Kiss v Commissioner of Police, NSW Police [2007] NSWADT 237

CITATION: Kiss v Commissioner of Police, NSW Police [2007] NSWADT 237 This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: General Division

APPLICANT PARTIES: Jack Kiss RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 073186

HEARING DATES: 11 September 2007

SUBMISSIONS CLOSED: 11 September 2007

EXTEMPORE DECISION DATE: 11 September 2007

DATE OF DECISION: 4 October 2007

BEFORE: Montgomery S - 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

APPLICANT In person REPRESENTATION: RESPONDENT C Weiss, agent

ORDERS: The decision under review is affirmed

REASONS FOR DECISION 1 Mr Kiss applied to the Commissioner under the Freedom of Information Act 1989 ("the FOI Act") and requested: "Video records in digital format (preferably) of telephone conversation between Jack Kiss and callers in Redfern Police Station on 25/11/2006 after 8 pm and 3/12/2006 about 12 pm." 2 A delegate of the Commissioner advised Mr Kiss Advice that a search had been undertaken but that no records could be found that fell within the scope of his request. Mr Kiss sought an internal review of the determination and the original determination was affirmed. 3 Mr Kiss then sought an external review of the determination. The matter came before me for hearing on 11 September 2007. At the conclusion of the hearing I determined that the decision under review should be affirmed and I gave brief reasons for my decision. Mr Kiss has requested written reasons for my decision and these reasons are provided in response to that request. Applicable legislation 4 Under section 16(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. Pursuant to subsection 5(2)(b) of the FOI Act the right to access to government records is subject to such restrictions as are reasonably necessary for the proper administration of the Government. Subsection 5(3)(b) provides that the discretions conferred by the Act are to be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. This right is subject to other provisions of the FOI Act, in particular section 25(1)(a), under which an agency can refuse access to a document if it is an exempt document. 5 Section 6(1) of the FOI Act defines "agency's document" to mean "a document that is held by the agency". The term "document" is defined in section 6(1) to include: … (b) any disc, tape or other article from which sounds, images or messages are capable of being reproduced. 6 Section 58 of the FOI Act 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. The Commissioner's case 7 The Commissioner relies on the reasoning provided in determination of the internal review and on the searches conducted as part of the review. It seems that the delegate misunderstood the nature of Mr Kiss' request as seeking a tape of an alleged telephone conversation and not just the video recordings of him speaking on the phone. Mr Kiss was advised that telephone conversations to the station are not recorded. Video recordings are in fact taken of the station however the recordings of the station for the relevant dates no longer exist. 8 The Commissioner also relies on an affidavit provided by Constable Timothy Cain of the Redfern Local Area Command. In his affidavit Const Cain states as follows: 1. I have been a police officer for in excess of 4 years. I have performed general duties at various Local Area Commands. In May 2003 I attained the rank of Constable and have performed duties in that capacity at the Redfern Local Area Command. 2. On 25 November 2006, Jack Kiss came into Redfern police station in order to make report of a break and enter into his premises in Waterloo. 3. As a result of this complaint I took the necessary details from Jack Kiss to make an entry into the Computerised Operational Policing System (COPS). 4. The computer I was utilising at the front desk was not working correctly hence I returned to my desk to finalise the event. Whilst doing this I needed to gain further information from Kiss, I called the front desk and spoke Kiss in order to gain these details. 5. At no other point in time was a phone call received by Redfern Police Station for Jack Kiss. 6. I have also made enquires on the Computerised Operational Policing System as to 3 December 2006 and can confirm that no events were created on this date in relation to KISS. 7. In any event CCTV footage within police Stations is only held for a period of 6 months. After this period the CCTV footage is taped over. As a result of this if the documents as requested by KISS were at one point in time in existence they would no longer be obtainable by Kiss. 9 The Commissioner contends that the inquiries conducted indicate that the specific documents that Mr Kiss has sought through his FOI application do not exist. Accordingly, it is submitted that the correct and preferable determination has been made and it should be affirmed. Mr Kiss' case 10 Mr Kiss contends that he reported a break-in to his apartment at the Redfern Police Station on 25 November 2006. He dealt with Constable Cain, and whilst at the Police Station he was told that there was a telephone call for him. Mr Kiss says that the caller was the Prime Minister of Australia. Mr Kiss provided an account of his recollections of the conversation that took place between himself and the Prime Minister. 11 Mr Kiss accepts that the CCTV tapes that he requested have been destroyed. However, he contends that the computer record of his attendance "was fraudulently removed from the computer and all related videos were removed from the Redfern Police Station as well to cover up a joint operation between the NSW and Federal Police and the Federal Government which ended up with a need for a cover up." 12 Mr Kiss says that the Tribunal's role is to find out why the tapes do not exist any longer, why there are contradictions in statements and to refer the matter to determine how to punish the Commissioner. He requested that a report be made under section 58 of the FOI Act. He alleged that Timothy Cain and Emma Finlay failed to exercise in good faith a function imposed on them by the FOI Act. Findings 13 The issue for determination is whether the Commissioner has made the correct and preferable decision in determining that the specific documents sought by Mr Kiss through his FOI application do not exist. 14 I have the evidence of Constable Cain, which supports that contention. Mr Kiss disputed the accuracy of some of the contents of Constable Cain's affidavit and Constable Cain was not available for cross-examination. Nevertheless, in my view, the statements in the affidavit that Mr Kiss disputes are not relevant to the issues that I must determine. I accept Constable Cain's evidence as a likely account of the way the Redfern Police Station deals with its CCTV tapes. 15 In my opinion it is probable that at some point there was a tape recording of at least the front of house of the Redfern Police Station recorded on 25 November 2006 and 3 December 2006. However, I am satisfied that if those tapes did exist at some time, they no longer exist. I have no reasonable basis on which I could conclude whether or not the tapes would have shown that Mr Kiss participated in a telephone conversation on either or both of those dates. I have enough acceptable evidence to satisfy me that the tapes do not exist and therefore the decision that they cannot be provided to Mr Kiss is the correct one. 16 Mr Kiss has requested that I make a report pursuant to section 58 of the FOI Act. I am not satisfied that the material before me is sufficient to allow me to form the opinion that an officer has failed to exercise a function imposed by this Act in good faith. Accordingly, I decline to make the requested report. Order The decision under review is affirmed.