Appeal Panel - Internal CITATION: Chapman v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP [2004] NSWADTAP 16 APPELLANT PARTIES: Colin Chapman RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 049009 HEARING DATES: 30/04/2004 SUBMISSIONS CLOSED: 04/30/2004 DATE OF DECISION: 05/13/2004 Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Needham J - Judicial Member; Mapperson K - Non Judicial Member CATCHWORDS: adequacy of orders MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 033003 DATE OF DECISION UNDER APPEAL: 02/20/2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: Chapman v Commissioneer of Police, New South Wales Police [2004] NSWADT 35 APPELLANT REPRESENTATION: In person RESPONDENT D Paterson, solicitor ORDERS: 1. Appeal allowed in part.; 2. Order 11 set aside in so far as it refers to point 6 of the access application. That Order now reads: 'The Agency's decision in respect of paragraph 7 of the applicant's application is affirmed.'; 3. Application for review as it relates to point 6 of the access application is remitted to the Tribunal for determination.; 4. Tribunal Orders varied to include the following Direction made pursuant to s 63(3)(d): '12. That the Respondent take any steps required by the Orders within 21 days of 30 April 2003, i.e. not later than by 21 May 2004.' REASONS FOR DECISION 1 This is an appeal by Mr Chapman ('Mr Chapman') challenging two aspects of a decision, substantially favourable to him, made by the Tribunal under the Freedom of Information Act 1989 ('FOI Act'). The decision is Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35. 2 His first objection relates to the contents of para [94] of the reasons for decision. The second objection relates to the adequacy of the orders made. 3 The respondent, the Commissioner of Police ('the Agency') does not appeal against those parts of the decision that were adverse, but disagrees with Mr Chapman's submission that there was anything problematic about para [94] of the reasons for decision. 4 As to the first objection, Mr Chapman's assertion is that one part of his application for review was not dealt with by the Tribunal – point 6 of the original access application, phrased as follows: 'all documents that indicate Hawkesbury LAC patrol assignments for 30/5/02'. These documents were seen by Mr Chapman as possibly shedding light on an interaction that occurred on that day between Mr Chapman's son and the police, the surrounding details of which need not be reiterated here. 5 As to the second objection, the Agency indicated at hearing that it was prepared to meet the concern by way of a further order. The second objection is dealt with later in these reasons. Reopening Point 6 of the Access Application 6 Mr Chapman lodged his application for review with the Tribunal on 6 January 2003. His access application pursuant to s 17 of the FOI Act made on 31 October 2002 had not been dealt with. The time period of 21 days had elapsed: s 18(3). Accordingly the application was deemed to be refused in its entirety: s 24(2). 7 There was a planning meeting at the Tribunal on 25 February 2003. The Tribunal, pursuant to s 65 of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act'), remitted the application to the Agency for determination. The Agency issued an internal review determination dated 13 March 2003. 8 Some documents were released, there were objections to the release of other documents. The determination stated that some could not be located. As to the documents sought under point 6 of the access application, the internal review determination stated: 'In accordance with section 28(1)(b) the applicant is hereby advised that there are no documents held by this agency falling within the ambit of the application.' 9 There were further directions made by the Tribunal on 25 February 2003. The Agency failed to comply with them. The Agency did not file and serve by 25 March 2003 a summary of the facts to be stated by each witness. Accordingly the applicant was not in a position to comply with directions applying to him to provide arguments in response, and a summary of witness statements by 15 April 2003. Mr Chapman sent a letter of complaint over this situation to the Registrar of the Tribunal on 16 April 2003. Mr Capper for the Agency apologised by letter dated 30 April 2003, but gave as an explanation that the Agency had not been clear that Mr Chapman continued to wish to press his application. He promised to respond, but did not do so until the day of the hearing. 10 At the planning meeting, the application for review had been listed for hearing on 20 May 2003. On that day Mr Capper appeared for the Agency, and Mr Chapman appeared in person. 11 Mr Capper gave a further explanation for his delay and filed submissions. Clearly Mr Chapman was placed at a disadvantage by not being given prior access to the submissions. 12 Clearly it was not possible for the full hearing to occur, especially as the Agency had not brought any witnesses to give evidence in support of the claims as to the exemptions and as to the sufficiency of search. The Tribunal proceeded, in effect, to take an inventory of the Agency's current position. The day turned into another planning meeting (or case conference). 13 The Agency advised that there had been some further developments - in particular that the investigation relating to a complaint made by Mr Chapman and his son over police conduct had been completed. This bore on the response to point 1 of the original access application. In that regard, Mr Capper had at the outset of the hearing provided Mr Chapman with a bundle of documents which he said fully responded to point 1 of the request. The Tribunal directed that there be a further determination, to be made by 2 June 2003. The determination issued on 6 June 2003, and was forwarded to the Tribunal under cover of letter dated 23 June 2003. 14 At the hearing on 20 May 2003 the Tribunal also discussed with the parties how the matter might now proceed. The parties indicated satisfaction with the Tribunal dealing with the matter on the papers, and not resuming for a further hearing. Section 76 of the Tribunal Act provides: ' 76 Circumstances in which hearing may be dispensed with The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.' 15 The determination of 6 June 2003 varied the previous determination in respect of the documents sought under point 1 of the application, but otherwise stated: 'In relation to the remaining materials sought in your application, I advise that I affirm my decision as outlined in the original Internal Review.' 16 Ahead of receipt of the determination, Mr Chapman had on 2 June 2003 lodged a submission of 3 pages plus attachments. 17 In the letter of 23 June 2003 to the Tribunal Mr Capper noted that he understood that Mr Chapman's attitude to the 6 June 2003 determination was that it remained inadequate, and that he wished to have his application for review determined by the Tribunal. There was further correspondence between the Registry, Mr Chapman and Mr Capper. The Agency indicated that it anticipated that its further submissions would be filed within 14 days of 23 June 2003. There were in fact no further submissions from the Agency. It filed no evidence in support of its reliance on certain exemptions. 18 There is a detailed letter from Mr Chapman to the Registry of the Tribunal dated 27 October 2003 protesting over the failure of the Agency to provide its submissions. In a further letter dated 28 October 2003 he protested over the delays surrounding his case. There is a further hand-written note to the Registry dated 18 November 2003 from Mr Chapman along similar lines. Decision 19 In its decision published 20 February 2004 the Tribunal did not deal with point 6 of the access application, stating: ' Documents requested in paragraph 6. 94 In paragraph 6 of the Applicant's FOI application, he requests 'all documents that indicate Hawkesbury LAC patrol assignments for 30/5/02'. The Applicant stated that he sought these documents in order to ascertain the duties assigned to various officers on the day of his son's arrest. The Agency's determination was that it did not hold any documents matching the Applicant's description. The Applicant accepted that the Agency does not hold such documents and consequently its decision in relation to paragraph 6 is affirmed.' 20 Mr Chapman's assertion is that the Tribunal misunderstood his position. He said that he had not conceded that the Agency did not hold any documents matching the description given in his application. Ms Paterson said that such a concession had been made by Mr Chapman. 21 The Appeal Panel has had the relevant section of the hearing transcribed: - 'Presiding Member: Alright then Point 6. The patrol assignments for the 30th of May. No documents held by the Agency. That's what you're saying is it? Mr Capper: That's correct. Presiding Member: I am not sure exactly sure what you mean when you ask for that Mr Chapman. What do you mean by patrol assignments? Mr Chapman: I was trying to ascertain what the responsibilities were of those police officers on that day. Presiding Member: I see. Mr Chapman: Do they give them a task they have got to do that day or do they just go wandering and do whatever they want to do? That's what I was trying to identify. Presiding Member: Right. Mr Capper: This is about documents not information so. Presiding Member: Yeah/no - that's what he is trying to identify but he has asked for that. Mr Capper: Well there is nothing to produce. Presiding Member: No. Mr Chapman: Well if that's the case that's the case. I don't press that. Presiding Member: Alright. So that's one thing you don't have to address. Point 7.' 22 Mr Chapman's contention to the Appeal Panel is that in paragraph (11) of his submissions dated 2 June 2003, he kept alive his application for review as it related to point 6. While the paragraph numbering is not tied to his original access application, it is clear that at paragraph (10) he is dealing with point 5 of his application; and that at paragraph (11) he is dealing with point 6 of his application, where he states: '(11) The requested patrol assignments were not provided. The application relies upon s 19(1) of the FOI Act. Also, it is in the public interest that the agency be transparent and accountable for its actions. The applicant relies upon s 5(1)(a), s 5(2)(a), s 5(3) of the FOI Act.' [Section 19(1) provides: (1) An agency shall not refuse to accept an application merely because it does not contain sufficient information to enable the document to which it relates to be identified without first taking such steps as are reasonably practicable to assist the applicant to provide such information. The other references are to the objectives of the FOI Act in particular the conferral of a right of access (s 5(1)(a)), the aim that the Act seeks to ensure that the operations of government especially in its dealings with members of the public is made available (s 5(2)(a)) and the statement of the intention of Parliament that the Act be interpreted and applied so as to further the objects of the Act (s 5(3)(a)).] 23 Mr Chapman is self-represented. Clearly he has been dealt with badly by the Agency in respect of his access application. On this matter, the Tribunal said: ' Report to the Minister 96 The Applicant requested that the Tribunal report the conduct of the Agency to the responsible Minister under s 58 of the FOI Act. Section 58 provides: 58 Tribunal may report improper conduct If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency. 97 The Agency has been extremely tardy in complying with the time limits imposed by the Act and the Tribunal. Furthermore, in some cases it has given conflicting and inadequate reasons for refusing to give the Applicant access to certain documents. While I appreciate that applications under the FOI Act can involve a considerable amount of time and effort on the part of an agency, compliance is not discretionary. If an Agency wishes to rely on an exemption, then it should only do so when it has relevant and persuasive evidence to support its claim. The Applicant and this Tribunal have expended a great deal of time and effort in examining the Agency's claims for exemption. In several instances the basis for the Agency's claim for exemption was extremely weak. While the Agency's handling of this matter was below the standard that the public is entitled to expect, I am not satisfied that any officer failed to exercise his or her functions in good faith and consequently I do not intend to report the conduct of the Agency to the responsible Minister.' Whether Error 24 Normally we would take the view, like the Tribunal did, that Mr Chapman though self-represented should be treated as bound by the statement he made on 20 May 2003. FOI cases routinely proceed through a number of stages before the Tribunal. The planning meetings are a form of case conference and have as one of their aims issues-reduction. Often concessions of the kind Mr Chapman would appear to have made in this case are made at planning meetings. 25 Mr Chapman's position is that he was not intending to withdraw point 6 of his application by his statement on 20 May 2003. It is difficult to interpret his statement on that day in any other way. 26 Mr Chapman's language in paragraph (11) of his submissions of 2 June 2003 is obscure, but we are satisfied that he was again seeking to press point 6. He does not refer to his statement of 20 May 2003. 27 It is not desirable to release an access applicant from a concession made at a planning meeting or similar event. There is a clear risk of prejudice and inconvenience to the Agency if that occurs. A decision in Mr Chapman's favour will reopen point 6, and put the Agency to further inconvenience and expense. 28 On the other hand the Tribunal may not have perceived that paragraph (11) of his submissions amounted to a reopening of point 6. There is no reference in the reasons of the Tribunal to the subsequent communication by Mr Chapman. Had the Agency gone on, and fulfilled its commitments under the directions made by the Tribunal, the Agency might have brought this apparent reversal of position by Mr Chapman to the Tribunal's attention. 29 At the hearing before the Appeal Panel Mr Chapman indicated that what he meant by his comments at hearing on 20 May 2003 was if what was said by Mr Capper was true then there was no point pressing the application. 30 On balance our view is that a procedural error did occur in that Mr Chapman's statement - in effect reopening point 6, well ahead of the time at which the Tribunal moved to determine the matter on the papers - does not appear to have been considered by the Tribunal. Consequently the Tribunal's determination as it relates to point 6 should be set aside, and this matter remitted to the Tribunal for determination. Further Direction 31 The second matter raised does not, in our view, involve a submission that there was an error of law. Mr Chapman complains that the Agency is presently not responding in a timely way to the Orders made in his favour by the Tribunal below, behaviour which, he says, has been characteristic of the case. It became clear that Ms Paterson for the Agency was not opposed to some timetable being set for compliance with those Orders to which the complaint is relevant, i.e. those where the application was remitted to the Agency for reconsideration. That such a power is reposed in the Tribunal is clear: see Tribunal Act, s 63(3)(d), set out in full later in these reasons. 32 This would appear to be a situation where it is in the interests of justice to extend the appeal to the merits without an error of law first being shown - simply to improve the order made below in a way that is acceptable to the parties. A further order by consent has been entered by the Appeal Panel to deal with this aspect of the appeal. The further order inserts a term directing the Agency to take any steps required by the orders within 21 days, i.e. by 21 May 2004. That order was made at the conclusion of the hearing on 30 April 2004 and commenced then. Present Status of Application for Review 33 At the end of the hearing before the Appeal Panel, there was a short discussion as to what the present status of the application for review was. In its decision the Tribunal has dealt with Agency claims that it did not have in its possession documents relevant to the request. The Tribunal was not satisfied that a sufficient search had been undertaken. Six of the eleven orders belong to this category. 34 The powers of the Tribunal when dealing with an application for review are found in s 63 of the Tribunal Act which provides relevantly: ' 63 Determination of review by Tribunal … (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.' 35 The power used by the Tribunal in this instance was that contained in s 63(3)(d) as it related to the matters covered by Orders 1, 3, 4, 7, 8 and 9. (Orders 2, 5 and 10 involved setting aside the Commissioner's determination in relation to documents that did exist.) 36 In its final determination the Tribunal used the s 63 power, in contradistinction to the s 65 power which is available prior to final determination. Section 65 provides: ' 65 Power to remit matters to administrator for further consideration (1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator. (2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a new decision in substitution for the decision set aside. (3) If the administrator varies the decision: (a) the application is taken to be an application for review of the decision as varied, and (b) the person who made the application may either: (i) proceed with the application for review of the decision as varied, or (ii) withdraw the application. (4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside: (a) the application is taken to be an application for review of the new decision, and (b) the person who made the application may either: (i) proceed with the application for review of the new decision, or (ii) withdraw the application.' 37 As to the position that now applies, s 66 is also relevant: ' 66 Effect of a review decision (1) A decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision. (2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken: (a) to be the decision of the administrator (other than for the purposes of a review under this Chapter), and (b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise.' 38 Though this question has not been fully argued before us, our view is that the Tribunal determination under appeal finally determined the application for review before it (now with the one exception of point 6 of the access application). Accordingly any new determination by the Agency becomes a fresh determination. If in due course Mr Chapman wishes to bring that determination back to the Tribunal, he will need to file a new application for review. Orders 1. Appeal allowed in part. 2. Order 11 set aside in so far as it refers to point 6 of the access application. That Order now reads: 'The Agency's decision in respect of paragraph 7 of the applicant's application is affirmed.' 3. Application for review as it relates to point 6 of the access application is remitted to the Tribunal for determination. 4. Tribunal Orders varied to include the following Direction made pursuant to s 63(3)(d): '12. That the Respondent take any steps required by the Orders within 21 days of 30 April 2003, i.e. not later than by 21 May 2004.' 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.