Lee v Commissioner of Police, New South Wales Police [2006] NSWADT 9

CITATION: Lee v Commissioner of Police, New South Wales Police [2006] NSWADT 9

DIVISION: General Division

APPLICANT PARTIES: Steven Lee RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 053123

HEARING DATES: 12/07/05, 17/08/05

SUBMISSIONS CLOSED: 09/14/2005

DATE OF DECISION: 01/09/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: access to documents - adequacy of search - access to documents - personal affairs - access to documents - substantial and unreasonable diversion of agency's resources - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - personal affairs - Freedom of Information Act - access to documents - substantial and unreasonable diversion of agency's resources

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Freedom of Information Act 1989 Listening Devices Act 1984

CASES CITED: Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257

APPLICANT In person REPRESENTATION: RESPONDENT W Pisani, agent

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 Mr Lee is currently in incarceration having been convicted of murder. He applied to the Commissioner under the Freedom of Information Act 1989 ("the FOI Act") seeking "Copies of master tapes 38 and 40 recorded during Operation Merlin that was admitted into evidence and used at trial." 2 Sergeant Mark Maddox, the Co-ordinator, Freedom of Information Section of the New South Wales Police Service, dealt with the application and advised Mr Lee that the master tapes were unable to be located however a number of related tapes were located. These were "cuts from a master tape 38". 3 Mr Lee was not satisfied with that determination and sought an internal review. Mr David Shepherd, the Acting Deputy Director Legal Services, undertook the internal review. Mr Shepherd affirmed Sergeant Maddox's determination and stated that extensive inquiries conducted as part of the processing of the application had failed to locate the tapes that Mr Lee has requested and that he is of the opinion that the NSW Police no longer holds them. Background 4 In the early 1990s Mr Lee was the subject of investigation in relation to the murder of Feng Shi. A number of audio tapes were recorded as part of a police operation known as Operation Merlin. The tapes that Mr Lee has sought were included in those tapes. The officer in charge of Operation Merlin was Detective Sergeant Joseph Khalifeh. 5 Mr Lee was subsequently charged in relation to the murder of Feng Shi. The trial commenced on 18 July 1997 and was of 26 days duration, comprising a 1400 page transcript. Mr Lee was ultimately convicted of the murder. His appeal to the Qld Court of Appeal was unsuccessful and he is currently serving a term of imprisonment. The Griffith University's Innocence project is assisting him to undertake a further appeal to the High Court. Mr Lee says that the tapes that he has sought were translated and used in evidence in the trial. He says that the tapes were wrongly translated and he seeks the master tapes so that he can have an accurate translation made for the purposes of his appeal. Mr Lee is particularly interested in a tape for the period of time 7.25pm to 7.59pm on 6 January 1994. 6 At the time of Operation Merlin Detective Sergeant Khalifeh was attached to the Region North West Major Crime Squad ("RNWMCS") based at Parramatta and he was later transferred to Blacktown Local Area Command. He has since retired and is no longer a serving NSW Police Officer. 7 The RNWMCS was disbanded in late 1996 and the general procedure adopted at the time relating to case file items, such as the master tapes sought by Mr Lee, was that they were entered as exhibits at the nearest Police Station, which in this case was Parramatta Police Station. Following receipt of Mr Lee's FOI application, a search was conducted in an effort to locate master tapes relating to Operation Merlin. This included a search of the Parramatta and Blacktown LAC Exhibit Sections. These searches proved to be unsuccessful. The only items relating to Operation Merlin that were located are 10 tapes that are cuts from master tape 38. 8 Following commencement of proceedings in the Tribunal the Commissioner's agent, Sergeant Pisani, undertook to have a further search conducted. As a result, 19 tapes, which appear to be related to Operation Merlin, were located. These comprised of 13 tapes with the number '38' and 6 tapes with the number '40'. Sergeant Pisani indicated that the words spoken on the tapes are in a Chinese dialect and contain the voices of persons other than Mr Lee. An affidavit dated 16 August 2005 and sworn by Sandra Gibbons provided evidence in relation to what time and cost would be involved in transcribing the tapes. 9 Mr Lee is particularly interested in a tape for the period of time 7.25pm to 7.59pm on 6 January 1994. Of the 19 tapes before the Tribunal, no such tape appeared to be marked as such. Mr Lee acknowledged that the tapes contained the voices of persons other than him. Applicable legislation 10 Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified. In determining an application for review the Tribunal is to decide what the correct and preferable decision is having regard to the material before it and for that purpose may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. The Tribunal is to have regard to any relevant Government policy in force at the time the reviewable decision was made and may have regard to any other policy applied by the administrator in relation to the matter concerned. 11 Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. The legally enforceable right to be given access to documents held by the Government is subject only to such restrictions as are reasonably necessary for the proper administration of the Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. 12 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. 13 Section 25 of the FOI Act provides in part: "25 Refusal of access (1) An agency may refuse access to a document: (a) if it is an exempt document, or (a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions". 14 Clause 6(1) of Schedule 1 of the FOI Act provides as follows: "6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased)." 15 Section 22 of the Listening Devices Act 1984 provides for the destruction of irrelevant records made by the use of a listening device. It states: "22 Destruction of irrelevant records made by the use of a listening device (1) This section applies to the use of a listening device: (a) pursuant to a warrant granted under Part 4, or (b) in the circumstances referred to in section 5 (2) (c). (2) A person shall, as soon as practicable after it has been made, cause to be destroyed so much of any record, whether in writing or otherwise, of any evidence or information obtained by the person by the use of a listening device to which this section applies as does not relate directly or indirectly to the commission of a prescribed offence within the meaning of Part 4." The Commissioner's case 16 The Commissioner's case is that the agency does not hold any documents that fall within the description of the documents that Mr Lee has sought. The Commissioner says that the extensive inquiries undertaken clearly indicate that the 19 tapes that have been found are the only material that the agency holds from tapes 38 and 40 recorded during Operation Merlin. These are not "master tapes" and therefore do not fall within the ambit of Mr Lee's application. 17 Affidavit evidence provided by Sergeant Maddox sets out the nature of the inquiries undertaken as part of the processing of the application. Sergeant Pisani submits that the Tribunal should find that the search undertaken was adequate in the circumstances. He referred to the view expressed by the Tribunal's President in Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 where he stated at paragraph [30]: "30 What constitutes a 'sufficient search' will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant." 18 Sergeant Pisani further submitted that Mr Lee should not be granted access to the 19 tapes that were revealed by the search. He contends that in order to ascertain whether any relevant exemption may apply to those tapes, they must firstly be transcribed. The process and possible cost of this exercise is outlined in the affidavit of Ms Sandra Gibbons, the Supervisor of the NSW Police Telecommunications Interception Branch Transcription Unit. Ms Gibbons indicates that the cost of transcribing the tapes would depend on the length of the tapes but that her estimate is that it would be between $33,405.80 and $46,983.20. This estimate is based on the seven-hour daily rate of $377.30 quoted by Interpreters Connection (Australia) Pty Ltd. 19 Sergeant Pisani argued that this would amount to a substantial and unreasonable diversion of resources and therefore access should be refused pursuant to section 25 of the FOI Act. 20 Sergeant Pisani further argued that in the event that the tapes were transcribed, they appear to contain the personal affairs of persons other than the Applicant. They could therefore be exempt documents pursuant to clause 6(1) of Schedule 1 of the FOI Act. Sergeant Pisani referred to the views expressed by the Commonwealth Administrative Appeals Tribunal in Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 in relation to the approach to be taken in determining whether a disclosure would be unreasonable. The Tribunal stated: "51 [I]t is not every document, the disclosure of which would involve the disclosure of information relating to the personal affairs of a person, that is exempt from disclosure under the Act. Exemption is only attracted if the disclosure would involve the unreasonable disclosure of information relating to those affairs. Whether a disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties. 52 However, consistently with the stated object of the Act (see s 3), it is also necessary in my view to take into consideration the public interest recognized by the Act in the disclosure of information in documentary form in the possession of an agency and to weigh that interest in the balance against the public interest in protecting the personal privacy of a third party whose personal affairs may be unreasonably disclosed by granting access to the document." 21 Sergeant Pisani contends that the circumstances of this case support the argument that disclosure would be unreasonable. Relevant circumstances include the fact that Detective Sergeant Khalifeh is no longer a serving NSW Police Officer. Without his involvement, it would not be reasonable to expect that the voices on the tapes could to be identified given their age and language. Further, Mr Lee's request relates to the master tapes 38 and 40 recorded during Operation Merlin that were admitted into evidence and used at trial. Given that the trial was conducted some eight years ago, in another jurisdiction with some 1400 pages of transcript, it would be difficult to determine whether any of these tapes fall within the scope of that request. Further, Sergeant Pisani contends that the purpose for which the tapes were obtained is a relevant circumstance that supports the argument that disclosure would be unreasonable. 22 The Respondent submits therefore that Mr Lee's application should be dismissed. Mr Lee's case 23 Mr Lee's case is essentially that the tapes he seeks were used in evidence at his trial and should have been retained. The tapes should not have been destroyed given that his right of appeal to the High Court has not been exhausted. He points to evidence provided on behalf of the Commissioner as supporting the view that the tapes have not been destroyed. 24 In particular, Mr Lee refers to the affidavit evidence of Ms Laraine Tate of the Police Headquarters' Corporate Archives, and Ms Vicki Lawless of Blacktown Local Area Command. At paragraphs 4 and 5 of her affidavit, Ms Tate states that the destruction of audiotapes should be authorised and a copy of the authorisation kept in the archive. However, she could not locate any record of the destruction of these tapes. 25 At paragraphs 3 of her affidavit, Ms Lawless stated that if an exhibit is to be disposed of it would be carried out only after authorisation from the OIC of the matter and that a copy of the authorisation would be filed in the relevant exhibit entry. At paragraph 4, she stated that if Detective Sergeant Khalifeh had authorised the disposal of the exhibit, there should be documentation to support that authorisation. With the information available to her she was unable to indicate the whereabouts of the two tapes. 26 Mr Lee submits that the evidence shows that the two tapes have not been destroyed legally but that they have disappeared and no one knows their whereabouts. In his submissions of 10 September 2005 Mr Lee states that he agrees 'that the tapes have disappeared'. He says that the DPP of Queensland has confirmed that the two tapes were returned to Detective Sergeant Khalifeh on 13 October 2004 and he asserts that Detective Sergeant Khalifeh is solely responsible for the missing tapes. 27 He contends that the No. 38 tape had been cut into 13 separate tapes but that these tapes were not used at the trial. Similarly, the No. 40 tape had been cut into 6 separate tapes but none of those tapes were used at the trial. The tapes that were used in the trial have disappeared. Mr Lee submits that this could not be accidental or by chance, but rather was a deliberate act on the part of Detective Sergeant Khalifeh. 28 Mr Lee disputes the agency's assertions in relation to the need to translate the 13 separate tapes that were part of the No. 38 tape and the 6 separate tapes that are part of the No.40 tape, and the cost of doing so. He says that the tapes were used during the committal hearing and translated into English, and that the transcripts were eventually passed on to his lawyer. However, he did not have an opportunity to verify the authenticity of the tapes. He says that he currently has all those English translation transcripts. Therefore, he says, the agency's assertions are contradictory and unsustainable. Findings 29 If the circumstances of this matter are as Mr Lee contends, they provide an example of how an individual's right to access documents can be thwarted. Nevertheless, I am satisfied on the evidence provided that the agency does not hold the master tapes that Mr Lee has sought. I note that I agree with Sergeant Pisani's argument that the agency's search is sufficient in the circumstances. 30 I am unable to offer any opinion on the whereabouts of the two tapes or whether or not they have been destroyed other than to say that if the tapes were destroyed it was not done in accordance with proper procedure. 31 Having formed that view, it follows that I am satisfied that there are no documents held by the agency that falls within the scope of Mr Lee's application. 32 It is also my view that the 19 tapes that have been located do not fall within the scope of the application as they were not used at Mr Lee's trial. 33 While I am satisfied that the 19 tapes that have been located do not fall within the scope of the application, I note that I also agree with Sergeant Pisani's submission that the release of those tapes would require an unreasonable diversion of the agency's resources. Whether this is the case is a question of fact to be determined in the circumstances of the case. In my opinion, the release of the tapes would require an unreasonable diversion of the agency's resources even if Mr Lee were able to provide the agency with a complete transcript of the tapes. This is because it would be necessary for the agency to have an appropriately qualified translator listen to the tapes and verify the authenticity of the transcript. The agency would then need to determine whether the tapes are exempt from release. 34 I am satisfied that the tapes are recordings of conversations of various individuals other than Mr Lee. It would be necessary to determine whether any or all of the tapes is an exempt document pursuant to Clause 6(1) of Schedule 1 of the FOI Act. It would also be necessary to determine whether the tapes are exempt from release for any other reason. In my view, making this determination would require an unreasonable diversion of the agency's resources. 35 In my view, Mr Lee's application must fail. Accordingly, the decision under review should be affirmed. Order The decision under review is affirmed.