CITATION: Robinson v Commissioner of Police, NSW Police [2006] NSWADT 333 DIVISION: General Division APPLICANT PARTIES: Arthur Robinson RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 063002 HEARING DATES: 11/08/06 SUBMISSIONS CLOSED: 08/11/2006 DATE OF DECISION: 11/27/2006 BEFORE: Pearson L - Judicial Member CATCHWORDS: access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 Robinson v Commissioner of Police, New South Wales Police Service [2003] NSWADT 245 APPLICANT In person REPRESENTATION: RESPONDENT R Burdick, agent ORDERS: Decision under review affirmed. REASONS FOR DECISION 1 On 17 October 2005 the applicant applied under the Freedom of Information Act 1989 (the FOI Act) for access to documents in the following terms: Cood you please give all documents wot the police have of me and all wot the police have of me two and cood I have the complaint conciliation from Sutherland police date 9 April 1996 Oyster Bay and wot was said at my door in 2000 and wot the police are investigating me and the information two of me and everything of me. 2 On 17 November 2005 the respondent advised the applicant as follows: After conducting a search of our records, we have ascertained that your application covers documents previously supplied to you in response to FOI Applications 10003, 22930, 30595, 36090 and 55118. Further, our records indicate that your request concerning a conciliation form on 9 April 1996 was addressed in FOI File No. 22930 and 30595 with a Nil find. The intention of the legislators in respect of the Act was to allow the public to obtain greater access to information concerning the inner workings of government agencies. However, it is our view that the Act is not intended to facilitate duplicate requests for documents if such documentation remains static (unlike, for instance, records held on the Computerised Operational Policing System ("COPS"), which change with the circumstances of the person concerned), as the receipt and administration of such requests would frustrate the timely process of initial requests for information. In response to this application, a search was carried out on the New South Wales Computerised Operational Policing System and printout obtained. I have only addressed documents not previously supplied and I have subsequently been provided with the following documents: 1.Event No. E 24683076 dated 12/09/2005 (2 pages) 2.Information report I 16971760 dated 10/04/2003 (1 page) I have examined the abovementioned documents and determined, this date, to release them in full. 3 The applicant requested internal review on 24 November 2005, stating: I did not get me all document from the police one wot the police saw me in 2000 and wot the police gave me a hard time at Governor Macquarie Tower wich I did … a complaint befor I weas refused and I do not have the complaint conciliation form I wood lick to no how much the police pay of the press 2 as I do no a tooth … not go from the back to the third from the back tooth. 4 The respondent did not respond to this application. On 3 January 2006 the applicant lodged an application for review with the Tribunal. At an initial Planning Meeting held on 22 February 2006 it was clear that the applicant has difficulties in reading and writing, and was not certain what documents he had received from the respondent, and what further documents he sought. The matter was adjourned for a period to allow the applicant to obtain legal assistance. Following a further Planning Meeting, the respondent made a determination of the Internal Review request. In the Internal Review determination dated 4 May 2006, J. Scholz, Deputy Director Compliance Law Division stated in part: As indicated the Applicant has previously sought the exact information in previous applications. These determinations have been subject to external review by both the NSW Ombudsman as well as on appeal to the Administrative Decisions Tribunal. It seems clear that the Applicant refuses to accept any previous decision concerning this request and has re-initiated the same application. It has been found in Robinson v Commissioner of Police, New South Wales Police Service [2003] NSWADT 245 that the review sought by the Applicant was dismissed in accordance with s73(5)(h) because it was frivolous or vexatious or otherwise misconceived or lacking in substance. I am of the view that the request for internal review is unreasonable given the circumstances and also is frivolous or vexatious or otherwise misconceived or lacking in substance. It is arguable that agency's are unable to deal with applications of this nature. 5 Notwithstanding this conclusion, a fresh determination was made under section 34 of the FOI Act: Exhaustive searches have previously been conducted within this agency to locate any reports or documents in relation to the Applicant's repeated requests for a document he described as "complaint conciliation" which he believes is held by Sutherland Police Station. Although I am not bound by the Act to particularise the searches and methods of searches which have been undertaken by this Department, I note for the benefit of the Applicant that searches have been conducted at Sutherland Police Station. These inquiries have involved searches of the TRIM system and searches of the records system of Sutherland generally. These searches have failed to result in the discovery of the document as described by the Applicant. Exhaustive searches have also been conducted through the Computerised Operational Policing System for any documents relating to contact the Applicant alleges to have had with Police during 2000 in relation to an incident at Governor Macquarie Tower. These searches have been without result. Accordingly, I am of the view that no record or document, as described by the Applicant, exists, and the Applicant is advised pursuant to section 28(1)(b) of the Act. 6 The respondent applied for the dismissal of the application for review. At the hearing of that application on 19 June 2006 the respondent submitted that documents had been released on various occasions and that further requests were a burden on the agency. The applicant has received all documents apart from an intelligence report which was exempt, and the matter has been reviewed by the Ombudsman. The internal review did deal with the application, and a search was conducted for the conciliation form. No documents have been located relating to any incident at Governor Macquarie Tower. There have been four previous applications and the respondent should not have to conduct any further search for documents. 7 The applicant stated that his main concern was for access to documents relating to an incident at Governor Macquarie Tower, a document at Sutherland Police Station in 2000, and a complaint form. 8 The respondent's representative provided the files relating to the applicant's previous FOI requests numbered 55118, 22930, and 36090. Application 22930 was a request made in 2002 for access to a range of documents, and access to one document, 115126986, was refused on the ground that the document was exempt under clause 4(3)(b) of Schedule 1 to the FOI Act. Application 36090 was a request made in 2004 for access to document 115126986, and a determination was made to give access to the document with deletions. Application 55118 was a request made in 2005 querying the applicant's criminal record, and a determination was made that no criminal record existed. Application 36090 referred to documents provided in response to application 30595. The respondent's representative advised that file 30595 would have related to a request for access made in 2001 or 2002, and file 10003 would have related to a request for access made in around 1993. 9 Section 73(5)(h) of the Administrative Decisions Tribunal Act (the ADT Act) provides that the Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. Having examined the files provided by the respondent, I formed the view that only one of the available files, 22930, and possibly one of the files not available, 30595, could have covered documents included in the request for access the subject of this review. It is clear from both his written requests, and his attempts to communicate in person, that the applicant experiences significant difficulty in communicating precisely what his concerns are. The determination of the application the subject of this review identified two documents which were created after the last request for all documents concerning the applicant. The internal review determination outlined additional searches which had been undertaken in the course of that review. Given that section 61 of the FOI Act places on the respondent the burden of establishing that the determination is justified, I decided that the applicant was entitled to have tested the adequacy of the searches undertaken in response to his request. I declined to dismiss the application for review. 10 In compliance with directions the respondent filed and served an affidavit by Sergeant Darryl Stuart, Co-ordinator, Freedom of Information, Courts and Legal Services, and primary decision-maker, dated 24 July 2006. At a subsequent Planning Meeting the parties agreed that the matter could be determined on the papers under section 76 of the ADT Act. Consideration 11 Under s16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency's documents. This right is subject to other provisions of the FOI Act, in particular s25(1)(a), under which an agency can refuse access to a document if it is an exempt document. Under s24 of the FOI Act, an agency must determine whether access to the document is to be given (whether immediately or subject to deferral) or refused, and any charge payable in respect of the giving of access, or for dealing with the application. Under s24(2), an agency that fails to determine an application within 21 days after the application is received by the agency is taken to have refused access. 12 In Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 the President of the Tribunal, O'Connor DCJ, held that where an applicant raises an argument that an agency has failed to locate relevant documents, and puts before the Tribunal some credible material or submissions which persuade the Tribunal that an arguable case exists, the Tribunal has jurisdiction to determine whether the agency has failed properly to determine the application so that there is a deemed refusal of the application for the purposes of s24(2). 13 The affidavit of Sgt Stuart provides details of the practice within the FOI Section for processing the approximately 7000 requests made each year. The avenues of inquiry include conducting of inquiries on the computerised record keeping system being the Tower Records and Information Management System (TRIM) and the Computerised Operational Policing System (COPS), or by contacting commands or units directly. In his affidavit Sgt Stuart states that in response to the request made on 17 October 2005 searches were made on the COPS and manual searches were made at Sutherland Local Area Command. Sgt Stuart outlined the searches completed for files 22930, 30595, 36090 and 55118. 14 Sgt Stuart provided copies of the determinations made in files 22930, 30595, 36090 and 55118 as annexures to his affidavit. These determinations indicate that file 30595 was a request for amendment of information contained in the COPS, and resulted in the culling of a specified intelligence report. 15 Based on the materials provided in the affidavit and as annexures, and my inspection of files 22930, 36090 and 55118, I am satisfied that the applicant has previously made one request for access to all documents concerning him held by the respondent, namely file 22930. This request was determined on 18 November 2002, and access was provided to a number of documents. Based on the decision of JM Higgins in Robinson v Commissioner of Police, New South Wales Police Service [2003] NSWADT 245, the Ombudsman subsequently conducted an investigation, and in the course of that investigation was given access to all the relevant files held by the respondent. JM Higgins was satisfied at that time that there was no evidence to support the applicant's argument that the respondent at that time held further documents relating to incidents in 1996 or 2000. Based on the affidavit of Sgt Stuart, further searches were made on COPs and at Sutherland Local Area Command in response to the request the subject of this review. The internal review determination indicates that searches have also been undertaken of the TRIM system. Sgt Stuart concludes his affidavit as follows: Having implemented the processes described within this affidavit, I do not know of any further location that might reasonably be searched or of any further inquiry that might reasonably be made for the purpose of identifying, locating or producing documents of the kind described in Mr Robinson's request. I am not able to say with certainty that documents of the kind described in that application have never existed or have been held by the Police Service, but I am not able to suggest any further avenue of inquiry that is likely to result in production of any further documents concerning Mr Robinson. 16 I am satisfied that the search efforts made by the agency to locate documents falling within the terms of the applicant's request are reasonable in all the circumstances. Whether or not additional documents may have existed at some stage, I am satisfied that the search the respondent has undertaken was sufficient, and the respondent has properly determined the application. Decision Decision under review 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.