Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187

CITATION: Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 DIVISION: General Division APPLICANT PARTIES: Joe Miriani RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 043292 HEARING DATES: 02/05/2005 SUBMISSIONS CLOSED: 05/02/2005 DATE OF DECISION: 08/09/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search MATTER FOR DECISION: Prinicpal application Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 CASES CITED: Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 APPLICANT REPRESENTATION: In person RESPONDENT D Shepherd, solicitor ORDERS: 1. The application for review is dismissed as it relates to part one of the applicant's access request; 2. The matter is to be relisted for a further planning meeting.

REASONS FOR DECISION 1 This is an application for review of a determination made under the Freedom of Information Act 1989 (the FOI Act). It has been the subject of several planning meetings, resulting ultimately in one issue being referred to hearing – that of the sufficiency of the agency's search as it relates to the first part of the applicant's original application for access to certain documents held by the agency. 2 The first part is as follows: 'I hereby make an application for access under the Freedom of Information Act (NSW) 1989 to request non-personal information. Please provide a copy of documents held by the NSW Police Service in its computerised operational systems (COPS/CIDS) and/or in any other systems containing non-personal information relating to the following motor vehicle: Make: BMW Model: 323 Ci Registration No: AJH34W and 144414 VIN/Chassis No: WBABM32030EX34112 Engine no. 28189453256S4' 3 The remainder of the application for review has yet to be disposed of. In particular there remains for consideration an application by the respondent agency for dismissal of the proceedings as being 'frivolous or vexatious or otherwise misconceived or lacking in substance' under s 73(5)(h) of the Administrative Decisions Tribunal Act 1997; and for costs incurred by it in dealing with the application for review, especially in so far as it relates to the second part of the original access application. The material placed before the Tribunal by both parties is copious. General Background 4 Police attached to the Redfern Police Station on or about 6 February 2002 removed the registration plates from the vehicle referred to in the access application, took custody of the plates and reported their actions to the Roads and Traffic Authority (the RTA). The applicant also made reference in the course of the proceedings to having lodged complaints at a later time at the Surry Hills Police Station. 5 As the Tribunal understands his position, the applicant expected that in response to his access application he would have received far more documents than the few provided. Initially he only received one relevant document, with some more being produced at the internal review stage and during the course of the planning meetings in the Tribunal. 6 This application, like some others brought before the Tribunal by the applicant, has as its broader background grievances over the recovery by a financier of the vehicle referred to in the access request, after he failed to keep up the payments under the contract. In his view, his interests were not protected in that process. He blames for the loss of the vehicle, among others, the Police and the Office of Fair Trading (in its capacities as the agency of government responsible for the administration of laws bearing on the collection and disposal of goods, and for the administration of the system for registration of encumbrances on vehicles). (The Tribunal has already dealt with an application by the applicant for review of a determination under the FOI Act made by the Office of Fair Trading: Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99.) The applicant has also referred to being a party to interpleader proceedings over the ownership of the vehicle in the District Court. 7 (The Tribunal notes that the date of receipt of the FOI access application by the Police was a matter of dispute. The letter is marked 7 May 2004. The applicant produced Post Office records to show that the letter was received by the Police on 10 May 2004. The Police date stamp shows 13 May 2004. It is not necessary to make a finding.) 8 The primary agency determination is dated 26 May 2004. The applicant applied for internal review by letter dated 11 June 2004. The internal review determination was late, and is contained in a letter dated 16 September 2004. The application to the Tribunal for review was filed 3 September 2004, as is permitted in circumstances where an agency has not dealt with the application within the time period required by the FOI Act (14 days, s 34(6)). 9 At hearing Mr Shepherd, who appeared for the respondent, said that the internal review determination dated 16 September 2004 concerned the determination of a different request. The contention was that by his letter of 11 June 2004, the applicant had in effect submitted a fresh request rather than a request for internal review. The letter of 11 June 2004 was certainly more detailed as to the kind of material the applicant felt should be searched. However it is clear that the respondent's officers treated the applicant's letter of 11 June 2004 as merely being an elaboration of the original request. Sufficiency of Search 10 The precise issue raised by a sufficiency of search objection is: 'Whether an agency has made the correct and preferable decision in refusing access to documents because the documents are not 'held' by the agency within the meaning of that term in s 6(1) of the FOI Act. A decision that access to documents is to be refused encompasses a refusal on the ground that a document within the terms of the request can not be identified or located or that it has not been found to exist.' (per Hennessy DP in a decision the publication of the details of which has been suppressed) 11 The Tribunal's jurisdiction to deal with such an objection was established in the case of Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52, esp at [6]-[13]. As noted by the Tribunal in that case at [13] and [19]: '13 My interpretation of all the relevant provisions, is that the FOI Act provides a procedure which necessarily entails a duty to make findings on what are the documents "held by the agency" which are identified in the terms of a request. Such findings arise at preliminary stages and also, ultimately, as essential elements of a determination on the grant or withholding of access to documents in response to the request. In the absence of any express provision for their making, the duty to make them is found within the general duty to determine the request for access, i.e. within s 24(1). A determination giving effect to the findings by refusing the application for access on the ground that a document or additional documents cannot be located therefore becomes a reviewable determination under s 53(1). The applicant for access is aggrieved by a "determination … to the effect that … an agency … refuses to give the person access to a document", and therefore has standing to seek review under s 53(3)(a)(i). When reviewing the determination, the Tribunal must consider on the evidence before it whether the correct or preferable exercise of the s 24 power would be to refuse the request or part of it on the ground that a document, or additional documents, falling within its terms are not "held" by the agency. As with other grounds for refusing access, the onus is on the agency to justify such a conclusion (see s 61). … 19 To some people, it may appear awkward for the Tribunal to be required to determine whether an agency is correctly asserting that it does not hold a document or additional documents. Certainly, the Tribunal is not equipped in the manner of the Ombudsman with staff able physically to access and search document registries and filing systems and to interrogate the custodians of agency documents. All that the Tribunal can do is to assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches, or the reference of the case to the Ombudsman under arrangements under s 39 of the Administrative Decisions Tribunal Act 1997 (NSW).' The Response to the Original Request 12 The agency's FOI co-ordinator (Sgt Mark Maddox) swore an affidavit and gave evidence at hearing outlining the steps he had taken in response to the applicant's request, and subsequent queries made by him. 13 Sgt Maddox's evidence is that he interpreted the request as asking him for any information about the motor vehicle held in a systematic form in a computerised system of the agency. He explained that the Computerised Operational Policing System (COPS) is the only computerised database likely to hold information about a motor vehicle. He searched that database and four documents were identified, one appearing to be directly relevant to the applicant's request (the incident report bearing the number E14197412 and three also relating to the motor vehicle though not apparently directly relevant to the request (they were supplied as a matter of courtesy).) 14 He also checked the database managed by the Roads and Traffic Authority (RTA) with which the COPS system has an interface. This produced no relevant documents. 15 The full text of document E 14197412 appears in the applicant's submissions filed 20 May 2005. In the Tribunal's experience of scrutinising documents of this kind, this is an incident report of a typical kind with typical information fields. It records an event occurring at 9.30 am on 6 February 2002. It records that the matter was the subject of a decision that there be no further investigation on 8 February 2002. It notes that the record was created by Constable Jodie Lee Paton of Redfern, and updated by Sgt Paul Fran Huxtable of Redfern. The information conveyed by the text is that a vehicle 'ajh34w nsw' located near the intersection of Pitt Street and Cleveland Street Redfern was considered to have been abandoned, as the registration had expired. Consequently the plates were removed. They were booked into a facility described as MPRB (which the Tribunal understands to stand for 'Miscellaneous Property Register Book' and the receipt number is recorded C899481). The police officer in charge of this matter is listed as Constable Martin Kenneth Lockyer of Redfern. 16 One element of the record states: 'Related Police Ops: 7451/2002/04'. 17 This element of the record was a focus of the applicant's attention at hearing. The Response at the Internal Review Stage 18 The internal review determination was made by Ms J Scholz, Acting Deputy Director, Compliance Law Division, Legal Services. 19 In the determination Ms Scholz referred to the applicant's letter dated 11 June 2004, where he gave more information as to what kind of records he saw as relevant to his request. They included 'all documents including but not limited to the following: 1. All paper, computer, imaging/video, audio, photographic records/documents 2. All report, correspondence, email messages, statements 3. All related notebook/diary entries of Cst Mick Hunter 4. All related notebook/diary entries of Cst Paton 5. All related notebook/diary entries of Cst Jodie Lee 6. All related notebook/diary entries of Cst Lockyer 7. All related notebook/diary entries of Sgt Huxtable 8. All related entries in Redfern Police Station's Miscellaneous Property Book (MBP) such as MPB receipt number C899481 9. All related entries relating to the classification of the indicated car as a Vehicle of Interest (voi).' 20 Ms Scholz stated that she requested further searches to be conducted as it relates to E14197412 in regard to items 1 to 9 above. She stated that she had made enquiries of the four officers named. (There is no separate person, Cst Jodie Lee. These are the first names of Cst Paton.) She asked them for all documents in their possession including notebook diary entries relating to COPS event no E14197412. 21 As a result four more documents were located and released to the applicant (subject to some excisions for which an exemption was claimed). She also stated that she had been informed by Cst Jodie Paton, the officer in charge of the matter that is the subject of E14197412 that those four documents are all of the documents relating to the incident. The four documents were described as follows: (a) Notebook Entry, one page (b) Miscellaneous Property Receipt no C899481 – Part B (one page) (c) Miscellaneous Property Receipt no C899481 – Part C (one page) (d) Roads and Traffic Authority Receipt dated 7-2-02 (one page). 22 In the course of the Tribunal's planning meetings more searches were done and more documents produced. There is a bundle of documents filed 6 December 2004 on the Tribunal file, which have been inspected by the applicant. They include records of searches done by reference to the vehicle identification number, chassis number, engine number, the four further records mentioned in the last paragraph, as well as a large amount of material relevant to the second part of the original access request. Matters Canvassed at Hearing 23 In reply to the applicant's question as to whether he had caused to be searched every computerised system operated by the NSW Police, Sgt Maddox replied that he had not. He had not searched, for example, intelligence systems as in his experience they did not hold information of the kind sought. He saw the COPS system and the RTA system as those most likely to hold the information sought by the request. He supplied all the documents that showed on these systems matching the identifiers supplied. The search process included wildcard searches using chassis number and engine number. He also referred to the volume of FOI requests received by his unit in a year (600-900), the extent of the resources available to conduct searches, and the need to make assessments of the likely sources of documents responsive to the request. 24 He was asked whether he had searched the Computerised Incident Despatch System (CIDS). He acknowledged that he had not searched this system, and referred to difficulties that applied to searching that system against registration numbers. 25 He was asked questions relating to the level of access he has in relation to sensitive systems such as the Internal Affairs system. 26 He was questioned as to why there was no linked document produced that filled out the entry under the heading 'related police ops'. He explained that the number 7451/2002/04 had the following meaning: the '04' referred to the group to which Cst Paton was attached at the time, and the number '7451' to the team to which the group belonged. '2002' was a reference to the year. He explained that this was simply a workplace reference number, not, as the applicant suspected, a file reference number. 27 The applicant referred to para 40 of his submissions filed 20 May 2005. There he mentions other events involving him and the Police which he believed must have been the subject of records, ones that would have been revealed had the search been adequate. (The paragraph reflects the contents of an earlier letter sent to the Tribunal dated 9 February 2005.) The matters mentioned in para 40 of present relevance are these: '9. I reported on 19 February 2003 to Constable Mick Hunter at Surry Hills Police Station that a smash repair company did not want to release the indicated motor vehicle as they were allegedly acting on behalf of the police and a finance company. This conduct contravened several sections of the Commercial and Private Inquiry Agents Act 1963. 10. Ms Kay Pappas was queried during the Easter Break 2002 by two Surry Hills police officers in respect of a police investigation relating to the BMW 323Ci motor vehicle, registration number AJH34W, then parked on Ruthland Street, Surry Hills.' 28 Sgt Marilyn Hamilton, of the Privacy and Discrimination Unit, Legal Services, also gave evidence. This was seen as necessary given the contents of the applicant's affidavit filed 2 May 2005 which made reference to the contents of an internal review report prepared by Sgt Hamilton in response to a complaint by the applicant under the Privacy and Personal Information Protection Act 1998, from which report the applicant sought to derive support in his criticisms of the search process that occurred in connection with his FOI request. The applicant's main concern was that in her internal review report Ms Hamilton had described the vehicle as 'stolen' when there was, in his view, no basis for such a description. Ms Hamilton indicated that she may have misunderstood the circumstances that had given rise to repossession of the vehicle. In the Tribunal's view, her possible misdescription of the background circumstances is irrelevant to the present issue, sufficiency of search. Assessment 29 Mr Maddox's initial response was, the Tribunal considers, satisfactory. He searched the main database recording ordinary police operational activity, a database which was readily searchable against the vehicle identifiers given by the applicant. The record showed, on its face, an unproblematic everyday event in the life of a police force, the task of dealing with apparently abandoned motor vehicles. When the applicant provided more detailed information as to what kind of documents he was after, the internal reviewer, Ms Scholz liaised with Sgt Jodie Paton, the officer who had dealt with the vehicle. Ms Scholz supplied additional records, in particular the notebook entry. 30 What constitutes a 'sufficient search' will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant. 31 In the Tribunal's opinion it was reasonable of the agency in the instance of the present request to concentrate on records retrievable from the COPS system and the RTA system. The Tribunal accepts Mr Maddox's explanation that it was not practical to do searches limited to vehicle identifiers against other databases, in particular the CIDS database. 32 It is evident from the course of the proceedings that the applicant was not happy to have searches done against his name. At one stage of the planning meeting process the Tribunal, in the belief that such a search would assist the resolution of the matter, directed that such a search be done (having understood the applicant to be agreeable to that course). The applicant later indicated in strong terms his unhappiness with any personal name search being done. 33 The further searches done during the planning meeting stage against the other non-personal identifiers supplied by the applicant revealed no further information of significance. 34 As to the matters mentioned at points 9 and 10 of para 40 of his submissions, it is not possible to reach any firm conclusion as to the nature of the events described by the applicant as involving Constable Mick Hunter or Ms Kay Pappas, or what records might have ensued from them. 35 In the Tribunal's view, in the circumstances the agency has satisfactorily responded to the request. Order 1. The application for review is dismissed as it relates to part one of the applicant's access request. 2. The matter is to be relisted for a further planning meeting.