CITATION: Wagh v Commissioner of Police, New South Wales Police Force [2008] NSWADT 264 DIVISION: General Division APPLICANT Vasant Shreekrishna Wagh PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Force FILE NUMBER: 073123 HEARING DATES: 17 January 2008, 22 May 2008 SUBMISSIONS CLOSED: 14 August 2008 DATE OF DECISION: 17 September 2008 BEFORE: Pearson L - Judicial Member CATCHWORDS: Jurisdiction MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 Cianfrano v General-General, Department of Commerce (No 2) [2006] NSWADT 195 APPLICANT In person REPRESENTATION: RESPONDENT R Saunders, Legal Officer ORDERS: Application for review dismissed. REASONS FOR DECISION 1 On 8 March 2007 Mr Vasant Wagh (the applicant) applied under the Freedom of Information Act 1989 (the FOI Act) for access to documents in four categories, identified as follows: A. COPS Event No E53323102 B. COPS Event No E27228532 C. Mascot Police Station and Pelosi & Associates Solicitors D. Our FOI application dated 8 March 2007. 2 The application was made in the names of the applicant and his son, Mr Nilesh Wagh, as the "documents requested relate to our personal matters", and so that documents could be released in full whether they related to either applicant. Mr Nilesh Wagh attended the first planning meeting, and apart from indicating his agreement to the release of documents that may contain information relating to his personal affairs, has played no further role in this matter. 3 The application provided more specific details of the documents included in his request for access. In summary, the documents were: A. Event No E 53323102 1. Copy of audio recording of telephone conversation between the applicant and Mascot Police Station on 9 September 2006 2. Copy of audio recording of telephone conversation between the applicant and Senior Constable Paul Dietrich on 10 September 2006 3. Copy of audio recording of telephone conversation between Senior Constable Paul Dietrich and Mr Nilesh Wagh on 10 September 2006 4. Copy of audio recording of telephone conversation between Senior Constable Paul Dietrich and the applicant on 25 September 2006 5. Copy of the police report COPS Event No 53323102 made by Senior Constable Paul Dietrich 6. Copy of applicant's fax dated 14 September 2006 to Mascot Police 7. Copy of applicant's fax dated 14 September 2006 to Mascot Police 8. Copy of DVD disc given to Mascot Police on 10 September 2006 9. Copy of audio recording of message left by Senior Constable Paul Dietrich on applicant's mobile telephone on 10 September 2006 10. Copy of audio recording of message left by Senior Constable Paul Dietrich on applicant's home telephone on 10 September 2006 11. Copies of all documents created by the DETECTIVE (mentioned by Senior Constable Paul Dietrich) in relation to the video footages on the DVD disc 12. Copies of all documents created by the SUPERVISOR (mentioned by Senior Constable Paul Dietrich) in relation to the video footages on the DVD disc 13. Copies of all documents created by the DUTY OFFICER (mentioned by Senior Constable Paul Dietrich) in relation to the video footages on the DVD disc 14. Copies of all documents sent by Mascot Police to NSW Firearms Registry in relation to COPS Event No E53323102 15. Full names of the DEYECTIVE, SUPERVISOR and DUTY OFFICER referred to by Senior Constable Paul Dietrich 16. All other documents on NSW Police records in relation to COPS Event No E 53323102 B. COPS Event No E27228532 17. Copy of the police report ECOPS Event No E27228532 made by C KB 18. Copies of handwritten notes made by C KB in relation to COPS Event No E 27228532 19. All other documents on NSW Police records in relation to COPS Event No E 27228532 C. Mascot Police Station and Pelosi & Associates 20. Copy of letter dated 17 July 206 sent by Mr Vincent Pelosi of Pelosi & Associates to Mascot Police Station 21. Copy of any response sent by NSW Police to Mr Pelosi 22. Copies of all documents in relation to telephone conversation between the office of Pelosi & Associates and Mascot Police Station on 14 July 2006 23. Copies f all other documents relating to any communications between Pelosi & Associates and NSW Police D. FOI Application dated 8 March 2007 24. Copy of 9 page faxed application dated 8 March 2007 25. Copy of 9 page application dated 8 March 2007 sent by registered post. 4 Event No E27228532 relates to events that took place in June and July 2006. On 23 June 2006 the applicant attended Mascot Police Station to report a number of matters, including that someone had applied for an Indonesian passport in his name, that he was being followed, and that the Post Office is withholding some of his mail. On 12 July 2006 the applicant again attended Mascot Police Station. 5 Event No E5332102 relates to events that took place in September 2006. On 9 September 2006 the applicant contacted Mascot Police station by fax, stating that possible armed gunmen had visited his home. Sergeant Chinnery went to the applicant's home to collect a DVD of footage taped by the applicant, and returned to Mascot Police Station. Senior Constable Dietrich subsequently left a message on the applicant's home telephone and mobile phone to the effect that the footage had been viewed and no firearm was visible. 6 The respondent did not respond to the applicant's request within the period prescribed, and on 4 April 2007 the applicant applied for internal review of a deemed refusal. There was no response to the internal review application, and on 27 April 2007 the applicant lodged an application to the Tribunal for review. In his application for review the applicant stated, among other things, that the police report COPS Event No E53323102 contains false information and omissions, and that he could not lodge comprehensive and complete complaints without the supply of all documents requested. The applicant was represented by a solicitor, Mr S Mainstone, for the first two planning meetings, and has since then represented himself. 7 The matter was remitted by consent under section 65 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) for reconsideration. The respondent provided determinations dated 13 June 2007 and 29 August 2007 by the Deputy Director, Compliance Law Division Legal Services. The Deputy Director stated that she had been provided with documents by Botany Bay Local Area Command and the FOI Unit. The determination of 29 August 2007 was, in summary, as follows: Botany Bay LAC had advised that there is no recording of telephone calls, incoming or outgoing, from NSW Police Stations, and that consequently there were no records held in accordance with section 28(1)(b) relating to points 1, 2, 3, 4, 9, and 10 of the application Documents relating to points 5, 6, 7, 8, 17, 20, 21, 24, and 25 of the application released in full In relation to points 11, 12, 13, 15, 18, 19, 22, and 23, there are no records held Points 14 and 16: access refused to two documents on the grounds of the exemptions in clause 9(1) and 13(b) of Schedule 1. 8 The documents identified in response to points 14 and 16 were subsequently released to the applicant on 17 January 2008. 9 The respondent provided witness statements from Constable Karen Birch, Inspector Daryl Irvin, Constable Peter Buckley, Sergeant Kylie Chinnery, Sergeant Gregory Tetley, and Senior Constable Paul Dietrich. Sergeant Tetley and Constable Buckley were on duty when the applicant attended Mascot Police Station on 12 July 2006; and Constable Birch created the COPS summary for Event No E27228532. Sergeant Chinnery collected the DVD from the applicant's house on 9 September 2006 and viewed the footage; Inspector Irvin was the Duty Officer that evening; and Senior Constable Dietrich viewed the DVD footage and left messages on the applicant's telephones. All the affidavits state details of the request from the Administrative Law Unit for documents, and the steps taken in response. In their affidavits, Constable Birch and Senior Constable Dietrich state that telephone calls to police stations are not recorded. 10 Hearings were held on 17 January 2008 and 22 May 2008. At the hearing of 17 January 2008 Sergeant Tetley and Senior Constable Paul Dietrich gave oral evidence, and were cross-examined by the applicant. At that hearing copies of the documents in respect of which the respondent had claimed exemptions were released to him in full. Constable Karen Birch, Constable Peter Buckley and Inspector Irvin gave oral evidence at the hearing on 22 May 2008 and were cross-examined by the applicant. The applicant raised his concerns during Constable Buckley's evidence that he was not the officer wearing badge number 244 that he had spoken to at Mascot Police Station on 12 July 2006. In his written submissions the applicant stated that he did not wish to dispute the identity of that officer. During the course of the hearing, the respondent tendered copies of the staff roster for 12 July 2006 which included Senior Constable Buckley, and copies of pages from Senior Constable Buckley's notebook. Senior Constable Buckley conceded on examining the copies that there were entries relating to the applicant. An entry dated 23 June 2006 sets out the applicant's details and is marked "E27228532". An entry dated 12 July 2006 is as follows: 22/6/06, RC used 2 open garage door. Passport not lost. False p/p used to open PO Box in Haymarket. P/p not lost. 11 Senior Constable Buckley conceded that this was a note made of information provided to him by the applicant, and stated that it was possible that when going through his notebook in order to provide his affidavit he may have missed this entry because it does not identify the applicant by name. Senior Constable Buckley accepted that not including this in his affidavit was an error. The applicant was provided with copies of the documents tendered by the respondent, with deletions made of information identifying other persons. 12 The respondent's representative made oral submissions at the end of the hearing on 22 May 2008. At the conclusion of the hearing the applicant was directed to file and serve any written submissions by 17 July 2008, with the respondent to file and serve any submissions in reply by 31 July 2008. On 19 June 2008 the Court of Appeal delivered judgment in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140. On 24 June 2008 the Registrar wrote to the parties, inviting them to include any submissions as to whether the Tribunal has jurisdiction to determine all the issues raised by the applicant. The respondent filed written submissions on 7 July 2008 and the applicant filed his written submissions on 15 August 2008. Applicant's case 13 The applicant's case is that the respondent has failed to conduct diligent searches for the document requested in points 1, 2, 3, 4, 9, 10, 11, 13, 14, and 19 of his application and that all reasonable steps have not been taken to locate the documents sought. 14 In relation to his request for access to recordings of telephone conversations in an out of Mascot Police Station, the applicant submits that the evidence of Sergeant Tetley suggests that the Police Integrity Commission can record such telephone conversations, and that the Commissioner of Police should search for the documents requested. The applicant submitted that the evidence of Sergeant Tetley should not be relied upon, as it is not credible and no sufficiently senior NSW Police Officer has categorically denied the existence of the specific documents requested as points 1,2, 3, 4, 9 and 10. The only person suitable to provide evidence as to the existence or non-existence of these documents is the Commissioner of Police. 15 In relation to the request for documents at point 11, the applicant submits that the evidence before the Tribunal indicates that a detective did view the DVD supplied by the applicant, and that adequate searches have not been conducted with the Detective that viewed the DVD. 16 In relation to point 13, the applicant submits that Sergeant Chinnery has stated that she watched the DVD in company with Senior Constable Dietrich and "the Duty Officer (maybe Insp Colin Moore)"; that there had been discussion at a Directions Hearing as to whether the respondent should provide a witness statement; that the respondent's then representative had indicated that Inspector Moore was the Duty Officer and had failed to obtain an affidavit or witness statement from Inspector Moore; and that searches should be conducted for any documents created by Inspector Moore. 17 For point 14, the applicant submits that the five pages of documents released under the determination of 13 June 2007 (a four page Intelligence Report I 28546938 and a one page report by Senior Sergeant Dykes dated 27 October 2006) appeared from the fax header to be part of a 16 page fax transmission originating from Mascot Police Station, and that all 16 pages should be released to him. The applicant submits that from one of the documents filed at the Tribunal on 17 January 2008 it appears that there may also have been a 15 page fax transmission from Mascot Police Station, and that all 15 pages with the fax header clearly visible on all pages should be released to him. 18 In relation to point 19, the applicant submits that the COPS Event E 27228532 indicates that Michael Douglas Merritt updated the report, that documents may exist in relation to his involvement, and that therefore searches should be conducted with him. In his written submission the applicant further submits that searches should be undertaken for video footage taken at Mascot Police Station, as video footage of his visits on 23 June 2006 and 12 July 2006 may be in existence in the archives or elsewhere. 19 The applicant submits that the Tribunal: "… should not make findings of fact that certain documents do not exist simply because the Respondent claims that they do not exist. The respondent has claimed in the past that documents did not exist but it was discovered during the proceedings that documents did, in fact, exist." 20 In support of this argument the applicant points to evidence obtained at the hearing held on 22 May 2008, namely a copy of an entry in Constable Buckley's notebook on 12 July 2006. The applicant's then representative had requested a copy of entry in June 2007, and the respondent's then representative had stated in August 2008 that searches for an entry for the relevant date had been unsuccessful. 21 The applicant submitted that the decision of the Court of Appeal in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 does not determine whether the Tribunal has jurisdiction in this matter, as that decision should only apply to cases filed at the Tribunal on or after 19 June 2008. In the interests of justice the respondent should be directed to conduct further searches for documents and provide all documents located as a result of those searches to the applicant. 22 The applicant seeks a number of orders, including release of all documents without deletions, a direction that the Commissioner of Police conduct further searches and provide an affidavit in relation to recording of telephone calls and CCTV footage, an order that the respondent be directed to identify the detective who viewed the DVD and obtain an affidavit, an order directing the respondent to obtain an affidavit from Inspector Colin Moore, an order requiring the respondent to release in full fax transmissions sent from Mascot Police Station n 11 September 2006 and 27 October 2006, an order that an affidavit be obtained from Michael Douglas Merrett in relation to his involvement in E27228532, and an order that the respondent release the two page document that Sergeant Tetley was holding an referring to on 12 July 2006. Respondent's case 23 In submissions made at the hearing on 22 May 2008 the respondent's then representative submitted that all documents held by the NSW Police relating to the 25 items in the request had been released to the applicant. The Tribunal should be satisfied based on the evidence of Inspector Irvin which is consistent with that of Constable Birch and Constable Buckley, that there were no sound recordings taken of the applicant's visits to Mascot Police Station in June and July 2006. The Tribunal should be satisfied based on the evidence of Inspector Irvin, Dietrich and Tetley, that no there had not been a detective present when the DVD was viewed, and that there are therefore no further documents that could be obtained. 24 The respondent's submissions filed on 7 July 2008 focus on the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140. The respondent submits that the only issue before the Tribunal in this mater is the question of the adequacy of the search conducted by the respondent and whether or not the documents requested by the applicant exist. The respondent has provided to the applicant all documents pertaining to his request, and the Tribunal no longer has jurisdiction to hear this matter, and should dismiss the application for review. Consideration 25 As noted above, this matter proceeded on the basis that the Tribunal has jurisdiction to review the determination of 29 August 2007 both on the exemptions claimed, and the claim that there were no further documents falling within the scope of the request for access. The respondent has since provided access to the documents initially claimed to be exempt, and the two half days of hearing were devoted to testing the evidence given by five of the respondent's witnesses concerning the second aspect of the matter. As it has emerged, because of the jurisdictional issue there is no longer a need to make findings on much of the oral evidence given at those hearings. However, in recognition of the respondent's efforts to obtain evidence relating to those matters, and the time taken away from normal duties for each of the officers who gave oral evidence, it is appropriate that I make some comment on the two major factual matters in dispute. 26 Sergeant Tetley, Senior Constable Dietrich, and Inspector Irvin all gave oral evidence that telephone calls in and out of NSW Police stations are not recorded. Inspector Irvin's evidence was that recording could be done in an emergency, and that this would need the assistance of Telstra and on request only. Sergeant Tetley's evidence was that it would only be if there was something like an investigation by the Police Integrity Commission, and that he was not aware in his 14 years as a police officer of any instances of telephone calls being recorded. Constable Dietrich's evidence was that the police cannot record telephone calls, and that it might be possible if there was a warrant for example in an internal affairs investigation. Based on the evidence of these officers, each of whom has considerable experience in the NSW Police, I am satisfied that telephone calls in an out of police stations are not routinely recorded, and I reject the applicant's submission that the Commissioner of Police should be asked to conduct searches for the documents identified at points 1, 2, 3, 4, 9 and 10 of the request for access. 27 A considerable amount of hearing time, and discussion during planning meetings, concerned the question of who had viewed the DVD of footage recorded by the applicant on 9 September 2006. The evidence pointing to someone other than Senior Constable Dietrich, Sergeant Chinnery and Inspector Irvin viewing the DVD on 9 September 2006 comes in the transcript made by the applicant of the telephone messages left by Senior Constable Dietrich, and in a letter sent by the respondent's former representative, Ms Carley Weiss, to the applicant's then solicitor on 13 July 2007. That letter states: I confirm that there are no documents in existence which were produced by a detective upon viewing the DVD supplied by the Applicant. I confirm that a Detective viewed the DVD and deemed that no further investigation would be taken in regards to the same. As a result, no documents (including notebook entries) were created. 28 Senior Constable Dietrich's evidence was that he, Sergeant Chinnery, and the Duty Officer, had viewed the DVD. Senior Constable Dietrich conceded that the content of his telephone messages may have been as transcribed by the applicant, and that there is a reference in those transcripts to a detective having viewed the DVD. Senior Constable Dietrich stated that he could not recall the exact words he had used, and conceded that he may have mentioned a detective. Senior Constable Dietrich was firm in his evidence that there had been three people present to watch the DVD, and that none had made notes. Inspector Irvin, who stated that he had been Duty Officer that evening, could recall having viewed the DVD, but could not recall who else had been present. He could not recall where in the Police station he had viewed the DVD, and accepted that it could possibly have been in the detectives' office. Inspector Irvin stated that he could not be 100 percent sure that no detective had been involved, but as far as he could recollect, there had not been a detective involved. There are no notes in either his notebook, or the Duty Book. There is no obligation on a police officer to make notes and it would have to be a matter of some consequence to do so. 29 Ms Weiss did not give evidence, and it is unclear what the statement in her letter of 13 July 2007 was based on. I accept the affidavit evidence of Sergeant Chinnery (who was not required to give oral evidence) that there were three people present when the DVD was viewed, and that she made no notes in her notebook in relation to this event for 9 or 10 September 2006. Inspector Irvin was unable to recall who had viewed the DVD, but was certain that he had made no notes. Senior Constable Dietrich was certain that there had been only three people there, and that none of them made notes. The apparent lack of notes is consistent with the conclusion drawn by those viewing the DVD, namely that the applicant was mistaken and that what he had thought was a firearm was in all likelihood a mobile phone. I accept that it is possible that officers other than the three directly concerned with viewing the DVD may have been present at Mascot Police Station on the night of 9 September 2006. Even if one or more of those present may have been physically in the room where the DVD was viewed, and even if one or more of those people may have been a detective, given the conclusion that there was no firearm, I consider it unlikely that any additional person in the room who may have viewed the DVD would have made any notes. In those circumstances there would be little point in requiring the respondent to undertake further searches. 30 The progress of this matter before the delivery of the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 was based on the approach adopted by the Tribunal generally since the decision in Cianfrano v General-General, Department of Commerce (No 2) [2006] NSWADT 195, that the Tribunal has jurisdiction to hear and determine the question of an agency's sufficiency of search in respect of an FOI application. 31 The respondent in that matter appealed to the Appeal Panel, which referred under section 118 of the ADT Act the following question for the opinion of the Court of Appeal: Is a notification under section 28(1)(b) of the FOI Act 1989 that an agency does not hold a document a determination that the Administrative Decisions Tribunal has jurisdiction to review? 32 As noted by Beazley JA (at [75]), the matter was argued in the Court of Appeal as if the question was whether the Tribunal had jurisdiction to determine the sufficiency of search by an agency in respect of an application for access to documents. The answer provided by the Court of Appeal was as follows: (a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under section 24 of the Freedom of Information Act 1989; (b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of section 24; (c) the jurisdiction of the Tribunal conferred by section 53 of the Freedom of Information Act 1989 does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents made pursuant to sections 17 and 18 of the Freedom of Information Act 1989. 33 Beazley JA held that a statement by an agency that a document does not exist, or that it does not have a document, cannot be construed as a refusal to give access to a document. Her Honour held (at [61]): Section 25 complements section 24. Section 24 governs an agency's responsibility and obligations under the FOI Act after it has received an application. The right to access is a statutorily conferred right and an agency's obligations relating to granting access and the circumstances in which it may refuse access are also statutorily prescribed. Leaving aside the situation where an agency fails to determine an application within 21 days, giving rise to a deemed refusal: section 24(2); an agency is statutorily required to make a determination in relation to the application. There are, relevantly for present purposes, only two available determinations that may be made: to grant access or to refuse access. A determination to refuse access may be made on one or more of the bases specified in section 25. The section, properly construed, does not permit other circumstances to be taken into account. 34 Beazley JA set out the ambit of the review jurisdiction conferred by section 53 of the FOI Act in the following terms: [68] … Section 53 provides for the review of a determination. The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in section 53(1) that draws such conduct within the Tribunal's review function. A statement that an agency does not have a document is not a "determination within the meaning of section 24(1). 35 Beazley JA concluded (at [76]) that there is nothing in the FOI Act that confers jurisdiction on the Tribunal to conduct a review of, or enquiry into, the sufficiency of an agency's search for documents. 36 Basten JA held (at [108]): … However, consistently with the scope and objects of the legislation and the expressed intention that the FOI Act shall be applied so as to further those objects and so as to facilitate and encourage the disclosure of information (section 5(3)), section 25 should be seen as an exclusive statement of grounds on which access may be refused. 37 Beazley and Basten JJA, with whom Giles JA agreed, noted that the failure of an agency to consider or adequately consider an application could be the subject of a complaint to the Ombudsman. 38 The limits on the Tribunal's jurisdiction, as determined by the Court of Appeal, apply regardless of when the applicant applied for review. The Tribunal has no jurisdiction to go behind an agency's determination that it has provided access to all the documents it holds that fall within the terms of a request for access. That would still be the case where other documents are subsequently found, as in this matter where Constable Buckley was able to locate a note in his notebook that related to the applicant. Only the Ombudsman can investigate a complaint that an agency has not properly attempted to locate all relevant documents. The respondent has provided access to what it says are the only documents that fall within the scope of the applicant's request for access request. The applicant's contention that there must be more documents is not a determination reviewable under section 53. In the absence of jurisdiction, the appropriate course is to dismiss the application. Orders Application for review dismissed. 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.