. Mr Magee stated that the background to the current matter is that the applicant was the subject of a criminal prosecution at Albion Park Local Court, which was withdrawn on the third day of the hearing. The applicant applied under the GIPA Act for documents in a number of categories with respect to that prosecution. The respondent produced some documents to the applicant. 2. The current dispute relates to: 1. Item 4 of the GIPA request, which seeks emails and letters between police officers from 1 April 2019 to 27 April 2021 with respect to an alleged larceny at the Commonwealth Bank Wollongong Branch; 2. Item 7, which seeks forms et cetera with respect to DNA testing on seized cash; 3. Item 11, which comprises photos of the applicant's mobile phone; 4. Item 14, which comprises an informant's police report with respect to the Court Appearance Notice being withdrawn at Albion Park Local Court; and 5. Item 18, which comprises notebooks and duty books held by the police officers involved in the investigation 1. Mr Magee noted that the applicant's primary issue with the decision dated 5 April 2022 is whether he identified all documents with respect to items 4, 7 14 & 18 of the GIPA request. This is a dispute under s 53 of the GIPA Act. Accordingly, the two questions for the Tribunal to determine are: (1) Are there reasonable grounds to exist that the documents exist?; and (2) Have reasonable searches been conducted? 2. The applicant must show an arguable case with respect to the existence of the documents and "general mistrust" is not enough. The respondent states that he has conducted reasonable searches and identified all relevant documents and the evidence of Senior Sergeant (S/S) Twyman is relevant to this issue. His evidence is that he conducted three searches and that the last search proved that no further relevant documents exist. 3. With respect to item 7, the respondent relies upon the evidence of Detective Senior Constable (DSC) Kirkwood. Based on his evidence, the Tribunal should be satisfied that reasonable searches were conducted with respect to item 7. 4. In relation to item 14, the respondent relies upon the evidence of Chief Inspector (CI) Norton. Based on her evidence, the respondent asserts that the Failed Prosecution Report should not be released to the applicant, because there is an overriding public interest consideration against disclosure under cll 1(e) , 3(a) and 3(b) of the table to s 14(2) of the GIPA Act. Further, the email chain should not be released because it is subject to a conclusive presumption against release under cll 1(1) and 1(5) of sch 1 of the GIPA Act. 5. However, if the Tribunal found that cl 1(e) to the table in s 14(2) does not apply to the Failed Prosecution Report, parts of it are subject to s 169A of the Police Act 1990 (NSW) (the Police Act) and cl 54 of the Police Regulation 2015 (NSE) (the Police Regulation) and redactions would be required before the report could be released to the applicant. 6. In relation to the email chain, the respondent relies upon the decision in Campbell v Commissioner of Police [2022] NSWCATAD 12, in which Senior Member Mulvey considered the role of the Police Prosecution Command (PPC) and held that where the Commander is an admitted solicitor, prosecutors act as their agents. He asserts that in this matter, DCI Ainsworth is "the client". 7. In relation to item 18, Mr Magee stated that under ss 58(1)(c) and 59(1)(d) of the GIPA Act, an agency can decide that information is already available to an applicant. In this matter, the information was produced as part of the prosecution brief. The respondent relies on the evidence of DS Kirkwood, to the effect that police officers more often use video cameras to record evidence rather than notebooks etc. Any notebooks etc. would have been held in a secured folder and the only three notebooks that were found were disclosed as part of the brief and no other document exist. Applicant's opening statement 1. Mr Barnes stated that the applicant is a solicitor who was charged with larceny. He was subjected to a prosecution over a period of 18 months but the charges were withdrawn on the third day of the trial. He seeks the information in the GIPA request on the basis that they are particularly personal to him. 2. Mr Barnes stated that the current dispute relates to four items in the GIPA request, namely: 1. Item 4, which is the subject of a dispute under s 53; 2. Item 7, with respect to which he will cross-examine DSC Kirkwood; 3. Item 14, with respect to which the applicant disputes the claim for privilege and states that this was possibly lost; and 4. Item 18, with respect to which he will cross-examine DSC Kirkwood. The applicant's evidence 1. The applicant relied upon his statement dated 22 July 2022, which was admitted and marked Ex A subject to the following objections: 1. Paras 3 to 16 (inclusive), 18 and 19 – objection as to relevance to the issues in dispute and the accuracy of the assertions are disputed. 2. The Tribunal ruled that the paragraphs should remain in evidence, subject to the issue of the weight to be given to the evidence. 3. Paragraphs 21 and 22 were struck out because the accuracy of the assertions were disputed and the applicant could put those matters to the witness in cross-examination. 4. Paragraphs 24 and 33 were struck out on the basis that they are in the nature of submissions rather than evidence. 1. The applicant stated that he is a director and employee of an incorporated legal practice and a director of other companies that conduct other businesses. Between July 2009 and October 2020 he rented two safety deposit boxes from Commonwealth Bank of Australia at its Wollongong branch. Between July 2009 and 3 January 2019 he placed a substantial quantity of Australian currency in one of the boxes along with other items. 2. On 3 January 2019, he attended the Commonwealth Bank (CBA) at Wollongong to access the safety deposit boxes. He had two customer keys (provided by CBA). He was able to access one box, but the second box could not be opened using his customer key. The Branch Manager then provided a CBA staff member with a duplicate customer key and the box was opened in his presence. However, he found that the box was empty and he told staff that there should have been a substantial quantity of Australian currency in it. He told CBA staff that if this was not resolved he would take the matter up with CBA's senior management and would lodge a complaint with NSW Police. The Bank Manager did not want him to do this and asked for some time to investigate the matter and CBA staff retained his customer key. 3. However, about two hours later, the Bank Manager called him back to the CBA and gave him access to a different safety deposit box because he had "worked out that his customer key actually worked on this box". He asked the applicant to check to see if this box contained his money "because CBA sometimes shuffles boxes around". He checked the box and advised the CBA staff member that his missing belongings were in it and briefly showed the staff member this by opening the lid. Upon the Manager's direction, the contents of the box were placed back into his official allocated box and, view to making a list of the items in the box, he took photos of the open boxes. He said that he took "the majority of the cash with him to count so that if something like that happened in the future he would know exactly which box had what in it". 4. In May 2019, he rented another safety deposit box from CBA, to keep smaller amounts of cash and jewellery in each box (to minimise the risk of losing his belongings). He attended the CBA on 27 June 2019 to access the three boxes, but the CBA staff denied him access and said that there was some dispute about the contents of the boxes. He offered to show the boxes to senior CBA staff so that they could satisfy themselves or even make an inventory of the contents, but the CBA staff declined to do so. 5. On 3 July 2019, he was arrested at his home without being advised of any reason. He asked for a reason several times and was told that it would become clear to him at the Police Station. He was taken to Wollongong Police Station and he was asked to take part in an interview with DSC Kirkwood and DSC Bertacco, during which he was advised that he was arrested for alleged larceny of $189,500 at the CBA. 6. On 3 July 2019, DSC Kirkwood and others searched his house and seized $69,880 in Australian currency, $7,000 in United States currency and $27,500 in Hong Kong currency, although there was allegation that the alleged victims lost any foreign currency. That night he was charged with larceny as the alleged victims claimed to have placed $189,500 in the box (which the CBA Manager told him contained his belongings). 7. On 4 July 2019, he attended Wollongong Police Station and met with DSC Kirkwood and DSC Bertacco. He told them what had occurred on 3 January 2019 and asked them to investigate why his box was found empty on 3 January 2019 and why his belongings were later found in this box some two hours later by CBA staff when he threatened to lodge complaints and involve police. However, DSC Kirkwood declined this request and said police were not investigating that issue. 8. Between 3 July 2019 and 13 December 2020, DSC Kirkwood took control of the matter and he served a brief on him in September 2019, which had some missing or pending documents. He then provided some of the missing or pending documents from time to time and provided some other missing documents upon specific requests made by his lawyers. During that period, his lawyers issued several subpoenas to the respondent, which were responded to by DSC Kirkwood, and the respondent released some but not all of the documents required under the subpoenas. 9. On 15 December 2020, the second day of the prosecution hearing, the police prosecutor advised his lawyers that she wished to withdraw the charges against him. The charges were formally withdrawn on 16 December 2020. 10. The applicant provided a commentary of events that allegedly occurred from the lodgement of his GIPA request until the commencement of the current proceedings. He said that between February 2022 and July 2022, the respondent provided some, but not all, of the requested documents and asserted that he should have been able to locate them. 11. In relation to item 4 of his GIPA request, the applicant disputed that all emails of the four identified officers have been released. He stated, relevantly: 32. While I cannot provide a list of the emails that the respondent has in relation to my matter as I cannot know what hasn't been given to me, I again provide examples of some emails that I know should be available to the respondent: (a) Email from Detective Senior Constable Nicholls to Detective Senior Constable Kirkwood dated 30 June 2019 sent at 8:52pm. This email was acknowledged or discussed in the open court during the proceedings… 1. Also in relation to item 4 - DNA Testing, the applicant complained that before 12 November 2019, the detectives did not disclose that any tests were done on the money seized. After that date, once the defence found out by chance, he sought information on presumptive testing including DNA and fingerprints, but none of that information was provided to him. On 14 and 15 December 2020, under cross-examination, DSC Kirkwood and DSC Nicholls admitted having conducted DNA and fingerprint testing but they did not provide specific details. On 15 December 2020, DSC Kirkwood gave evidence that fingerprints and DNA swabs were taken from a number of bundles of the seized banknotes. However, the respondent now seems to be claiming that swabs were taken from only one bundle of banknotes. He complained that the respondent has only provided a summary from EFIMS and not the DNA reports, and he has not provided information such as requests for sample collection from alleged victims. 2. With respect to item 14, the applicant stated that the police prosecutor withdrew the charges on the morning of 16 December 2020 without providing any reasons and he complained that access to these documents, which could elaborate the reasons, are now being denied by the respondent. He stated: 42. I need to know why the police decided to "grab" at least a week before 3 July 2019 without even knowing what was in my CBA boxes and at my home or without even talking to me and thereafter pursued me relentlessly regardless of the evidence that was available to them including the fingerprints, DNA as well as all the subpoena material that I obtained from third parties and was served on the police. No public interest is being served by hiding what police did in this matter that led to them withdrawing the charges. 1. With respect to item 18, the applicant stated that it is not disputed that detectives use duty books and notebooks or that they do not usually wear bodycams. He said that he did not see any of the detectives wearing any bodycams and no bodycam footage was served upon the defence as part of the brief served in September 2019. He alleged that the respondent had not made "reasonable endeavours" to locate the duty books and notebooks as his enquiries were limited to asking DSC Kirkwood. The respondent's evidence 1. The respondent relied upon the following affidavits, which were admitted and marked as follows: 1. Affidavit of D/S Duane Carey affirmed 1 August 2022 – Ex 1; 2. Affidavit of Matthew Smith affirmed 11 July 2022 – Ex 2; 3. Affidavit of DSC Nathan Kirkwood affirmed 12 July 2022 – Ex 3; 4. Affidavit of C/I Norton affirmed 7 July 2022 – Ex 4; 5. Affidavit of S/S Mark Twyman affirmed 7 July 2022 – Ex 5; 6. Affidavit of S/S Mark Twyman affirmed 2 August 2022 – Ex 6; and 7. Affidavit of S/S Mark Twyman affirmed 3 August 2022 – Ex 7. Evidence of S/S Twyman 1. S/S Twyman's evidence in Ex 5, Ex 6 and Ex 7 is to the effect that he: (a) Has extended access to the Vault, which allows him to search and access all emails sent and received by the NSWPF's email system; (b) has regularly conducted audits of the NSWPF's email system for 20 years for the purpose of assisting with internal investigations and investigations conducted by the NSW Ombudsman and the Law Enforcement Conduct Commissioner; (c) He conducted searches in relation to item 4 of the third amendment letter, specifically for emails between the four identified individuals (by their registered number) between 1 April 2019 and 27 April 2019. 2. S/S Twyman said that he identified: 1. 13 emails sent from DSC Kirkwood to Crime Scene Officer (CSO) Sutherland and DCI Ainsworth; 2. 8 emails sent from DCI Ainsworth to DSC Kirkwood and CSO Sutherland; 3. These emails were released to the applicant on 5 April 2022. 4. 20 emails sent by DSC Nicholls to DSC Kirkwood, CSO Sutherland and DCI Ainsworth; and 5. 48 emails received by DSC Nicolls from DSC Kirkwood, CSO Sutherland and/or DCI Ainsworth. These emails were released to the applicant with the supplementary written submissions. 1. S/S Twyman stated that while the applicant provided a list of 10 emails, which he alleges exist and were not produced in response to item 4, these were either outside the scope of the item or do not exist. The explanation is set out in further detail in the table in Annexure "A" and based upon it, the Tribunal cannot be satisfied that there are reasonable grounds to believe that the respondent holds any further documents in response to item 4. 2. As the applicant required S/S Twyman to be available for cross-examination, Mr Magee called him and he was affirmed. He stated that his current role is in the PSC and he confirmed that the evidence in Ex 5, Ex 6 and Ex 7 is true and correct. 3. In cross-examination, Mr Barnes referred S/S Twyman to para 10 of Ex 5, in which he stated that on 1 March 2022, he received an email from the Office of General Counsel (OGC) to undertake a Vault search. He said that he requested the registration numbers of each of the relevant officers from the OGC and he was then provided with registration numbers of each of the four officers and that he undertook a search of the Vault on 16 March 2022. He put to the witness that the registration number for DSC Nicholls was incorrect and asked whether the search was conducted only of the subject line of the emails? 4. S/S Twyman replied that both the subject lines and the body of all emails were searched. He said that he later repeated the search with respect to DSC Nicholls and found 68 emails, which were found using expanded search terms. After reading the applicant's statement, he further reviewed the five emails sent by DSC Nicholls to DSC Kirkwood on 30 June 2019, which he had not considered were relevant to the applicant's matter. Hover, he identified that they were relevant and he produced them on 2 August 2022. 5. Mr Barnes asked the witness if there is a unique identifier that attaches to criminal proceedings. He replied that this is not mandatory. Otherwise, Mr Barnes asked whether a vault search will pick up deleted emails. The witness replied "yes". 6. As Mr Magee did not wish to ask the witness any questions in re-examination, the Tribunal excused him from further attendance. Evidence of DSC Nathan Kirkwood 1. On 17 July 2022, DSC Kirkwood affirmed his affidavit (Ex 3), in which he deposed to the effect that all documents are stored in Exhibits Forensics and Miscellaneous Properties (EFIMS) or the COPS database. He searched EFIMS and found seven documents, which were produced. He searched COPS and found two documents. An issue arose as to whether there was DNA testing of identified persons who may have handled the money that was the subject of the larceny charge. Several people consented to testing. This information was set out in the Exhibit Custody Report and Forensic Summary Report, which was released to the applicant on 5 April 2022. Other documents were released subject to minor redactions (personal information). 2. With respect to photographs, DSC Kirkwood stated that he took the relevant photographs and that all photographs falling within the scope of item 11 are stored in a secure electronic folder that is accessible to him. He reviewed this folder as recently as 7 July 2022 and confirmed that there are only fourteen photographs of the applicant's phone. 3. DSC Kirkwood stated that when he went through EFIMS - the "analysis job result" tab, he looked at the "Forensic Results Summary" report rather than individual documents (as the summary report includes the content of all of the individual documents). Based on his evidence, the Tribunal should be satisfied that reasonable searches were conducted with respect to item 7. 4. DSC Kirkwood referred to his email exchange with the applicant's solicitor on 5 November 2020, in which the solicitor requested a number of items that were previously sought under subpoena. In response to request for "All file notes, diary notes taken by Police in respect of this investigation or prosecution", he responded: I am assuming my notes taken during search warrants were served as part of brief however just in case here are my notes. In response to the solicitor's request for "Any further written records taken by Police of this investigation or prosecution", DSC Kirkwood responded: All emails and records have been served. 1. As the applicant required DSC Nathan Kirkwood to be available for cross-examination, Mr Magee called him and he was affirmed. He stated that the evidence contained in Ex 3 is true and correct. 2. Mr Magee referred the witness to para 6 of Ex 3, in which he stated that he led the investigation of the applicant for periods while DSC Nicholls was on leave. He stated that during those periods of leave, there were a series of search warrants that were executed at the Commonwealth Bank, the applicant's residence and the applicant's wife's home. He said that DSC Nicholls was on leave for about 4 to 6 weeks, but he does not now recall the dates. 3. In cross-examination, Mr Barnes asked the witness about forensic processes. He put to the witness that he sought to obtain DNA and fingerprints from a number of complainants? The witness replied "yes". He asked the witness if he took any steps to ensure that the complainants gave both DNA and fingerprints, but the witness replied – "DNA only". 4. Mr Barnes then referred the witness to para 16, in which he stated that most requests for a victim or witness to provide a DNA sample to the NSWPF, including all such requests made in the investigation, are made informally either in person or by phone without a written request. As a result there are no written records of any requests for DNA testing of victims or witnesses associated with the investigation. He put to the witness that he emailed a complainant (located in Orange) to go to Orange Police station to give a DNA sample. However, the witness denied this and said that he only made phone calls. 5. With respect to "notebooks", Mr Barnes put to the witness that as a detective, he is not required to wear bodycam. He replied "no". He also put to the witness that he is required to put information into notebook statements. However, the witness replied "no". 6. Mr Barnes then referred the witness to para 46, in which he deposed to the documents he identified as being within the scope of item 18. He asked the witness whether his evidence is that there are no other notebook documents? The witness replied to the effect that he has not located any other documents, although he requested administrative officers and the individual officers to search for old notebooks and to forward any that were found to him. He asked all of the officers involved in the investigation and only DSC Liackman sent him entries in response, otherwise there were only his own notes. He searched his own emails, but these were cleared when the matter was finalised, and they needed to be searched for in the Vault. 7. Mr Barnes put to the witness that when he was cross-examined during the prosecution proceedings, he said that he printed off a fingerprint report, but he did not produce a full DNA report. The witness replied that he only printed a DNA summary report. 8. As Mr Magee did not wish to re-examine the witness, the Tribunal excused him from further attendance. 9. Following the luncheon adjournment, Mr Barnes stated that the applicant did not wish to cross-examine any further witnesses. Accordingly, the remainder of the respondent's evidence, which is summarised below, remained unchallenged. Evidence of D/S Carey 1. In Ex 1, D/S Carey deposed that as of 1 August 2022 he was the relieving Commander of the PPC. He stated that the mission of the NSWPF is to have the police and the community working together to establish a safer environment by reducing violence, crime and fear: s 6(1) of the Police Act. 2. Under s 6(2) of the Police Act, the NSWPF has the following functions: (1) provide police services for NSW; (2) exercise any other function conferred on it by or under this or any other Act; and (3) do anything necessary for, or incidental to, the exercise of its functions. 3. Section 6(3) of the Police Act defines "police services" as including: (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) an other service prescribed by the regulations. 4. D/S Carey stated that he has viewed the documents that were confidentially filed with the Tribunal, being the documents referred to in the affidavit of C/I Norton (Ex 4) as "the email chain". He said that he has not been involved in dealing with the applicant's GIPA request or the decision made in relation to the release of certain information to him. He said that he became aware of these proceedings when he was asked to give evidence in relation to the email chain. He said that he understood that access to the email chain had been refused in full on the basis that it is subject to a claim for legal professional privilege under cl 5 of sch 1 of the GIPA Act. 5. D/S Carey stated that the PPC is a specialist command of the NSWPF which is responsible for the prosecution of criminal offences in NSW Courts. The PPC prosecutes about 85% of criminal cases on behalf of the NSWPF and various other government agencies in courts of summary jurisdiction. The PPC has a number of functions, including responsibility for providing specialist support to the field through provision of timely legal advice on issues including prospects of success in respect of criminal charges. Sergeant Coby Davis and S/S Shannon Ryan (now Inspector Ryan) are police prosecutors attached to the PPC. 6. Some police prosecutors are admitted solicitors in NSW, but they are not required to be solicitors in order to undertake their role, provided they complete the Police Prosecutor Education Program. Police prosecutors have a statutory right to appear and have conduct of many summary and indictable criminal matters under ss 36A and 37 of the Criminal Procedure Act 1986 (NSW) and in application matters before the Local Court pursuant to ss 57 and 58 of the Local Court Act 2007 (NSW). 7. However, as Commander of the PPC, all police prosecutors act as his agent when performing their roles and when providing advice and litigation support to the NSWPF. The Commander of the PPC is ultimately responsible for the legal advice provided by police prosecutors and they must be an admitted solicitor with a current NSW practising certificate. He said that he has held a practising certificate since 2013 and that Kirsty Heyward, who was the Commander of PPC at the time of the prosecution, was an admitted solicitor who has held a practising certificate continuously since 2011. 8. D/S Carey stated that legal advice provided by police prosecutors is confidential and is often marked "confidential" and "subject to legal professional privilege", but this is not always the case. In some cases, it is marked "OFFICIAL: Sensitive – Legal Privilege", which means the document is for limited distribution as the information needs protections and access is limited to those on a need-to-know basis. He stated that when advice is given to withdraw charges, the NSWPF's Withdrawal Policy 2012 applies. This provides relevantly: 1. Responsibility for determining if proceedings are withdrawn or left to the determination of the Court rests with the Commander of the Officer in Charge (OIC) of the proceedings i.e. the relevant Police Area Commander or equivalent. Such Commanders, or an officer or officers delegated by them, have the authority to discontinue summary proceedings (para 2.1); and 2. Police prosecutors are instructed that as far as possible, before seeking to withdraw the matter on the day, they should adhere to the standard guidelines for the withdrawal of the proceedings as set out above by… Obtaining the written authority of the Commander of the OIC (or delegated officer e.g. Crime Manager). If time does not permit you to write a report to the Commander, use the email system to create an accountable trail that outlines the matters/sequences you seek to withdraw so that the Commander can respond to your email with their decision (para 2.10). 1. D/S Carey concluded that the email chain in this matter is consistent with legal advice that police prosecutors routinely provide to field officers in connection with criminal matters and that the General Counsel of NSWPF has not waived legal professional privilege in respect of this advice. Evidence of C/I Norton 1. In Ex 4, C/I Norton deposed that she is currently the Manager of South Coast Sector in the PPC. In that role, she oversees the Local and Children's Court prosecutions from Wollongong to Begam and manage all police prosecutors who work within that sector. She is responsible for assisting staff with legal advice, stakeholder engagement and ensuring all court processes and procedures are followed adequately. 2. C/I Norton stated that the PCC uses a database known as the Court Matter File Management System (CMFMS) to store information related to police prosecutions in NSW. The only police officers with access to this database are those attached to the PCC. She stated that the kinds of documents that would be expected to exist within the scope of item 14 of the GIPA request are stored on CMFMS but would depend on whether the proceedings are withdrawn by the prosecutor or dismissed by a Court of were withdrawn prior to the hearing day or on the day of the hearing. 3. On 6 July 2022, C/I Norton said that she accessed CMFMS to identify whether the proceedings against the applicant were withdrawn by the prosecutor or dismissed by a Court and to identify any documents held that would respond to item 14. She searched the database and identified a "Failed Prosecution Report", which she understood has been provided to the Tribunal on a confidential basis. She stated that the kinds of documents expected to be held (and which are within the scope of item 14) in relation to a withdrawn prosecution are: (1) A Failed Prosecution Report; (2) emails or written briefing notes between police prosecutors conducting the case and the relevant Crime Manager regarding the proposed withdrawal of a prosecution (although these may not exist if approval is sought and granted by telephone); and (3) any written representations that may have been received from a defendant or their legal representative in support of a submission that a charge should be withdrawn. 4. C/I Norton stated that she identified an email chain consisting of: (1) An email from Sgt Davis, prosecutor, PCC to S/S (S/S) Ryan, PCC, titled "Police v Agarwal" dated 4:59pm on 15 December 2020; (2) An email from S/S Ryan to Sgt Davis titled "Fwd: Police v Agarwal" dated 8:19pm on 15 December 2020; (3) An email from Sgt Davis to DCI Ainsworth titled "FW: Police v Agarwal" dated 9:51am on 16 December 2020; and (4) An email from DCI Ainsworth to Sgt Davis titled "Re: Police v Agarwal" dated 9:58am on 16 December 2020. 5. However, the only documents that C/I Norton located in CMFMS regarding the prosecution were the Failed Prosecution Report and the email chain. She said that she has no reason to believe that there are any further documents within the scope of item 14 and that the applicant has not identified any reasonable grounds to assert that any further documents exist. 6. C/I Norton deposed that releasing the Failed Prosecution Report could reasonably be expected to seriously undermine a deliberative process of the respondent, revealing the reasons why a prosecution was withdrawn and thereby: (1) revealing the kinds of issues that can prejudice a successful prosecution, which those with criminal intent, or under criminal investigation, could seek to utilised to circumvent or weaken the NSWPF's enforcement of the law; (2) discouraging those seeking approval to withdraw a prosecution, all those who are preparing a failed prosecution report, from writing openly (and thereby encouraging (sic) such decisions to be based on verbal decisions which are not recorded in writing or to otherwise fully articulate their advice and opinions); and (3) prejudicing future deliberative process is in relation to similar decisions on whether or not to withdraw criminal proceedings. Evidence of Matthew Smith 1. In Ex 2, Matthew Smith, Senior Advisory Officer, InfoLink Unit of the NSWPF, deposed to the procedures undertaken by the respondent in managing and determining the applicant's GIPA request, from receipt of the initial GIPA request and following the commencement of the current proceedings. His evidence was not challenged by the applicant. Respondent's submissions 1. On 12 July 2022, the respondent filed written submissions, in which he argued that the correct and preferable decision is to affirm his decision: (1) to provide access to part of the information: s 58(1)(a) of the GIPA Act; (2) that information is not held by the agency: s 58(1)(b) of the GIPA Act; and (3) to refuse access to part of the information because there is an overriding public interest against its disclosure: s 58(1)(d). 2. The respondent identified the disputed issues as: 1. Whether he holds further information in response to items 4, 7, 11, 14 and 18 of the GIPA request: s 58(1)(b); 2. Whether there is an overriding public interest against disclosure of the documents captured by item 14; and 3. Whether the information in response to item 18 is already available to the applicant: ss 58(1)(c) and 59. 1. After making submissions regarding the nature of the proceedings and the relevant law, the respondent addressed the issue of reasonable searches. He noted that the applicant's primary, but not exclusive, issue with his decisions is that he has allegedly not identified items said to exist in relation to the various items in the GIPA request. 2. The respondent stated that under s 53 of the GIPA Act, he must conduct reasonable searches for the government information requested by the applicant. In Smith v Commissioner of Police [2012] NSWADT 85, 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. In relation to the fist limb of the test, the Tribunal has observed that it is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency. As observed by O'Connor DCJ in Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195 at [69] (Cianfrano): An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence. 1. Further, in In Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 at [31]-[44], the Appeal Panel extensively reviewed the authorities relating to s 53 of the GIPA Act and provided the following summary (at [44]): In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) – (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act. 1. In relation to item 4 of the GIPA request, the respondent relies on the evidence of S/S Twyman. Based upon his evidence, the Tribunal should be satisfied that reasonable searches were made and that all items that could be released to the applicant have been released (some with minor redactions). 2. In relation to item 14 of the GIPA request, the respondent relies on the evidence of C/I Norton, Manager of the South Coast Sector of the PPC. Based on her evidence, the Tribunal should be satisfied that he undertook all reasonable searches and that identified, but has not disclosed, documents to the applicant. 3. In relation it item 7 of the GIPA request, the respondent relies on the evidence of DSC Kirkwood. He stated that he searched EFIMS and identified seven documents within the scope of the item and he also searched COPS and found two documents that were within its scope. These documents were released to the applicant on 5 April 2022. Four Analysis Requests from EFIMS were not previously identified or provided to the applicant, but these were now being released to him (subject to minor redactions of personal information). 4. In relation to item 11 of the GIPA request, DSC Kirkwood's evidence should satisfy the Tribunal that he undertook all reasonable searches and has disclosed all items found to the applicant. Further, given his explanation that there are not often documented forms and requests for DNA testing, and the fact that he took the photographs of the applicant's phone, there are no reasonable grounds to believe that any further documents are held. 5. In relation to item 18 of the GIPA request, the respondent relies upon ss 58(1)(c) and 59(1)(d) of the GIPA Act and DSC Kirkwood's evidence. Based on that evidence, he does not believe that any further documents within the scope of this item are held. Further, the emails exchanged between DSC Kirkwood and the applicant's solicitor on 5 November 2020, captured the same information sought by item 18 (at least up until 5 November 2020). 6. The respondent disputed the applicant's assertion that the absence of further notes "is impossible to believe". He stated that this is consistent with modern policing methods and argued that the applicant has not identified any reasonable grounds to assert that any further information is held. The evidence of DSC Kirkwood should satisfy the Tribunal that all reasonable searches have been conducted and that all relevant information which is not subject to an overriding public interest consideration or conclusive presumption against disclosure, has been disclosed to the applicant. 7. The respondent argued given the issues in dispute, only two documents are subject to the public interest test, namely: (1) The Failed Prosecution Report; and (2) The email chain. 8. The respondent argued, based on cl 1(e), that disclosure of the confidential document could "reasonably be expected to… reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency". 9. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 (NSW) and the Freedom of Information Act 1982 (Cth) (FOI Act). 10. In Leech v Sydney Water Corporation [2010] NSWADT 298 (Leech), the Administrative Decisions Tribunal explained the accepted construction as follows: The term 'could reasonably be expected' has been considered in a number of cases. their words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the viewpoint of the reasonable decision maker: Neary v State Rail Authority. something which could be reasonably expected is something more than a mere possibility, risk or change. it must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived. (Emphasis added) 1. In McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [46], Hayne J stated: It is necessary for the agency to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect. 1. "Reveal" is defined in sch 4 cl 1 of the GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise then by unlawful disclosure)". "Disclosure" is defined as "making known to a person information that the person to whom the disclosure is made did not previously know". "Prejudice" is defined as "to cause detriment or disadvantage" or "to impede or derogate from". 2. For the public interest consideration against disclosure in cl 1(e) to apply, the respondent must establish that the disputed information could reasonably be expected to "reveal a deliberation or consultation conducted, or an opinion, advice or recommendation" in such a way to "prejudice a deliberative process" of the respondent. that is, a relevant connexion must be established between the deliberation as contained in the withheld information and the respondent's "deliberative processes". 3. The meaning of the term "deliberative process" was considered by the Administrative Appeals Tribunal (AAT) in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 (Re Waterford) at [58] to [61], in the context in which it appeared in s 36 of the FOI Act. Although cl 1(e) of the GIPA Act and s 36 of the FOI Act are not the same, they both deal with the disclosure of information concerning "the deliberative process" of government or an agency, and as such Re Waterford remains instructive. 4. The AAT defined "deliberative process" as: involving the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action… it by no means follows, therefore, that every document on a departmental file will fall into this category… documents disclosing a deliberative process must, in our view, be distinguishable from documents dealing with the purely procedural or administrative process is involved in the functions of an agency. 1. Based on C/I Norton's evidence, disclosure of the Failed Prosecution Report could seriously undermine he NSWPF's deliberative processes (which invokes cl 1(e) of the table to s 14(2) of the GIPA Act). Also, parts of that report are also subject to s 169A of the Police Act and cl 54 of the Police Regulation, which means that they are subject to a conclusive overriding public interest against disclosure. 2. Further, the email chain consists of confidential communications that the police prosecutors (as agents of a solicitor) and their client, brought into existence for the purpose of seeking or giving legal advice. Therefore, the email chain is subject to legal professional privilege and there is a conclusive overriding public interest against disclosure. 3. In Hansen, the Tribunal, referring to Luxford v Department of Education and Communities [2016] NSWCATAD 118 (Luxford), said at [84]: The Tribunal has also had regard to Senior Member Montgomery's reasons in Luxford and agrees that officers should be able to prepare written material, including briefing papers, relating to decision-making to ensure a proper record of deliberations and recommendations without hesitation due to fear of disclosure of the material. It agrees that officers should be able to put in written form what they could otherwise convey orally, in circumstances where any oral communication would remain confidential. This allows officers to deliberate and make honest and frank recommendations, in the written form, on sensitive matters such as termination of employment. Accordingly the Tribunal gives his consideration significant weight. 1. Accordingly, the respondent argued that significant weight should be given to this public interest consideration against disclosure of the Failed Prosecution Report. 2. With regard to the public interest test under s 13 of the GIPA Act, the respondent stated that based on decisions including Flack and Hurst, the Tribunal is required to: (1) identify relevant public interests considerations in favour of disclosure; (2) identify relevant public interest considerations against disclosure; (3) attribute weight to each consideration for and against disclosure; and (4) determine whether the balance of the public interest lies in favour of or against disclosure of government information. 3. The GIPA Act does not provide a set formula for working out the weight of public interest considerations for against disclosure or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interest is a question of fact and degree, requiring the weighing of competing matters and this task is not amenable to mathematical calculation. 4. The respondent argued that there is an overriding public interest against disclosing "the confidential documents" (the Failed Prosecution Report and email chain), as the s 12 considerations in favour of disclosure are strongly outweighed by the identified public interest considerations against disclosure in the table to s 14(2) of the GIPA Act. While he concedes that the Failed Prosecution Report is of particular interest to the applicant because it concerns his prosecution, when balancing the public interest considerations it is clear that there is an overriding public interest against disclosure. 5. However, if the Tribunal decides to grant access to the Failed Prosecution Report, then the information referred to in para 27 of the Ex 4 must be redacted as it is subject to a conclusive presumption against disclosure. 6. The respondent said he has identified a further document falling within the email chain (item 14), but he has not disclosed this as the entire email chain is subject to a conclusive overriding public interest against disclosure within the meaning of s 14(1) of the GIPA Act, as it "would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)". 7. The respondent argued that a document is privileged in legal proceedings if it: 1. Is a confidential communication between a client and a lawyer, or between two or more lawyers acting for a client, for the dominant purpose of the lawyer, or one or more lawyers, providing legal advice to the client (known as legal advice privilege); and 2. Is a confidential communication between a client and another person, or between a lawyer acting for the client and another person, that was made for the dominant purpose of the client being provided with legal services relating to an Australian or overseas proceeding, or an anticipated or pending proceeding, in which the client is or may be, or was or might have been, a party (known as litigation privilege). 1. In Campbell v Commissioner of Police, NSW Police Force [2022] NSWCATAD 12, the Tribunal confirmed that the written advice of a police prosecutor (in that case a Senior Sergeant who was not a solicitor) was capable of attracting legal professional privilege on the basis that the police prosecutor is an agent of the Commander of the PPC (who was then Superintendent Heyward - a solicitor admitted to practise in NSW). 2. Further, in Betzis v Commissioner of Police [2020] NSWCATAD 71 at [31] (Betzis), the Tribunal stated: The pensive information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interest in favour of or against disclosure before refusing access to it and the tribunal is precluded from considering the public interest test in relation to that information". 1. Accordingly, the Tribunal should find that the email chain is subject to legal professional privilege. Applicant's written submissions 1. The applicant filed written submissions on 25 July 2022, which largely repeat the assertions contained in his statement (Ex A), However, he also made submissions to the effect: 1. With respect to item 4 of the GIPA request, he said that because all of the informants were employed, none would be contactable during working hours or use their personal phones, so "presumably" their preferred mode of communication would be by email. On that basis, he has reasonable grounds to believe that further emails exist and these could be located if the respondent undertook specific searches. 2. With respect to item 7, DSC Kirkwood gave evidence during the prosecution that DNA reports exist, but neither he nor DSC Nicholls provided DNA or fingerprint reports to the defence or disclosed to the defence that these tests were conducted several months before the hearing. On that basis, he asserted that the respondent has not made reasonable searches to identify, locate and provide these documents. 3. With respect to item 14, he noted that the respondent denied access to documents in the email chain claiming public interest. He applied the public interest test to this item and argued to the effect that the decision in Hansen should be distinguished from this matter. He said that Hansen deals with disclosure of information held by the Commissioner in relation to the termination of an employee and considered the effect that disclosure would have on the NSWPF's Human Resources department. Although ultimately the Tribunal ruled in favour of non-disclosure, it found that the public interests in favour of disclosure were that the document contained personal information of the applicant and disclosure could reasonably be expected to promote accountability and transparency in the exercise of the NSWPF's Human Resources functions in relation to Senior Executives. The facts in this matter are different to those in Hansen and in this matter, he public interest considerations in favour of release of the information outweigh those against release. 4. The applicant also alleged that there are numerous indicators of a negligent or improper investigation by and/or unlawful conduct of by the relevant police and he set out seven examples of this alleged conduct. However, In my view, these allegations are not relevant to the current dispute under the GIPA Act and I have not included them in this decision. However, he disputed the claim for legal privilege over the email chain on the basis that DCI Ainsworth is an employee, and not a client, of the respondent. 5. With respect to item 18, the applicant disputed that reasonable searches were made for duty books and notebooks He asserted that if the respondent claims that body camera footage was taken, instead of using duty books or notebooks, that video footage "should be regarded as electronic notes" and released in full. He also complained that DSC Nicholls, the lead investigator, had not provided a statement. 1. Accordingly, the applicant argued that the Tribunal should direct the respondent to locate the missing documents relating to items 4, 7 and 18 and set aside the decision to deny him access to the documents sought in item 14. Respondent's supplementary Submissions 1. On 2 September 2022, the Tribunal received the respondent's supplementary submissions, which were filed pursuant to the Tribunal's orders dated 4 August 2022. 2. The respondent stated that after his previous submissions were filed, he filed and served the evidence of Detective Superintendent Carey (Ex 1), the second affidavit of S/S Twyman (Ex 6); and the third affidavit of S/S Twyman (Ex 7). He confirmed that the items in dispute are items 4, 7, 14 and 18 of the GIPA request. 3. The respondent argued that the evidence adduced at the hearing supports his position that he has undertaken all reasonable searches in relation to item 4, and that applicant has not identified any basis to believe that he holds any further documents within the scope of that item. The remaining items in dispute are limited to items 4, 7, 14 and 18. 4. The respondent replied to the applicant's written submissions as follows: Offer to pay reasonable costs 6 As referred to in the Applicant's Submissions (at [15]), in Smith v Commissioner of Police [2012] NSWADT 85, 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 they documents of the agency; and if so, (b) Have the search efforts made by the agency to locate such documents been reasonable in all the circumstances of a particular case. 7 Applying the test referred to above, the Tribunal is not required to consider whether it is possible for an agency to locate documents within the scope of an information request by, for example, reviewing every single document in a particular inbox. Rather, the test requires the Tribunal to determine whether "the search efforts made by the agency to locate such documents been reasonable in all the circumstances of a particular case". 8 In the Respondent's submission, it is simply not reasonable for the Respondent to have assigned, or to assign, someone to conduct a manual review of all emails sent to and from the four relevant individuals to identify any emails falling within the scope of item 4. That is particularly the case in circumstances where: a. section 53(3) of the GIPA Act provides that the Respondent is not required to conduct searches that would require a "substantial and unreasonable diversion of the agency's resources"; b. the Applicant never suggested the Respondent conduct such a comprehensive and manual search (or that he would pay any costs associated with such a search) until during the hearing of these proceedings – more than 15 months after his original application under the GIPA Act; c. while Senior Sergeant Twyman, when asked if the Applicant could pay the expenses of a search, said that "I am aware it can be done", there is no evidence that the Respondent has sufficient resources available to perform the review proposed by the Applicant even if he were to pay for it or that it would otherwise be reasonable for the Respondent to conduct such a search; and d. the Applicant has not identified any reasonable basis to believe that reviewing all emails between the officers identified in item 4 would identify any emails beyond those already identified and disclosed to the Applicant. In particular, the Applicant has failed to identify any key words that could reasonably be expected to be included in any emails falling within the scope of item 4 that have not already been the subject of searches by Senior Sergeant Mark Twyman. 1. The respondent stated that the applicant's chronology (at paras [20] - [35]) and the evidence of S/S Twyman, highlight that he has taken reasonable steps to conduct further searches in response to matters raised by the applicant during these proceedings (i.e. searches using additional search terms) 2. The respondent also noted that in his submissions dated 29 April 2022, specifically Annexure 3, the applicant alleged that he had failed to identify an email dated 30 June 2019 from DSC Nicholls to DSC Kirkwood and that this was sent at 3.10pm. However, the email was actually sent at 8.52pm and this error contributed to him not identifying the missing email until after S/S Twyman had read the applicant's statement. 3. The respondent argued that the fact that he identified and released documents within the scope of item 4 over a period of time does not give rise to any reasonable belief that he holds more documents that have not been identified. If this was the case, every time an agency identified additional information falling within the scope of a GIPA request, it would create an inference that more documents exist. That proposition cannot be correct and it should not form a basis for finding that there are reasonable grounds to believe that further documents exist. In any event, the applicant has established any reasonable grounds for his assertion that further documents exist. 4. In relation to the second limb of the reasonable search test in Smith, the applicant submits (in relation to Ex 7), "the search parameters or the electronic retrieval system are deficient, and instead what is required is a review of the emails themselves identified in paragraph 10 and 11". However, there are two problems with this submission: 1. While asserting that "the search parameters or the electronic retrieval system are deficient", the applicant has not identified how they are deficient in any meaningful way; and 2. The Applicant's proposal is unreasonable because it: 1. proposes a time-consuming manual review of approximately 3,4376 emails referred to in paragraph 10 of Ex 7; and 2. fails to identify any reasonable and appropriate search parameters that could be applied to identify relevant emails in the Vault (such as keywords). 3. Finally, to the extent that the applicant suggests (at [42]), that searches of the Vault should be undertaken for emails which DSC Kirkwood "deleted" or "cleared", the evidence of S/S Twyman is that his searches captured emails that DSC Kirkwood "deleted" or "cleared" from his email inbox. 1. Therefore, the Tribunal should reject the applicant's contention regarding the sufficiency of his search for emails falling within Item 4, and find that: (1) there are no reasonable grounds to believe that the requested documents exist; and (2) search efforts to locate such emails have been reasonable in all the circumstances of the case. 2. With respect to item 14 (the email chain), the respondent conceded that he did not claim legal professional privilege or invoke s 14(1) and cll 5 and/or 5A of Sch 1 of the GIPA Act in the Original Decision or the Internal Review Decision. This was because the claim for legal professional privilege under cl 5 of sch 1 was made on 6 July 2022, when the email chain was identified as being within the scope of Item 14 of the GIPA request. He disputed the applicant's assertion that he first claimed legal professional privilege on 1 August 2022. 3. The respondent said that he does not oppose the Applicant's request that the Tribunal inspect the Failed Prosecution Report and the Email Chain, provided that the documents are inspected having regard to the Ex 1 and Ex 4. There has not been any waiver or loss of legal professional privilege with respect to the Email Chain. 4. The respondent conceded that if the Tribunal finds that cll 5 and 5A of Sch 1 of the GIPA Act do not apply to the email chain, the fact that this relates to the applicant is a factor that would weigh in favour of disclosure. However, that is only one factor in favour of disclosure and any disclosure has the potential to undermine deliberative processes for the reasons addressed at para 26 of Ex 4. 5. Accordingly, the Tribunal should find that the email chain is subject to legal professional privilege and is not required to be disclosed to the applicant. 6. With respect to item 7 (DNA), the applicant raised (at paras [60] to [63] of his Submissions), a number of matters in relation to the conduct of the criminal investigation and prosecution. However, those matters are not relevant to the issues in dispute in this matter. 7. The evidence of DSC Kirkwood (Ex 3 and his oral evidence) is to the effect that all documents within the scope of Item 7 have been identified and disclosed to the applicant. In particular: (1) DNA-related records are referred to as identified and disclosed in paragraph [27] and [29] of the Ex 3); (2) the Respondent identified and disclosed "Forensic Results Summary – 138452002", which contains all analysis results for the relevant investigation; and (3) there is no other "complete version of the DNA reports". 8. In relation to item 18 (Notebooks), the applicant submits (at para [67] of his Submissions) that "body-worn evidence… must exist as, on the evidence of DSC Kirkwood at the Hearing, it is used in place of notebooks…" However, there are problems with this submission: 1. The scope of the item does not include body-worn video nor any other form of video; and 2. DSC Kirkwood did not give evidence (either in Ex 3 or orally) as to what body worn video or other video evidence was or was not created in the course of the investigation and there is no evidence that any such footage was created. 1. Accordingly, the respondent argued that the evidence clearly supports a finding that he identified and disclosed all documents within the scope of Item 18, and it is open to the Tribunal to find, to the extent necessary, that any information that would otherwise be expected to be included in a police officer's notebook, was entered directly into COPS and has been disclosed to the Applicant in COPS Event 1384521002 and Case Report C70596644. Consideration Legal principles 1. The legal principles under consideration are not in dispute. 2. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision". 3. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states: 63. Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) 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. 1. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55]. The GIPA Act 1. In respect of access applications, s 9(1) of the GIPA Act relevantly provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. 1. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below. 2. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 3. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies". 4. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure. 5. In Flack and Hurst, the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information. 1. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13. 2. Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) 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. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. 1. Clause 1(1) of sch 1 of the GIPA Act provides: 1 Overriding secrecy laws (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence - I note that the s 169A of the Police Act and cl 54 of the Police Regulation are listed as overriding secrecy laws. 1. Further, cl 5 of sch 1 of the GIPA Act provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 1. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech at [25]. 2. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows: 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. Section 55 of the GIPA Act refers to "personal factors" that may be brought into consideration with respect to an agency's determination of whether there is an overriding public interest against disclosure of information. This provides: 55. Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section— (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14. 1. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made "to the world". 2. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru). Matters in dispute 1. I am satisfied that the following matters are in dispute and must be determined: 1. Whether the respondent holds any further information within the scope of items 4, 7, 11, 14 and 18 of the GIPA request: s 58(1)(b). This is a dispute regarding the reasonableness of searches conducted by the respondent: s 53 of the GIPA Act; 2. Whether there is an overriding public interest against disclosure of the documents sought in item 14 of the GIPA request; and 3. Whether the information held in response to item 18 is already available to the applicant: ss 58(1)(c) and 59. (1) Whether the respondent holds any further information within the scope of items 4, 7, 11, 14 and 18 of the GIPA request 1. In my view, both the extensive affidavit evidence of S/S Twyman (Ex 5, Ex 6 and Ex 7) and his oral evidence, which was not significantly challenged on cross-examination by the applicant and the affidavit evidence of DSC Kirkland (Ex 3) and his oral evidence, overwhelmingly support a finding that the respondent conducted extensive searches in an attempt to locate the information that was sought and was within the scope of items 4, 7, 11, 14 and 18 of the GIPA request. 2. It follows that I am satisfied that the respondent conducted reasonable searches as required by s 53 of the GIPA Act. (2) Whether there is an overriding public interest against disclosure of the documents sought in item 14 of the GIPA request 1. I am satisfied that the email chain sought in this item is subject to a conclusive overriding public interest against disclosure within the meaning of s 14(1) of the GIPA Act, as it "would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege)". 2. I also accept the respondent's submissions that a document is privileged from production in legal proceedings if it is: (1) a confidential communication between a client and a lawyer, or between two or more lawyers acting for a client, for the dominant purpose of the lawyer, or one or more lawyers, providing legal advice to the client (known as legal advice privilege); and (2) a confidential communication between a client and another person, or between a lawyer acting for the client and another person, that was made for the dominant purpose of the client being provided with legal services relating to an Australian or overseas proceeding, or an anticipated or pending proceeding, in which the client is or may be, or was or might have been, a party (known as litigation privilege). 3. I note the in Campbell, the Tribunal decided that the written advice of a police prosecutor (in that case a Senior Sergeant who was not a solicitor) was capable of attracting legal professional privilege on the basis that the police prosecutor is an agent of their Commander of the PCC, Superintendent Heyward (an admitted solicitor in NSW). 4. In this matter, I am satisfied that the Failed Prosecution Report and the email chain, and each email within that chain, are confidential communications that attract both legal advice privilege and litigation privilege. 5. Based upon the evidence of C/I Norton, which was not challenged by the applicant, I am satisfied that that purpose of completing the Failed Prosecution Report was to record the reasons for the failure of a prosecution so that the PCC (and the NSWPF more generally) can identify deficiencies in the matter that required reporting to the Command for their attention and to learn from any failures that resulted in a withdrawn or dismissed prosecution, in the interests of continuous improvement in the delivery of legal services on behalf of the State of NSW. 6. C/I Norton stated that where a Failed Prosecution Report is prepared in relation to, but after the withdrawal of criminal proceedings, it is necessarily preceded by a deliberative process between the police prosecutor and a relevant decision-maker (usually the relevant Crime Manager at a Police LAC or Police District), which involves the seeking and giving of advice and opinions on a proposed withdrawal. As a result, such a report ordinarily includes, either explicitly or implicitly, advice and opinions or the outcome of that advice or those opinions given in that deliberative process. 7. C/I Norton stated that the disclosure of the Failed Prosecution Report could seriously undermine deliberative processes undertaken by the NSWPF by revealing the reasons why a prosecution was withdrawn and thereby: (1) revealing the kinds of issues that can prejudice a successful prosecution, which those with criminal intent, or under criminal investigation, could seek to utilise to circumvent or weaken the NSWPF's enforcement of the law; (2) discourage those seeking approval to withdraw a prosecution, or those who are preparing a Failed Prosecution Report, from writing openly (and thereby encouraging such decisions to be based on verbal decisions which are not recorded in writing or to not otherwise fully articulate their advice and opinions; and (3) prejudicing future deliberative processes in relation to similar decisions on whether or not to withdraw criminal proceedings. 8. In view of my findings on the Failed Prosecution report, it is not necessary to consider the application of the secrecy provisions in s 169A of the Police Act and cl 54 of the Police Regulation to this report. 9. In relation to the email chain, I am satisfied based on the evidence of C/I Norton that these documents are confidential communications between police prosecutors (acting as agents for a lawyer, Superintendent Heyward) and a client (DCI Ainsworth), which were created for the dominant purpose of providing legal advice and in relation to legal proceedings (the prosecution of the applicant. 10. The applicant's arguments in favour of the disclosure of the email chain based on the public interest test, are contrary to the decision in Betzis, in which the Tribunal stated at [31]: The pensive information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interest in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information. 1. For these reasons, I am satisfied that there is an overriding public interest consideration and/or a conclusive presumption against disclosure of this information. (3) Whether the information held in response to item 18 is already available to the applicant: ss 58(1)(c) and 59. 1. In relation to this item, I accept the evidence of DSC Kirkwood, to the effect that all reasonable searches have been conducted and that all information that responds to this item has previously been disclosed to the applicant, either as part of the prosecution brief or under subpoenas issued by his solicitors during the prosecution proceedings. 2. In my view, the available evidence supports a finding that the requirements of ss 58(1)(c) and 59(1)(d) have been satisfied. 3. Further, as the respondent gave the applicant notice about why he believes the information is already available to him and, if necessary, how he can access the information, in his decision dated 5 April 2022, s 59(2) of the GIPA Act has been satisfied. 4. I am also satisfied, based on the available evidence, that the redactions made by the respondent to information that has been released to the applicant are appropriate under cll 3(a) and 3(b) of the table to s 14(2) of the GIPA Act as disclosure would infringe the provisions of the PPIP Act. Conclusion 1. For the reasons set out previously, I am satisfied that the correct and preferable decision is to vary the respondent's decision dated 5 April 2022, so as refuse access the information sought in item 14 of the GIPA request on the basis that there is a conclusive presumption against its disclosure pursuant to cll 1(1) and (5) of the GIPA Act. Otherwise, the respondent's decision is affirmed. Orders 1. Pursuant to s 63(3)(b) of the Administrative Decisions Review Act 1997 (NSW), the respondent's decision dated 5 April 2022 is varied as follows: With respect to item 14 of the GIPA request, access is refused on the basis that there is a conclusive presumption against disclosure pursuant to cll 1(1) and (5) of the GIPA Act. 1. The decision is otherwise affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2022