Brandon v Commissioner of Police, NSW Police [2007] NSWADT 194

CITATION: Brandon v Commissioner of Police, NSW Police [2007] NSWADT 194 This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: General Division

APPLICANT PARTIES: Kenneth Brandon RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 073079

HEARING DATES: 20 June 2007

SUBMISSIONS CLOSED: 20 June 2007

DATE OF DECISION: 28 August 2007

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 : Freedom of Information Act 1989

Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 CASES CITED: Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 O'Sullivan v Sydney South West Area Health Service [2007] NSWADT 51

APPLICANT In person REPRESENTATION: RESPONDENT C Weiss, agent

ORDERS: Appeal dismissed

REASONS FOR DECISION Background 1 The background to this application can be summarised as follows. On 3 October 2006 the applicant was present at the TAB located at The Corso, Manly, when an incident occurred, with the applicant taking exception to language used by two other persons. It appears that the applicant reported this incident to the duty manager, Ms Vicky Turner. The applicant was not satisfied with the response and went to Manly Police Station, where he reported the matter. The applicant has concerns about how the matter was handled on that occasion, and on subsequent occasions, by the police and other agencies, in particular the TAB. In particular, the applicant is concerned that the incident of 3 October 2006 may have been recorded on a surveillance tape at the TAB, and that this tape was deleted on 4 October 2006. Request for access to documents 2 On 15 December 2006 the applicant applied to the respondent for access to documents under the Freedom of Information Act 1989 (the FOI Act) as follows: Copies of written notes of complaint on 3rd October 2006 from Senior Constable Fletcher re Vicky Turner of Corso TAB Branch Manly. Required full report of investigation made in my absence. Who was involved? In this inquiry. No one answered why video tape at TAB was not accessed? TAB guidelines were ignored. Police took no action to investigate on 3rd Oct. 3 On 30 January 2007 a determination was made to grant access to the following documents: 1. Event Summary No E 28363606 dated 5/10/2006 (5 pages) 2. Police Notebook Entry F 380617 of Leading Senior Constable Fletcher, dated 14/7/2006 (2 pages). 4 Deletions were made of material claimed to be exempt under clauses 6(1) and 7(1)(c) of Schedule 1 to the FOI Act. 5 On 12 February 2007 the applicant requested internal review. On 26 February 2007 the Deputy Director, Compliance Law Division, determined to release in full the documents identified in the initial determination, and concluded that as a result of searches made there were no documents other than those released within the terms of the applicant's request for access. 6 The applicant applied to the Tribunal for review on 23 March 2007. A planning meeting was held on 17 April 2007. On that occasion the applicant stated that the respondent should have obtained a copy of the tape, and that the response to his request for access was 63 days late. In accordance with direction made at the planning meeting the respondent filed written submissions and an affidavit sworn by Leading Senior Constable Fletcher. The applicant provided written submissions in response, together with copies of correspondence with the NSW Office of Liquor, Gaming and Racing, and Tabcorp. A hearing was held on 20 June 2007. At the hearing it became apparent that the applicant had not served copies of all his submissions on the respondent, and the respondent was given access to the copies on the Tribunal file. Respondent's case 7 The respondent's written submissions relied on the searches conducted as part of the internal review, and on an affidavit provided by Leading Senior Constable Fletcher. In that affidavit dated 24 April 2007 Const Fletcher states as follows: 2 On 3rd October 2006, Kenneth BRANDON came into Manly police station in order to make a complaint regarding an incident which has just occurred at TAB at 41 The Corso, Manly. 3 As a result of this complaint I asked BRANDON if he would like me to attend the TAB to talk to the men involved. At this point in time Mr Brandon stated that police would be "wasting their time" by doing this. 4 No CCTV footage was obtained; BRANDON was also informed that this CCTV footage would not be able to depict what was said in the TAB as CCTV footage does not record sound. 5 No further investigation was undertaken in regards to this matter. Kenneth BRANDON was informed of this. 6 On about 9th January 2006, I received a tracer file from the NSWP Freedom of Information Unit. As a result, I conducted a number of inquiries which included a search for any document which may have referred to BRANDON and the incident at the TAB. The extent of the documents was forwarded to the Freedom of Information unit. These documents included a COPS (Computerised Operational Policing System) entry and a notebook entry taken from my notebook. 7 On 23 February 2007 I received a further request for documents in relation to this incident from Carley WEISS of the Administrative Law unit within NSW Police. 8 On 25 February 2007 I once again perused the COPS system in order to find any further material in relation to the same. No further documents were located. 9 On 25 February 2007 I responded to Carley WEISS and informed her that there were no further documents in existence in relation to event 28363606. 10 I am not aware of any other way or any further searches that may reasonably be conducted in an attempt to locate any such documents. I am satisfied that all documents in relation to this event have been supplied to BRANDON. Applicant's case 8 The applicant responded in writing to the submissions filed by the respondent on 27 April 2007, in letters addressed to the Tribunal dated 21 May 2007, 24 May 2007, and 28 May 2007. In the letter dated 21 May 2007 the applicant outlines his concerns about the statements made about him in the Event Summary; provides details of a conversation with the licensee of the TAB concerning the erasing of the video tape on 4 October 2006; outlines concerns about correspondence with the NSW Department of Gaming and Racing; and questions why Inspector John Duncan at Manly Police Station did not interview anyone or investigate the incident at the TAB. In the letter dated 24 May 2007 the applicant states that the Superintendent and Local Area Commander, Manly, must take responsibility for a number of listed matters. Those matters include failure to request the video tape on 3 October 2006, failure to obtain a written statement from Ms Turner, and failure to identify anyone at The Corso TAB on 3 October 2006. In the letter dated 28 May 2007 the applicant raised a number of concerns, including the delay in handling his initial request for access, the identity of the person at TAB who erased the CCTV tape, the "disappearance" of Ms Turner of the TAB and her witnesses, two officers of the Department of Gaming and Racing, and the erasing of the tape on 4 October 2006. 9 In his oral submissions the applicant disputed the statements made about him in the Event Summary, stating that they were insulting. The applicant disputed the statement in paragraph 4 of Const Fletcher's affidavit, stating that the CCTV footage was not mentioned until 25 January 2007, by the Department of Gaming and Racing. There was also no mention of telephoning Ms Turner. The applicant stated that the tape had been erased on 4 October 2006. Consideration 10 Under s16(1) of the FOI Act, a person has a legally enforceable right to be given access to "an agency's documents" in accordance with the Act. 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. 11 Section 6(1) of the FOI Act defines "agency's document" to mean "a document that is held by the agency". Under section 6(2), d) a reference to a document includes a reference to a copy of the document, and (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, 12 The term "document" is defined in section 6(1) 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. 13 The right of access created by section 16 of the FOI Act for access to "an agency's documents" is to be interpreted as widely as possible, consistently with the principle of openness articulated in the objects of the Act in section 5: Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133. However, this right is subject to the limitations specified in the Act. The definitions set out above limit access to a "document", which may be in written form, or which could be put into written form by usual methods of retrieval or collation. That would include entries in the respondent's COPS system. Such a "document" is "held" by an agency if the agency has an immediate right of access to it, or it is in the possession or under the control of an officer of the agency. 14 The applicant's dissatisfaction with the determination of his request for access under the FOI Act rests essentially on the following matters: - Manly police could have requested a copy of the CCTV footage from the TAB, but did not do so; - the CCTV tape was erased on 4 October 2006; - Manly Police could have investigated the matter further, including taking a written statement from the duty manager, Ms Vicky Turner, but did not do so; - the Event Summary provided contains insulting comments; and - the copy of Const Fletcher's notebook entry is meaningless. 15 There is no evidence to indicate that any CCTV video tape recorded at the TAB was ever in the possession of or under the control of any officer of the NSW Police Service. Indeed, the applicant's case is that a copy should have been obtained by Manly police, but was not. Accordingly, the TAB video footage could not fall within the scope of the applicant's request to the respondent for access under the FOI Act. Further, while the applicant has expressed concerns about the behaviour of certain employees of the TAB, in particular the erasing of the tape, his request for access under the FOI Act was made to the NSW Police. The conduct of officers of other agencies is not within the scope of this request. 16 The applicant's concerns about the failure of officers at Manly Police Station to investigate his complaints are also not within the scope of a request for access to documents under the FOI Act. As noted above, a request for access made under s17 of the FOI Act can only be made for access "to an agency's document". Even if additional documents might have come into existence had the police made further investigations, for example by obtaining a written statement from Ms Turner, the applicant's request for access could only ever have covered documents actually in existence. 17 The applicant was critical of the content both of the Event Summary and the entry in Const Fletcher's notebook. By providing the applicant with a copy of both documents the respondent has fulfilled the obligation imposed by s24 of the FOI Act. Part 4 of the FOI Act contains provisions for applications to be made for amendment of an agency's records if a document contains information concerning a person's personal affairs; if the information is available for use by the agency in connection with its administrative functions; and if the information is, in the person's opinion, "incomplete, incorrect, out of date or misleading": s39 FOI Act. The applicant has not made any application under Part 4 of the FOI Act. 18 In his oral submissions at the hearing the applicant disputed the accuracy of some of the contents of Const Fletcher's affidavit. The applicant did not request that Const Fletcher be available for cross examination, and consequently Const Fletcher did not give oral evidence at the hearing. Had the particular issues of fact disputed by the applicant proven central to the resolution of this matter, I would have adjourned the hearing until Const Fletcher was available to give oral evidence and be cross examined by the applicant. However, in my view, while the statements in the affidavit which the applicant disputes are matters of some concern to him, they are not relevant to the issues which I must determine. 19 The final matter for consideration is whether there has been a deemed refusal for the purposes of s24(2) of the FOI Act. 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). 20 The applicant requested access to "copies of written notes of complaint on 3 October 2006". As discussed by Judicial Member Higgins in O'Sullivan v Sydney South West Area Health Service [2007] NSWADT 51, the terms of the request for access made under s17 of the FOI Act form the parameters within which determinations are to be made. The applicant has been provided with a copy of the Event Summary which relates to his complaint of 3 October 2006, and with a copy from the relevant page of Const Fletcher's notebook of the entries he made on that date. The applicant has provided no credible material or submissions which might persuade me that an arguable case exists that the respondent has failed to locate relevant documents that fall within the request made on 15 December 2006. To the contrary, his case has been put on the basis that there are no other documents, because of a failure to investigate the matter properly. I am satisfied that the respondent has made a full disclosure of all relevant documents, and the application must be dismissed. Order Application dismissed.