McGuirk v Commissioner of Police, NSW Police (No. 2) [2008] NSWADT 325

CITATION: McGuirk v Commissioner of Police, NSW Police (No. 2) [2008] NSWADT 325

DIVISION: General Division

APPLICANT (Gerard) Michael McGuirk PARTIES: RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 063404

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 20 June 2008

DATE OF DECISION: 8 December 2008

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Access to documents – personal affairs

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29] McGuirk v Commissioner of Police, New South Wales Police [2008] NSWADT 72 CASES CITED: McGuirk v Attorney General v Attorney General's Department [2007] NSWADT 138 Sawires v Commissioner of Police [2008] NSWADT 291 University of NSW v McGuirk [2006] NSWSC 1362

APPLICANT In person REPRESENTATION:

RESPONDENT J McDonnell, solicitor

ORDERS: 1. The decision of the respondent the subject of review is affirmed 2. Mr McGuirk's application for costs is dismissed.

REASONS FOR DECISION Introduction 1 This is an application by Mr McGuirk seeking review of a decision of the respondent Commissioner, made pursuant to the Freedom of Information Act 1989 ('the FOI Act') in regard to an FOI request he made on 17 August 2006. In that request Mr McGuirk sought access to nine categories of documents. 2 On 6 March 2008, I made a decision in regard to Mr McGuirk's application for review: see McGuirk v Commissioner of Police, New South Wales Police [2008] NSWADT 72 ('my earlier decision'). In that decision, I made the following orders: "1. The decision of the Commissioner in regard to the deletions to the documents falling within Item 1 (Duty Rosters) is set aside and remitted for reconsideration by the Commissioner in accordance with these Reasons for Decision, pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997. 2. The decision of the Commissioner in regard to the CCTV video cartridges (Item 5), and pages 124 and 125 of Item 6, is remitted to the Commissioner for reconsideration, in accordance with these Reasons for Decision, pursuant to section 65 of the Administrative Decisions Tribunal Act 1997. 3. On or before 27 March 2008 the Commissioner to file and serve his decision, following his reconsideration, in regard to the documents referred to in Order 2 above. 4. The matter, insofar as it relates to the Commissioner's decision in regard to the documents referred to in Order 2 above, is set down for further directions on Tuesday, 15 April 2008 at 11:00 am." 3 On 23 April 2008 the Commissioner filed and served his re-determination in regard to the duty rosters, the CCTV video cartridges and pages 124 and 125. It is only the Commissioner's re-determination in regard to the latter documents which remain the subject of review in this application: see section 65(1) and (2) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') and cf. section 63 of the ADT Act. 4 In response to the respondent's re-determination Mr McGuirk filed and served a letter, dated 23 April 2008, in which he advised as follows: '1. I press my request to be provided with full, unedited, copies of the two videotapes which were identified as falling within the scope of my application made under the Freedom of Information Act 1989 dated 18 August 2006. I expressly note that I do not agree with the statement purportedly made by 'In Antrum' on 23 April 2008 (the date of this letter) that: "There appears to be no dispute that the disclosure of images of persons other than the Applicant and Police Officers would breach cl.6.' In my opinion, there is no reasonable basis for the refusal by the Commissioner to release these two tapes in their entirety and without any modification. 2. I also press my request to be provided with pages 124 and 125 of the relevant complaint file. Again, I submit that there is no reasonable basis for the Commissioner to refuse to provide me with access to these documents." 5 On 26 May 2008, at directions hearings, the parties agreed that the decision of the Commissioner, as it related to the CCTV video cartridges and pages 124 and 125, should be determined on the papers that had been filed or were to be filed in accordance with consent orders made that day. Issues 6 The main issue for determination is whether the decision of the respondent in regard to the CCTV video cartridges and pages 124 and 125, was the correct and preferred decision: see section 63(1) of the Administrative Decisions Tribunal Act 1998. In regard to the CCTV video cartridges the issue was limited to the question as to whether it was practicable to provide Mr McGuirk with a copy of the cartridges with the exempt matter deleted. The exempt matter being that which concerned the personal affairs of persons other than Mr McGuirk (i.e. clause 6 of Schedule 1 exempt matter): see [24] to [39] of my earlier decision. For the reasons set out below I have found that the decision of the Commissioner in regard to these documents is the correct and preferred decision and should be affirmed. 7 In his written submissions, Mr McGuirk's made an application for costs under section 88 of the ADT Act. For the reasons set out below I have dismissed Mr McGuirk's application for costs. 8 Mr McGuirk and the Commissioner each raised an ancillary issue in their respective submissions. Mr McGuirk made allegations of improper conduct by officers of the respondent and its legal advisers, which he asserted the Tribunal was 'obliged' to report to the relevant Minister under section 58 of the ADT Act. In my opinion, for the reasons set out below, section 58 does not have the breadth of operation contended for by Mr McGuirk, nor is there any material arising out of this application for review on which the Tribunal could form an opinion that an officer of the NSW Police has acted in the manner specified in that section. 9 The Commissioner's ancillary issue has been referred to the Registrar for her attention and I do not propose to deal with it any further. Is the Commissioner's decision the correct and preferred decision? 10 In my earlier decision, at [24], I explained that the CCTV video cartridge (a copy of which was provided to the Tribunal on a confidential basis), covered two 24 hour periods from about 6.40 am on the morning of 11 August 2006 to about 6.40 am on the morning of 13 August 2006. In his FOI request Mr McGuirk had only sought access to that part of the CCTV footage in which he was featured. I viewed the CCTV footage and at [26] to [28] in my earlier decision I found: "26 In regard to that portion of each CCTV video cartridge, relevant to Mr McGuirk's request, there are images of police officers, other workers at the police station, Mr McGuirk and other persons who appear to have been detained or questioned by police. In my opinion, it is only the images of the last category of persons, who are identifiable from the image, that are exempt under clause 6 of Schedule 1 of the FOI Act. That is, the image concerns the personal affairs of those persons (i.e. if they are identifiable from the image) and disclosure of these would be an unreasonable disclosure. 27 Images of the on duty police officers and other workers are not exempt on the basis of the principles set out in Perrin's case. Nor are the images of Mr McGuirk or other persons who appear to be performing work duties at the station. The image of Mr McGuirk comes within clause 6(2) and therefore expressly excluded from the exemption. 28 It is noted that a large portion of the video footage to which Mr McGuirk seeks access, contains no image of any person. This portion of the footage does not fall within the clause 6 exemption." 11 I went on to find that consideration had not been given to the requirements of subsection (25)(4) of the FOI Act. That subsection, as I explained in my earlier decision, provided that an agency was not to refuse access to an exempt document if it was practicable to give access to a copy of the document from which the exempt matter was deleted and if it appeared that the FOI applicant would wish to be given access to such a copy. It was this issue that had been remitted to the Commissioner for re-determination. 12 In his re-determination, the Commissioner relied on a statement of evidence, dated 18 October 2007, of Sergeant Streatfield of the Forensic Imaging Unit, which had been tendered in the application of Sawires v Commissioner of Police [2008] NSWADT 291, where a similar issue arose. In that statement Sergeant Streatfield said that it was not the function of the FOI Unit to edit CCTV video cartridges, as this would create a diversion of at least one staff member from his or her normal operational duties, which would have a significant impact on the capacity of the NSW Police to fulfil its primary function of prosecuting offenders. The Commissioner went on to say that there was nothing in the circumstances of this application which caused him to deviate from the policy as set out by Sergeant Streatfield. Accordingly, the Commissioner affirmed his earlier decision to refuse Mr McGuirk access to a copy of the CCTV video cartridges. 13 The Commissioner also said that Mr McGuirk had more recently been given access to the CCTV video cartridges, pursuant to a subpoena, issued by the Burwood Local Court, at his request. Mr McDonnell, on behalf of the Commissioner, had informed the Tribunal of this at the directions hearing on 27 November 2007. Mr McGuirk said he pressed his application because the Commissioner had produced to the Court one full tape and two overlapping tapes. In the re-determination, the Commissioner responded to this by saying the following: 'I have not been able to ascertain how this happened, because I understand from the FOI Unit that the only tapes it has held were the two produced to the Burwood Local Court and the Tribunal.' 14 As mentioned above, in his written submissions, Mr McGuirk rejected being given an edited version of the CCTV video cartridges. Instead he continued to demand access to the entire length of the CCTV footage on these cartridges. In these circumstances, section 25(4) of the FOI Act can have no application as it is dependent on the FOI applicant wishing to have a copy with the exempt matter deleted. 15 For the reasons set out in my earlier decision, I found that the CCTV video cartridges were an exempt. 16 Notwithstanding my finding in my earlier decision that the CCTV video cartridges were an exempt document within clause 6 of the FOI Act, I have considered whether the correct and preferred decision is to grant Mr McGuirk access to the entire copy of the CCTV video cartridges: see University of NSW v McGuirk [2006] NSWSC 1362. In my opinion it is not. The personal information of persons other than Mr McGuirk is of a sensitive nature in that it shows people being questioned, charged and detained by police. It is not information that people would generally wish to have released under FOI. Nor have the persons in question been consulted in regard to its release (see section 31 of the FOI Act) and if they were to be consulted this would undoubtedly cause these persons considerable surprise and embarrassment to be contacted by the police again after the incident had been either resolved or forgotten. The fact that Mr McGuirk has obtained a copy of the CCTV video cartridges and he is now fully aware of the information contained in the cartridges does not in my view mean that they should be released to him. It is noted that, subject to the leave of the court, Mr McGuirk is prevented from using the information on these cartridges for any purpose other than for the proceedings to which the subpoena related. Wider dissemination of the information on the CCTV video cartridge is thereby protected. The same would not apply if the CCTV video cartridges were released under the FOI Act. 17 However, in determining whether the correct and preferred decision is to grant or refuse Mr McGuirk access to these exempt documents, the relevant factors in this application must be considered in the context of the objects of the FOI Act as set out in section 5 of that Act. As I have said the information on these CCTV video cartridges is of a very sensitive nature, which members of the public would not ordinarily consent to be released to another member of the public. Accordingly, I find that the correct and preferred decision is to refuse Mr McGuirk access to these tapes. 18 On the basis of the respondent's re-determination, I am also satisfied that pages 124 and 125 are documents that relate to the Ombudsman's complaint handling functions and are exempt by virtue of section 9 of the FOI Act (see section 6 and definition of 'exempt document' paragraph (b)). I am also satisfied that the decision of the respondent to refuse Mr McGuirk access to these pages is the correct and preferred decision. Section 58 of the ADT Act 19 Section 58 of the FOI Act provides as follows: '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.' 20 I made some preliminary observations in regard to this issue in my earlier decision at [48] to [50]. 21 In his subsequent written submissions, Mr McGuirk said the following: '35. But the central history described above demonstrates a profound and ongoing failure by the Commissioner, NSW Police Force, and by his legal representative, the Crown Solicitor, to comply with their obligation under the FOI Act, the law generally, and orders made by the Tribunal. 36. These failures are not isolated instances. … It is irrefutably clear that the Commissioner and his legal representatives have engaged – and continue to engage – in a course of conduct designed to frustrate the intent and clear words of the FOI Act. The only reasonable inference (in the absence of evidence to the contrary) open to the Tribunal is that the Commissioner and his legal representatives have engaged in this conduct in order to 'cover up' improper and arguably corrupt conduct by certain officers of the NSW Police Force. 37. Under the circumstances, the Tribunal is obliged to make a report of the Commissioner's conduct to the relevant Minister pursuant to the power conferred on the Tribunal under section 58 of the FOI Act.' 22 As pointed out in my earlier decision, at [49], section 58 only relates to specified conduct of specified persons. That conduct must be: conduct of an officer of an agency; and conduct relating to a function or obligation imposed on that officer under the FOI Act; and conduct which the officer failed to exercise in good faith. 23 Section 58 does not relate to the legal representatives of an agency in proceedings before the Tribunal, or any other officer of the agency. 24 The agency officers whose conduct may be the subject of section 58 of the FOI Act include the officer responsible for making, or who made the initial determination (e.g. section 24 of the FOI Act) or the internal review determination (i.e. section 34 of the FOI Act). It would also include the officer responsible for making a re-determination (if any) as ordered by the Tribunal (sections 63 and 65 of the ADT Act). 25 Section 58 does not vest in the Tribunal a power to inquire into the specified conduct of an officer of an agency. That remains with the agency, the Ombudsman and other relevant investigatory agencies who are responsible for inquiring into inappropriate conduct of officers of a Government agency. 26 Section 58 is merely a provision that expressly enables the Tribunal to bring to the attention of the responsible Minister or agency incidents of conduct of the type specified in that section. This can be done in the manner the Tribunal determines to be the most appropriate in the circumstances. Its purpose is to inform the Minister of the agency of conduct by the responsible officers of his/her agency who deliberately fail to exercise their functions and obligations under the FOI Act in accordance with the objects and spirit of that. 27 The fact that a relevant officer, whose conduct is subject that specified in section 58, failed to make his/her determinations within the time prescribed in the FOI Act or that the determination that was made was incorrect or made on a wrong basis will not mean that the officer has failed to exercise in good faith his/her functions or obligations under the Act. That delay or incorrect basis must be shown to be for an intentional improper basis. 28 In this application D. Stuart, Co-Coordinator, Freedom of Information made the first decision. As mentioned above, there was a dispute as to whether this was an original determination under section 25(1) of the FOI Act or whether it was an internal review determination under section 34 of that Act. Ultimately it was agreed that it was an internal review determination which meant that the original decision was a deemed refusal decision (see section 24(2) of the FOI Act). An agency is given 21 days to respond to an FOI request and if it fails to do so the FOI applicant has an immediate right to seek an internal review, which Mr McGuirk did in this application. N Antrum made the re-determination and although this was also not made within the time ordered, in my view, on the material before the Tribunal there is no evidence to suggest that the delays were so as to achieve an improper purpose. Accordingly, I am unable to form an opinion that either officer failed to exercise in good faith the functions or obligations imposed on them under the FOI Act when dealing with Mr McGuirk's FOI application. Costs 29 The Tribunal's power to award costs is set out in section 88 of the ADT Act. It is a discretionary power that can only be exercised where the Tribunal is satisfied that there are 'special circumstances' warranting an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29]. 30 The principles that govern this power of the Tribunal are now well established and have been set out in previous decisions of an application for review by Mr McGuirk: see McGuirk v Attorney General v Attorney General's Department [2007] NSWADT 138 at [44] and [45]. In that application it was the respondent who made an application for costs. 31 It is unnecessary to repeat these principles other than to state that the onus is on Mr McGuirk to establish that there are 'special circumstances' that warrant an order for costs, or in other words the conduct of the respondent in these proceedings has been such that they have disadvantaged him in a way that required him to incur unnecessary costs in prosecuting his application. 32 In his written submissions, Mr McGuirk made reference to the various steps taken by the Commissioner in determining his FOI request the subject of this application and the progress of his application before the Tribunal, in particular the failures by the Commissioner to comply with orders that had been made to progress the matter. Reference was also made to an earlier FOI request he had made. Mr McGuirk then made the following submissions in regard to costs: '38. The conduct of the Commissioner (and of his legal representatives) clearly amounts to special circumstances warranting an award of costs. The Tribunal is under an obligation to do all in its powers to prevent the subversion of the FOI Act by agencies and their legal representatives. The appropriate order for the Tribunal to make is that the Commissioner and the Crown Solicitor are jointly and severably liable for all costs incurred by the Applicant which are directly related to, or incidental to, his application made under the FOI Act dated 18 August 2006.' 33 In its submissions the respondent challenged various assertions made by Mr McGuirk in regard to the manner in which the proceedings progressed in this application. 34 In my opinion, the basis on which Mr McGuirk has made his application for costs is misconceived. First, under section 88 of the ADT Act costs can only be awarded in regard to costs incurred a result of this application. That is, those costs that have arisen during the course of and relating to these proceedings. They cannot be awarded for costs incurred prior to the application being lodged. Secondly, an award of costs cannot be punitive, it must relate to actual costs that were incurred by the party seeking costs during the course of or relating to the proceeding in which the cost application has been made. 35 In regard to these proceedings, it is correct to say that, when this application was before the Tribunal initially the Commissioner failed to comply with orders that had been made by the Tribunal for the progress of the matter and the order made in my earlier decision in regard to the re-determination. The Commissioner submitted that the delay in regard to the initial orders was due to the fact that Mr McGuirk's application involved important issues relating to the Tribunal's jurisdiction which were ultimately not pursued. As I have mentioned, the issue was whether the decision for which Mr McGuirk had sought review was an original determination or an internal review determination. In regard to the other order, Mr McGuirk acknowledged in his submissions that the delay in compliance was not long and that an apology had been given at the relevant time. 36 In my opinion, in the circumstances of the progress of this application, the delays by the Commissioner in complying with orders of the Tribunal, was not sufficient to constitute special circumstances. The Commissioner was entitled to consider jurisdictional issues and while these should have been addressed earlier than they were, the delay in my view was not such that it prejudiced Mr McGuirk in such a way to constitute special circumstance that warranted a cost order. Accordingly, Mr McGuirk's application for costs is dismissed. Orders The Tribunal orders: 1. The decision of the respondent the subject of review is affirmed 2. Mr McGuirk's application for costs is dismissed.