Trau v Minister for Police [2002] NSWADT 180

CITATION: Trau v Minister for Police [2002] NSWADT 180 DIVISION: General Division APPLICANT PARTIES: Jerzy Trau RESPONDENT Minister for Police FILE NUMBER: 023052 HEARING DATES: 16/05/02 SUBMISSIONS CLOSED: 05/16/2002 DATE OF DECISION: 09/25/2002

BEFORE: Robinson MA - Judicial Member APPLICATION: 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 Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 B v Commissioner of Police, New South Wales Police Service [2000] NSWADT 168 CASES CITED: Beesley v Commissioner of Police, New South Wales Police Service (GD) [2001] NSWADTAP 8 Murre (No 2) v Commissioner of Police, New South Wales Police Service [2001] NSWADT 175 Trau v Commissioner of Police, New South Wales Police Service [2001] NSWADT 215 APPLICANT REPRESENTATION: In person RESPONDENT J Tunks, solicitor ORDERS: The applicant's application for review is dismissed. The decision of the respondent is affirmed.

1 The applicant made an application for review of a reviewable decision made under the Freedom of Information Act 1989 ("FOI Act") giving the applicant copies of certain documents relating to him. The respondent says that there are no more relevant documents held. The applicant contends that there must be some further documents relating to him in the respondent's files and challenges the adequacy of the respondent's search for the documents. As a result, the hearing before the Tribunal was, in effect, an inquiry into the adequacy of the respondent's search. Adequacy of Search 2 The proper basis for and approach of the Tribunal in such an inquiry is set out in Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 esp at [8] & [13]. In short, the Tribunal must consider whether, on the evidence before it, the correct or preferable exercise of the power in s 24 of the FOI Act (as to how FOI applications are determined by an agency) was to refuse access to a document on the ground the document was not in fact "held" by the agency. Section 24 applies to the respondent Minister by operation of s 38 of the FOI Act. 3 The approach adopted by the Tribunal in Beesley's case was adopted in a number of other cases, eg: in B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168 (affirmed on appeal, Beesley -v- Commissioner of Police, New South Wales Police Service (GD) [2001] NSWADTAP 8); Murre (No. 2)-v-Commissioner of Police, New South Wales Police Service [2001] NSWADT 175; and Trau -v- Commisioner of Police, New South Wales Police Service [2001] NSWADT 215. The FOI Application 4 On about 17 January 2002 the applicant made a written application to the respondent Minister pursuant to section 35 of the FOI Act. Under that provision, a person has a legally enforceable right to be given access to a Minister's documents in accordance with that Act. In that application, the applicant sought access to: