Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rivero v Commissioner of Police, NSW Police Force [2019] NSWCATAD 115 Hearing dates: 9 March 2019 Date of orders: 12 June 2019 Decision date: 12 June 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – Government Information – audit report - personal information – access to information about an individual by the individual - whether prejudice to an agency's functions Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Cases Cited: Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 (1979) 46 FLR 409 RT v Commissioner of Police, NSW Police [2005] NSWADT 270 Category: Principal judgment Parties: Shannon Rivero (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: S Rivero (Applicant in person) Solicitors: Crown Solicitor (Respondent) File Number(s): 201800249425 Publication restriction: Nil Reasons for Decision Introduction 1. Mr Shannon Rivero ("the Applicant") has applied to the Tribunal for review of a decision by the Respondent in response to an application for access to information under the Government Information (Public Access) Act 2009 ("the GIPA Act"). 2. In his access application the Applicant requested: All complete written/ and or electronic information from the NSW firearms registry and NSW Police from 1-01-2006 - 16-01-2018 Information to include COPS, CAD, Email Correspondence, Computer Records, Notebook Entries 1. The reference to COPS is a reference to the Respondent's Computerised Operational Policing System ("COPS"). After an initial deemed refusal, the Respondent ultimately provided a supplementary determination and a further supplementary determination. It determined to: 1. to refuse access to certain information; and 2. to refuse to confirm or deny that the it holds certain information. 1. The Respondent found that there is an overriding public interest against disclosure of the information to which access has been refused, and that there is an overriding public interest against disclosing information which confirms or denies that the Respondent holds certain other information. 2. The Applicant initially challenged the sufficiency of the searches that the Respondent had undertaken and sought access to the withheld information. He asserted that he is aware that the Respondent holds other unidentified information because it relates to him and he signed it. 3. In his written submissions the Applicant identified the outstanding issues as follows: "1. The Commissioner says he can neither confirm or deny information on me as an informant as it could infringe on the safety of who was involved. As I was the only person involved in this matter and I am the one requesting the information I do not believe this decision was applicable to me. 2. The Notebook Journals for Sgt Brett Ryan are missing. This information in these Journals I would expect to be classed as official documents as people of the general public are made to sign when dealing with police. Therefore I would expect that these journals would be catalogued for a period of time greater than 10 years as they may need to be called into question like in this instance. 3. The Notebook Journals for my 2010 safe storage inspection have no relevant details. When information provided to me about my safe storage inspection in 2010 say partial or incomplete I would expect that notebook journals would tell a fuller story than what has been written on the COPS system as these details would be written in the notebook fresh on the day. 4. The Commissioner refused me in full for a copy of the audit report on who views my information under the COPS system. The Commissioner stated that he refused this in full for reasons that this may prejudice ongoing investigations. As it has been stated that there is no ongoing investigation I believe this explanation was generic and has no bearing on his decision. As I email an example of the information I was wishing to obtain I have proven that the commissioner has in the past released this information and there for has set a precedent. 1. Shortly before the hearing, the Respondent undertook additional searches for information falling within the scope of the access application. Further information was located and released to the Applicant through the further supplementary determination. The issues for consideration have been narrowed as a result of this determination. 2. At the hearing the Applicant confirmed that he was only pressing item 4 of the outstanding issues that the Applicant identified i.e. the audit report. 3. The Respondent submits that its decision in regard to the audit report should be affirmed as the correct and preferable decision. Issue to be determined 1. The issue to be determined in these proceedings is whether the correct and preferable decision is that there is an overriding public interest against disclosure of the audit report. Applicable legislation 1. The Tribunal has jurisdiction to review the Decision under section 100 of the GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 ("the ADR Act"). 2. The GIPA Act has an objects provision at section 3 which includes a reference at section 3(2)(a) that the legislation be applied so as to further those objects. of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 1. 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 of the GIPA Act, unless there is an overriding public interest against disclosure or the Respondent is otherwise entitled to refuse to deal with the access application. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: section 5. 2. Reviewable decisions may be reviewed by the Tribunal. In making its decision, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision: section 63(2) of the ADR Act. The Respondent bears the onus of establishing that the decision was justified: section 105(1) of the GIPA Act. 3. In considering an application for review the Tribunal may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 (1979) 46 FLR 409. 4. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides: (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. [Note: The following are examples of public interest considerations in favour of disclosure of information: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. 1. The Tribunal must determine whether or not the Respondent was justified in determining that there was an overriding public interest against disclosure of the information withheld. The Tribunal can affirm the Respondent's decision, set aside the decision, or parts of the decision, and order the release of the withheld information, or remit the matter to the Respondent for reconsideration. 2. Section 13 of the GIPA Act provides that there is an overriding public interest against disclosure of government information if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. In applying the public interest test under section 13 of the GIPA Act it is necessary to identify the public interest in favour of disclosure, identify the public interest against disclosure and determine where the balance lies: see discussion in Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19. 3. The Table to section 14 of the GIPA Act sets out a number of circumstances in which public interest considerations against disclosure of government information may apply and need to be weighed against the general public interest in favour of disclosure. The only public interest considerations against disclosure that may be taken into account are those listed in the Table. 4. The Respondent refused access in full to a COPS audit report on the basis that there is an overriding public interest against its disclosure. It identified clauses 1(f), 1(h) and 2(b) of the table to section 14 of the GIPA Act as relevant considerations. 5. Clause 1 of the Table to section 14 of the GIPA Act provides: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (f) prejudice the effective exercise by an agency of the agency's functions, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). 1. Clause 2 of the Table to section 14 of the GIPA Act provides: 2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (b) prejudice the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law,( The material before the Tribunal 1. The Respondent relies on written and oral submissions by its solicitor, Mr Hudson, and the affidavit evidence of Chief Inspector Matt McCarthy sworn 17 December 2018. Mr McCarthy attended the hearing by telephone. 2. Other evidence filed by the Respondent is not relevant to the remaining issue in dispute. 3. The Applicant relies on his own evidence and submissions. Chief Inspector McCarthy 1. Chief Inspector McCarthy is the Manager of the Strategic Services Unit of the Respondent's State Intelligence Command. He has had this role title since about February 2018. Prior to that he was Manager, Intelligence Directorate, within the Respondent's State Crime Command since August 2013. 2. He said that he was not personally involved in dealing with the Applicant's access application but he became aware of it when he was asked to give advice in regard to whether the requested audit report should be released. 3. He provided detailed information in regard to the use of COPS by police officers. In discharging the agency's functions individual officers are regularly required to undertake searches of the COPS system. 4. He stated that the COPS system is able to be audited. This is a corruption prevention strategy. Random audits are conducted on all officers who have access to the databases. This type of audit generates a report of all accesses to COPS made by a particular officer. 5. A different type of audit is required to produce the information that the Applicant is seeking. It is described as a "reverse audit". He seeks to determine who, if any, of the authorised users of COPS have conducted a COPS search on information about him. Such an audit report would not usually be created for any purpose other than routine auditing for corruption prevention, or as part of complaint investigation. Requests for these audits must be referred to either the Professional Standards Command, or Regional Professional Standards Managers, as local officers do not have the requisite authority or access to COPS to carry out the audit. 6. The Respondent consider that disclosure of an audit report could reasonably be expected to prejudice: 1. The effective exercise of the Respondent functions; 2. The conduct, effectiveness or integrity of investigations or reviews conducted by the Respondent by revealing its purpose, conduct or results; and 3. The prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. 1. Chief Inspector McCarthy provided evidence in support of those contentions. In his opinion the disclosure of an audit report could cause detriment to the ability of the Respondent to effectively discharge its functions by enabling persons to become aware of whether they have been, or are, under investigation by the Respondent. He outlined a number of ways in which he believes that this might be possible: 1. an Applicant could discern from the results of an audit report whether particular conduct had come to the attention of or been reported to the Respondent by making an application, or series of applications, specifying a particular date or location. 2. the release of an audit report could enable a person to deduce the nature of investigations that have or are being conducted. 3. if corrupt Police were provided with audit information and discovered that their Commander or officers attached to the Professional Standards Command have accessed their details in COPS, they could deduce that they were the subject of an internal investigation. They could warn co-offenders or dispose of evidence. 4. applicants could make regular requests for audit information to deduce if there had been a change in the number of enquiries regarding them made by Police, indicating they are have commenced, or have ceased, to be the subject of an investigation. 5. if Police were required to release audit information on the basis that there was no ongoing investigation, later refusal to release the same information would allow the Applicant to deduce that that they had come under investigation simply because of the refusal to release the information. 6. a person of interest could determine if an officer who has performed a particular search of COPS works at State Crime Command rather than a Local Area Command. This would be indicative of the level of the Respondent attention, and could be used to draw deductions as to the seriousness of the matters being investigated. 7. as the audit report lists the dates and times of an inquiry by a police officer and the exact nature of the inquiry, a person of interest can determine for how long they have been the subject of police interest, particularly if the audit report indicates Information Reports have been created on them. From these dates and times, the person of interest will be able to determine what criminal activities or enterprises have come to notice. If the person of interest suspects or identifies a pattern to the activity, they could infer a disclosure of information to police from an associate/informant which to lead to a threat to life against that associate. 1. Chief Inspector McCarthy also provided some examples to elaborate on those concerns. 2. He also believes that the information in an audit report could enable a person to ascertain ways in which to modify their behaviour, in order to disrupt future law enforcement efforts. For example: 1. a person of interest could deduce, from an audit report, that certain electronic devices in their possession are subject to interception warrants, and could dispose of those devices and/or change methods of communication; or 2. a person of interest could transfer or dispose of illegal assets upon becoming aware that these assets are subject to scrutiny. 1. Chief Inspector McCarthy also believes that the release of an audit report could compromise the supply of confidential information to the Respondent by identifying informers. An Applicant could seek an audit report for specific days or times and from the provision of information confirming their details were accessed by an officer at the relevant time could conclude that conduct only known to a particular person or persons was reported to the Respondent. This would reveal the identity of an informer. 2. He said that the Respondent relies heavily on information provided by members of the community in discharging its functions. He believes that members of the public and internal police complainants trust that the information they give in the course of criminal or departmental investigations will be kept confidential. He believes that if the public was aware that a person could be given information that may lead to them being identified as informants, members of the public would be reluctant or refuse to assist police in future investigations due to fear that they could be identified as a reporter or source. 3. He believes that if members of the community were not willing to provide that information, because their identity could be identified from the disclosure of an audit report in response to a GIPA access application, the ability of the Respondent to be able to investigate and prosecute contraventions of the law would be affected. 4. He is also of the view that the release of audit reports could lead to threats to the lives and wellbeing police officers. If a person becomes aware that their conduct has come to the attention of a particular officer, or unit within the Respondent, this could lead to officers being targeted, either for the purposes of making threats or intimidation, or otherwise seeking to corrupt an investigative process. 5. He also has concerns that release of audit reports would reveal details of confidential law enforcement methodologies, and methods of intelligence and evidence collection, having regard to the types of information that would be revealed by an audit report. As noted above, he is also concerns that if the Respondent was required to release audit information on the basis that there was no ongoing investigation, a later refusal of an application for the same type of information would allow the applicant to deduce that they had come under investigation in the intervening period between applications. 6. In addition, disclosure of the fact that a person is not the subject of an ongoing investigation, or that a particular conduct has not come to the attention of the Respondent, could be valuable information for a person undertaking unlawful activity, and could assist in their continuing efforts to evade police attention. 7. Chief Inspector McCarthy also noted that if a person believes that officers have unlawfully accessed their details on COPS they can make a complaint either to the Respondent, the Ombudsman or the Conduct Commission. 8. Under cross-examination he conceded that he is aware of one incident in which an audit report was released. However, he said that such a release was highly unusual. With this exception, his evidence was not challenged. The Applicant 1. The Applicant gave evidence but was not cross-examined. He believed that there was a personal vendetta against him. He stated that he wants the audit report to find out who has accessed his information as well as when and how often they accessed it. 2. He requires the information for another matter involving the Law Enforcement Conduct Commission. Submissions The Respondent's Submissions 1. The Respondent contends that the disclosure of the audit report could prejudice its operations. It could alert persons to the fact that they either were, or were not, under investigation by the Respondent. Applicants could determine whether, and from what command, officers were conducting enquiries about them which would prejudice the prevention, detection, investigation of contravention or possible contraventions of the law and prejudice the enforcement of the law. 2. It contends that audit information could confirm suspicions and lead to informants being identified. Audit information could also lead to the Respondent's officers being targeted, and could reveal information about ongoing investigations. 3. The Respondent accepts that there are public interest considerations in favour of disclosure in addition to those set out in section 12(1) of the GIPA Act. It accepts that disclosure of the audit report could reasonably be expected to promote government accountability and transparency in the exercise of its law enforcement functions. It also accepts that some of the information that is contained in the audit report is the Applicant's personal information. 4. However, the Respondent submits that any public interest considerations in favour of disclosure should be given minimal weight when compared to the public interest considerations against disclosure. It also submits that the public interest considerations in favour of disclosure have already substantially been met by the released information. 5. The Respondent submits the disclosure of the audit report could reasonably be expected to prejudice: 1. the effective exercise of the agency's functions (clause 1(f) of the section 14 table); 2. the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed) (clause 1(h) of the section 14 table); and 3. the prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law (clause 2(b) of the section 14 table). 1. The Respondent relies on the reasoning set out in Chief Inspector McCarthy's evidence that: 1. the ability to access COPS is of great value to operational police officers in the course of performing their duties of public safety and law enforcement. 2. COPS also contains information which has been provided to Police on a confidential basis by other agencies or members of the public. 3. searches of the COPS system are undertaken in a wide range of situations relevant to routine police functions. 4. the use of COPS by police to access and enter information is a key part of the investigatory methods employed by police in discharging their functions. 1. The Respondent submits that the disclosure of an audit report could reasonably be expected to prejudice the effective exercise by the agency of its functions in the ways, discussed in Chief Inspector McCarthy's Affidavit. It maintains this submission notwithstanding its acceptance that at least one audit report has been released. Discussion 1. As noted, the single issue that remains for determination concerns the audit report. The Respondent has identified a number of public interest considerations against release of the audit report. Chief Inspector McCarthy's evidence provides support for that position and the evidence is largely unchallenged. 2. I have been referred to the decision of Denyer v Commissioner of Police, NSW Police Force [2018] NSWCATAD 160 ("Denyer") in which a similar issue was considered. Senior Member McAteer considered an earlier Appeal Panel decision that dealt with the issue and stated at paragraph [46]: 46 [R]reference was made to the case of Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 (Barrett). Barrett concerned access to audit material from Police and looked at the terms of this type of request and the impact that it could have on both the organisation and particular investigations specifically. At paragraphs [49] – [56] the Appeal Panel observed: 49. We accept that any GIPA Act request may present a risk for a law enforcement agency that an applicant may gain a tactical advantage in relation to an ongoing investigation or in relation to any prospective investigation. The conclusive presumptions give comprehensive protection to some of the internal databases of the agency (see Sch 1, cl 7). They do not include the COPS database. 50. As has been emphasised in earlier decisions of the Appeal Panel (e.g. Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19), it is usually desirable at the outset of the weighing process required by s 13 to assess the agency's case at the systemic level as that is the way the protections given by many of the s 14 considerations are cast. However, it does not follow that the agency will succeed simply because it established that the systemic aspect of the case. The agency submissions did not cavil with that point (see para [22]). (We deal with Camilleri and this point more fully later in these reasons (see [84] ff).) 51. We are satisfied that the agency evidence established that disclosure of the information of the kind sought in this case in relation to items 1 to 5 'could reasonably be expected' to have the 'effect' of prejudicing the effectiveness or integrity of any audit by revealing its results (cl 1(h)). As to the next PICAD raised (cl 1(f)), the evidence, in our opinion, was too general and inexact, to reach any firm view as to whether such a disclosure would prejudice the 'effective exercise of the agency's functions'. We accept that disclosure under GIPA Act could have the 'effect' of prejudicing the detection of a contravention of the law, or the present or future enforcement of the law (cl 2(b)). 52. While there is a 'general public interest in favour of disclosure of government information' (s 12(1)), the weight to be given to that interest will vary significantly depending on the functions of the agency to which the access application is directed, and the character of the information. 53. In this case the agency is a law enforcement agency, and the information sought might have shed light on one admitted interaction between the agency and the applicants, and, in the applicants' view, on a second event. 54. The aspect of the request with which Inspector Sheather had the most concern was the opening words of each of items 1 to 5. They sought access to the 'computer printed audit trails of all people' who have utilised the databases for searches, of the kinds listed in items 1 to 5, over the period specified in the request. Inspector Sheather considered that to accede to any request of this kind so framed, would put at risk the security, integrity and confidentiality of the auditing processes and standards of the agency. This is a serious concern, and it was not displaced by any contrary evidence or challenge. 55. A more narrowly expressed request and one that had, perhaps, been confined to a narrower time period might not have given rise to such strong concern, for example one directed to investigator searches of the number plate, driver's licence, home address search functions. But this request was, as we see it, widely framed, and a request that uses terms such as 'computer audit trails' opens up the issues of reach and effect on the organisation's audit practices raised by Inspector Sheather. He explained in his statement that there are processes and functionaries on the audit side of the agency's functions whose work would be compromised by a positive response to a request of this kind. 56. The PICAD to which we attach significant weight is that disclosure might reasonably be expected to the effect of prejudicing the conduct or integrity of audit functions of the agency. 1. At paragraphs [76] - [77] of Denyer Senior Member McAteer stated: 76 In my view, the principles in Barrett carry significant weight to the Clause 1 (f), 1 (h) and 2 (b) grounds. The fact that the information could reasonably be expected to have the stated effect is clear from the unchallenged evidence of Chief Inspector McCarthy. 77 Whilst the applicant might have suspicions that he was subject to unauthorised scrutiny and was also subject to 'information grazing' or unauthorised searches by colleagues with access to the system, that does not mean that this occurred. The applicant would need to provide evidence sufficient to establish that the significant weight which I give to the cl 1 (f), (h) and 2 (b) grounds should diminish. 1. I agree with the position taken by Senior Member McAteer in Denyer. I have reached the same conclusion in this matter. 2. In my view, significant weight is to be given to the clause 1(f), 1(h) and 2(b) considerations against release of the audit report. I am satisfied that the release could reasonably be expected to have the stated effects that Chief Inspector McCarthy identified. 3. I agree with the identified public interest considerations in favour of disclosure. However, in the circumstances of this matter it is my view that the weight to be given to those considerations is less than the weight to be given to the considerations against disclosure. 4. I have been referred to views that I expressed in RT v Commissioner of Police, NSW Police [2005] NSWADT 270 – a matter brought under the Freedom of Information Act 1989. The views that I expressed in that matter are consistent with the position taken in Denyer and Barrett. In RT v Commissioner of Police I referred to protection offered in regard to the ongoing effectiveness of the methods adopted by the police and other government agencies in preventing, detecting, investigating or dealing with breaches of the law. At paragraph [35] I noted that the basis of the exemption was "a public interest in law enforcement agencies being able to maintain the integrity of their investigatory methods". That public interest is consistent with the view that I have formed in the circumstances of this matter. 5. I agree with the Respondent that disclosure of the audit report could reasonably be expected to prejudice the: 1. effective exercise of the Respondent's functions; 2. conduct, effectiveness or integrity of any audit, test, investigation or review; and 3. prevention, detection or investigation of a contravention or possible contravention of the law or prejudice the enforcement of the law. 1. It is not necessary that the Respondent establishes that this expected prejudice is in relation to the Applicant. 2. In my view, the public interest considerations against disclosure of the audit report outweigh those considerations in favour of its disclosure. That being the case, the decision to refuse to release the audit report is the correct and preferable one and should be affirmed. Orders The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2019