B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168

CITATION: B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168 DIVISION: General Division APPLICANT B PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003036 HEARING DATES: 04/08/2000, 19/10/2000 SUBMISSIONS CLOSED: 10/19/2000 DATE OF DECISION: 10/19/2000

BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - Freedom of Information Act - access to documents MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 CASES CITED: REPRESENTATION: In person M Tzannes, barrister ORDERS: Decision of agency affirmed.

1 This application commenced as an application for review of a decision to decline a request for access to documents under the FOI Act on the basis that the agency did not hold any documents relating to the applicant, with one exception. 2 After the application for review was filed, further searches were undertaken giving rise to one further document relating to the applicant being located. 3 (The documents that have been made available are: + a report of contact made with B in the course of a criminal investigation in November 1998, released to him in response to his original application; and + a 'crime information report' recording a report from B, then a taxi driver, of a criminal incident dated 14 May 1977, released to him after filing of his application for review in July 2000.) 4 The applicant continued with his application, as he considered that the agency had failed to locate other documents relating to him. These proceedings consequently have in effect taken the form of an inquiry into whether the agency has undertaken an adequate search. That the Tribunal has such a jurisdiction was determined in an earlier decision in these proceedings made by Judicial Member Smith, delivered 3 May 2000: [2000] NSWADT 52. 5 In correspondence with the agency, the NSW Police Service, the applicant indicated that what he was looking for were documents, and in particular a video film, that he believed were created by the NSW Police and probably by the Special Branch. 6 It was apparent from a combination of the early correspondence and some filed with the Tribunal during the course of these proceedings that the applicant had a deep sense of grievance over injustices that he had felt that he had suffered in his work career arising from the dissemination of the material contained in the documents and a video film, which he believed possibly originated in the Special Branch. He gave evidence at the hearing about this. 7 He gave evidence in relation to certain private events that occurred in 1974 which he believes were surreptitiously filmed. 8 He referred in his written submissions to the highly charged political atmosphere of the early 1970s. He said in evidence that in 1974 he was interested in becoming a political candidate and that a right wing group had fabricated material against him. This appears to be the basis for his conclusion that he might have been under surveillance at that time by the Police, in particular the Special Branch. 9 It is unnecessary, I consider, in these reasons to recite the detail of the particular events of 1974 as recounted in evidence by the applicant, except to say that they involved a sexual encounter with a woman. He believes that there was wide knowledge of these events, and later they became known to others, including personnel of the Australian Tax Office where he worked between 1978 and 1984. He believes that they were taken into account in denying him promotions. 10 As to how he reached this conclusion, he said essentially that people had spoken to him in his time with the Tax Office of there being NSW Police information relating to him that was known to them. Others had given descriptions of the events of 1974 which were so graphic and accurate that he believed they must have seen a film. 11 At the hearing the agency called three witnesses, the officer in charge of the FOI Unit at the time of processing the applicant's request, an officer responsible for managing Special Branch records, and an officer involved with Archives practices of the Police Service. All of these witnesses had been involved in requesting or directly undertaking searches in response to the applicant's request. 12 I will not recite in detail here their evidence. It is found in affidavits that were tendered together with their oral testimony. 13 The key issue for the Tribunal was whether the conclusion that these three officers had reached, that the agency did not hold any documents relating to the applicant other than the ones released (both unrelated to the events of 1974), was sound. If so, it would be open to the Tribunal to conclude that there were no other documents held by the agency in relation to the request, that the request had been met and consequently there was no basis for the application for review. 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. 23 I did raise with the agency and two of its witnesses the possibility that some kind of flag could be incorporated into the agency record systems, so that if any record relating to the applicant does come to light in the future which bears on the events about which he remains concerned that occurrence could be made known to him. The witnesses' answers were that such a flag could possibly be installed. I will leave this course of action to the agency to consider. 24 Finally, though I have not referred to them directly in these reasons, I should acknowledge the helpful written submissions presented by counsel for the agency, Ms Tzannes, as to the law relating to adequacy of search inquiries as articulated by various review tribunals. 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.