Appeal Panel CITATION: Beesley -v- Commissioner of Police, New South Wales Police Service (GD) [2001] NSWADTAP 8 APPLICANT PARTIES: Terrence Beesley RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 009039 HEARING DATES: 16/02/01 SUBMISSIONS CLOSED: 02/16/2001 DATE OF DECISION: 03/23/2001 B -v-Commissioner of Police, New South Wales Police Service DECISION UNDER APPEAL: BEFORE: Hennessy N (Deputy President); Robinson MA - Judicial Member; Bolt M - Member CATCHWORDS: no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 003036 DATE OF DECISION UNDER APPEAL: 10/19/2000 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Neal v Department of Transport (1980) 29 ALR 350 McPhee v S Bennett (1934) 52 WN (NSW) 8 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 Livesey v New South Wales Bar Association (1983) 151 CLR 288 CASES CITED: Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 R v Simpson; Ex parte Morrison (1983) 154 CLR 101 S & M Repairs v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 Eastman v Somes (No 2) (1992) 27 ALD 525 APPLICANT REPRESENTATION: In person RESPONDENT M Tzannes, barrister ORDERS: 1. Appeal dismissed.; 2. Decision of Tribunal made on 19 October 2000 is affirmed. Introduction 1 This is an appeal to the Appeal Panel of the Administrative Decisions Tribunal by Mr Beesley. The appeal is against a decision of the Tribunal on 19 October 2000 which affirmed a decision of the Commissioner, NSW Police Service (the Commissioner). The Commissioner's decision was to decline a request for access to certain documents including video tapes under the Freedom of Information Act 1989 (FOI Act) on the basis that the agency did not hold any such documents. 2 The decision given by the Tribunal on 19 October 2000 was made following a preliminary decision by another member of the Tribunal on a jurisdictional issue. That issue was whether, in terms of s 53(1) of the FOI Act, a determination that no further documents are held by an agency is a "determination made by an agency or Minister under section 24", and whether the applicant is "a person who is aggrieved by" such a determination in terms of s 53(3). These questions were determined in favour of Mr Beesley and the matter was listed for hearing on the substantive question of whether the search undertaken by the Police Service in response to Mr Beesley's FOI application was "a sufficient one in all the circumstances." (See Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 (3 May 2000) Appeal Panel's jurisdiction 3 The Appeal Panel has jurisdiction to hear this matter pursuant to s 113(1) and (2) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Those provisions state that: (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. 4 An "appealable decision" is defined in s 112 (1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for: (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or (b) a review of a reviewable decision. (2) Without limiting subsection (1), the following decisions are also appealable decisions: (a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or (b) an order of the Tribunal under section 71 (2) that the parties to proceedings before it may not be represented by an agent of a particular class, or (c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal. (3) A decision of an Appeal Panel is not an appealable decision for the purposes of this Part. 5 In this case, the appealable decision is the decision made in proceedings for review of a reviewable decision, namely the Tribunal's decision of 19 October 2000. Decision under Appeal 6 The decision under appeal was given ex tempore at the conclusion of the hearing. The decision sets out the background to the dispute and the conduct of the hearing. Relevant sections of the decision, namely paragraphs 14-22 and 25 and 26, are set out below: 14 I am satisfied that the agency has undertaken a reasonable search of its records. While the applicant no doubt will remain convinced otherwise, I consider that the agency has been most responsive in its approach to dealing with this request. 15 It has done a name search (including a range of name variations) against all its operational computer databases. It has also undertaken manual searches of all dossiers held in the Special Branch record system, a system which is now strictly managed. The Special Branch has been abolished, and its old records have been retained primarily with a view to facilitating FOI requests. In this case manual searches were done of all videos held in the Special Branch record system. In undertaking the dossier searches, the relevant titles were searched. 16 A document by document search within each dossier was not attempted. The Tribunal was informed that voluminous records were held going back to the late 1930s. The titles on the sides of videos were inspected. None of these searches turned up any reference to the applicant. The witnesses were cross examined by the applicant as to whether there would be other forms of search (for example, against coded descriptions of file categories) that could have been undertaken in relation to his request. I am satisfied from their answers that there could not have been. 17 The extent of the searches undertaken by the agency ultimately was wider than that initially undertaken, seeking to respond to information given by the applicant at earlier case conferences and directions hearings. I consider that the efforts taken by the Police Service in this matter have been exemplary. 18 The applicant remains, I expect, dissatisfied. He believes that if there were more wide-ranging searches conducted the material which he believes continues to dog his life would be found. 19 In his various written submissions and in cross-examining the agency witnesses he asked why searches had not been conducted of other databases to which the agency may be linked, such databases as that sometimes called NEPI (the National Police Exchange of Information) and that sometimes called LEAN (Law Enforcement Access Network). 20 In his closing submissions he referred at some length to the issue of when it can be said that an agency holds a document. As I understood the thrust of his submissions he was seeking to assert that a document held in the NEPI or LEAN environment could still be said to be a document held by any participating agency. If the NSW Police Service is a participating agency and there is a document in one of these environments (which he called centralised databases or 'cybermediated' ones) then that could be said to be a document of the agency. Therefore it followed that in order for there to be an adequate search in relation to a request those environments should also have been searched by the agency in this instance. 21 The issues raised by the applicant are ones of some importance to the operation of access to information laws in Australia, whether FOI laws or Privacy laws. But this is not the occasion to explore those issues. 22 In this instance the agency has searched all the databases under its administration that might be relevant to the applicant's request. No reference to any material of the kind the applicant claims exists has been found. In these circumstances it would not be reasonable for it to be asked to extend its search to other national databases in which it may be a participating agency. 25 I am satisfied that there is no need for the agency to undertake any further searches; and that the finding can be made that the agency holds no other document relating to the applicant than those which it has already made available. 26 The application for review is dismissed. The decision of the agency is affirmed. Documents before the Appeal Panel 7 The following documents were before the Appeal Panel: o decision of Tribunal in B v Commissioner of Police, New South Wales Police Service [2000] NSWADT 168; o Notice of Appeal dated 15 December 2000, including 4 folios of handwritten submissions; o Notice of Reply to Appeal, filed on 1 February 2001; o respondent's submissions filed 1 February 2001; o supplementary submissions filed by the appellant on 16 February 2001; o appellant's submissions in the original Tribunal proceedings dated 19 October 2000 (17 folios); and o respondent's submissions in the original Tribunal proceedings dated 2 August 2001. 8 Mr Beesley agreed that his most recent submission of the 16 February 2001, superseded his original submissions attached to the Notice of Appeal. Neither party sought to tender the transcript of the Tribunal proceedings or any of the evidence tendered in those proceedings. Three errors of law alleged 9 On the basis of documents filed by Mr Beesley and oral submissions, it became clear during the course of the hearing that the Mr B was submitting that the Tribunal had made three errors of law. The first was that the Tribunal had misconstrued the FOI Act in relation to the meaning of the words documents "held" by an agency. The second was that the presiding member was biased in that he unjustifiably commended the Police Service for their "exemplary" efforts. The third error alleged by Mr Beesley was that the Tribunal had not reversed the onus of proof by expecting Mr Beesley to prove that the Police Service had not conducted an adequate search rather than requiring the agency to prove that they had conducted an adequate search. 10 Each of these submissions will be discussed in turn below. Meaning of "document that is held by the agency" 11 Appellant's submissions. Mr Beesley's submission about the construction of certain provisions in the FOI Act was based on his understanding, expressed in his original submissions to the Tribunal at page 11, that: The NSWPS is one of the authorised agencies having access to LEAN. They have a right and power 'to deal with' the documents called up through LEAN. Consequently they have constructive possession and control. Accordingly, cybermediated documents are documents of the agency and I submit should be available under the FOI Act. 12 In Mr Beesley's submission, the Tribunal's first error was to misconstrue the meaning of s 6(1) of the FOI Act. That provision defines "agency's documents" to mean "a document that is held by the agency." Section 16 of the FOI Act states that: A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act. (Emphasis added) 13 The FOI Act s 6(1) defines "document" to include (a) any paper or other material on which there is writing or in or on which there are marks, symbols or perforations having a meaning, whether or not that meaning is ascertainable only by persons qualified to interpret them, and (b) any disc, tape or other article from which sounds, images or messages are capable of being reproduced. 14 Section 23 of the FOI Act relates to information stored in computer systems. That section states that: If: (a) it appears to an agency that an application relates to information of a kind that is not contained in a written document held by the agency, and (b) the agency could create a written document containing information of that kind by the use of equipment that is usually available to it for retrieving or collating stored information, the agency shall deal with the application as if it were an application for a written document so created and shall be taken to hold such a document. 15 Under s 6(2)(e), a reference to a document "held by an agency" includes a reference to: a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency 16 Mr Beesley submitted that the effect of these sections was that the word "held" in s 6(1) did not have its ordinary meaning. According to Mr Beesley, the Tribunal misconstrued the relevant statutory provisions of the FOI Act in determining which documents were the subject of his application. Mr Beesley submitted that: By ignoring the effect which should be given to the word "held" and the ramifications for access to "joint access networks", (See para 21 - Reasons for Decisions) the ADT erred in law." 17 In Mr Beesley's submission, although the meaning the word "held" is a question of fact, the proper construction of a statutory provision is a question of law, even though it may require the meaning of the words to be ascertained. (Shepphard J in Neal v Department of Transport (1980) 29 ALR 350.) 18 Respondent's submissions. The respondent submitted that no error of law has been disclosed because the construction of a statute and the ordinary words used in a statute is a question of fact. The words "document" and "held" are not ambiguous. Once there is evidence that no document fitting the description of the document sought by Mr Beesley could be found, then it was open to the Tribunal to find that there was no document "held" by the agency. The Tribunal found at paragraph 25 of the Reasons for Decision, that ". . . the agency holds no other document relating to the applicant than those which it has already made available." According to the respondent, "This is sufficient to give effect to the plain meaning of the word 'held' and the extended definition of the word 'document'." 19 Appeal Panel's reasoning and findings. In submissions and in cross examination of witnesses, Mr Beesley alluded to the existence of centralised or cybermediated data bases which were not under the direct administration of the Police Service. Mr Beesley's submission in relation to the construction of the FOI Act is based on his contention that the Police Service have access to such data bases and that the Tribunal erred in law by ignoring the effect of the FOI Act in relation to those data bases. 20 Mr Beesley stated in his written submission to the Appeal Panel that LEAN was "one of the data bases stated as having been checked." Neither the transcript, nor the witness statements were before the Appeal Panel. The Tribunal did not make a finding that such data bases existed or that the Police Service had access to them in the present case. Consequently, the Tribunal's comments in relation to Mr Beesley's submission that information on such data bases were "held" by the agency, (at paragraph 25 of the Reasons for Decision) were made in response to the appellant's contentions and, based on the findings of fact of the Tribunal set out above, they did not form part of the findings on which the decision was based. Therefore no error of law is established on this ground. 21 However, we agree with the Tribunal's comments that appear at paragraph 21 of the Reasons for Decision concerning the importance of the issues raised by the appellant and we consider that in an appropriate case, there is no reason why the Tribunal would not apply the full force and effect of s 23 of the FOI Act in relation to such external databases, were they found to exist in the relevant context of a particular case. This is not that case. Burden of proof 22 Appellant's submission. The second error of law that the appellant contended that the Tribunal had made was to reverse the onus of proof. The obligation under s 61 of the FOI Act is that: In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister. 23 Mr Beesley maintained that the onus was on the Police Service to provide evidence that they conducted an adequate search. In his view, they failed to do so. 24 Respondent's submission. Whether or not a party has satisfied its onus of proof is a question of fact. ( McPhee v S Bennett (1934) 52 WN (NSW) 8; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 at 155-156. 25 Appeal Panel's reasoning and findings. Mr Beesley was not able to point to any evidence to support his contention that the Tribunal had reversed the onus of proof. We agree with the respondent's submission that the Tribunal listened to the evidence in chief and the cross examination of three witnesses and was satisfied that the respondent had satisfied its burden of proof. Even if the weight of evidence is against the finding that the Tribunal made there is still no error of law. ( McPhee v S Bennett (1934) 52 WN (NSW) 8; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 at 155-156.) Bias 26 Appellant's submission . The third error of law alleged by the appellant was that the Tribunal was biased. In support of this submission, the appellant quoted paragraph 17 of the decision where the Tribunal stated that: "I consider that the efforts taken by the Police Service in this matter have been exemplary." Mr Beesley interpreted the words "this matter" to be the response of the Police Service from the point of the initial FOI application. He referred to instances where he alleged that the Tribunal had failed to enforce directions, consistently given the Police Service the benefit of the doubt and upheld objections to questions asked by Mr Beesley in cross examination. 27 Respondent's submissions. The statement in paragraph 17 of the decision, quoted above, relates to the extent of the search, not the conduct of the matter in its entirety. The Tribunal's remark was a rare case of commendation. It is a reflection of the Tribunal's belief that the Police Service went to great lengths in attempting to satisfy Mr Beesley's FOI application. The comment is not evidence of any pre-judgement of the matters in issue. 28 Tribunal's reasoning and decision. The test to be applied in relation to the appellant's allegation of bias is whether a suspicion may reasonably be engendered in the minds of the public, that a member of the decision-making body may not bring to it a fair and unprejudiced mind. ( Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re Polites; Ex parte Hoyts Corp Pty Ltd (1991) 173 CLR 78 at 86; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 419 per Kirby P.) The test is an objective one. This means that the mere claim that there is an appearance of bias does not establish that a reasonable apprehension of bias exists. It is necessary that the circumstances raise a substantial case. ( R v Simpson; Ex parte Morrison (1983) 154 CLR 101 at 104 per Gibbs CJ; S & M Repairs v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 at 367-373 per Kirby P; Eastman v Somes (No 2) (1992) 27 ALD 525 at 528 per Gallop J.) 29 The Tribunal's comment that the efforts taken by the Police Service in this matter "have been exemplary" was made in the context of an observation about the extent of the searches undertaken. The commendation does not relate to every aspect of the conduct of the matter before the Tribunal. Even if the words could be interpreted as blanket praise of the Police Service, they were made in the decision itself, after the Tribunal had weighed the evidence and the submissions and come to a conclusion. For that reason, the comment would not engender in the minds of the public, a suspicion that the Tribunal may not bring to the proceedings a fair and unprejudiced mind. Orders 30 As none of the questions of law identified by the appellant amount to errors of law, the Tribunal does not grant leave for the appellant to extend the appeal to a review of the merits of the decision. The Appeal Panel makes the following orders: 1. The appeal is dismissed 2. The decision of the Tribunal dated 19 October 2000 is affirmed. 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.