Set aside by Appeal : Set aside in part by Appeal on 13 May 2004 CITATION: Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 DIVISION: General Division APPLICANT PARTIES: Colin Chapman RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 033003 HEARING DATES: 20/05/2003 SUBMISSIONS CLOSED: 11/03/2003 DATE OF DECISION: 02/20/2004 BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: access to documents - adequacy of search - access to documents - document available from agency - access to documents - law enforcement & public safety - 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 - document available from agency - Freedom of Information Act - access to documents - law enforcement & public safety - 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 Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Cth) LEGISLATION CITED : Freedom of Information Act 1982 (Vic) Freedom of Information Act 1989 Freedom of Information Act 1992 (Qld) Privacy & Personal Information Protection Act 1998 Attorney General's Department v Cockcroft (1986) 64 ALR 97 Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 BY v Director General, Attorney General's Department [2002] NSWADT 79 Director General, Department of Education and Training v Mullett & Randazzo (GD) [2002] NSWADTAP 13 Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 N (No. 3) v Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 Re "T" and Queensland Health (1994) 1 QAR 386 Re A and Department of Human Services (unreported, VCAT, Davis PM, 4 November 1998) CASES CITED: Re Anderson and the Australian Federal Police (1986) 11 ALD 355 Re Anti-Fluoridation Association of Victoria and Secretary to Department of Health (1985) 8 ALD 163 Re Chapman and Victoria Parks (unreported, VCAT, Ball SM, 6 December 1999) Re Coulston and Office of Public Prosecutions [2001] VCAT 10 Re Lapidos and Auditor-General of Victoria (1989) 3 VAR 343 Re Lawless and Secretary to Law Department and Ors (1985) 1 VAR 42 Re Mildenhall and Department of Education (unreported, VCAT, Lyons SM, 9 April 1999) Re SRB and SRC (1994) 33 ALD 171 Re Ward and Australian Federal Police (No. V85/414, 20 February 1987, unreported) Re Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 Secretary, Department of Treasury and Finance v Kelly (2001) 18 VAR 427v APPLICANT REPRESENTATION: In person RESPONDENT C Capper, advocate ORDERS: 1. The Agency's decision in respect of paragraph 1(a) and 1(b) of the Applicant's application is affirmed with one exception. The decision that photographs of Richmond railway station are not held by the Agency is set aside and remitted under s 63(3)(d) of the ADT Act for reconsideration.; 2. The Agency's decision in respect of paragraph 1(c) of the Applicant's application, to refuse access to the notebook entries of Inspector Oswald, is set aside. The Agency's decision to grant access to Inspector Oswald's notebook with certain entries deleted is also set aside. In substitution for that decision, a decision is made to grant access to the deleted entries in Inspector Oswald's notebook. ; 3. The Agency's decision in respect of paragraph 1(e) of the Applicant's application to refuse access to the notebook entries of Constable Allan, is set aside under s 63(3)(d) of the ADT Act and remitted for reconsideration. ; 4. The Agency's decision in respect of paragraph 1(g) of the Applicant's application to refuse access to the notebook entries of Officer Hatter is set aside under s 63(3)(d) of the ADT Act and remitted for reconsideration. ; 5. The Agency's decisions in respect of paragraphs 1(d) and 1(f) of the Applicant's application are set aside under s 63(3)(c) of the ADT Act. In substitution for the Agency's decision to refuse access, a decision is made to provide the Applicant with a copy of the requested documents. ; 6. The Agency's decision in respect of paragraph 1(h) of the Applicant's application is affirmed. ; 7. The Agency's decision in respect of paragraph 2 of the Applicant's application is set aside and remitted to the Agency under s 63(3)(d) of the ADT Act for reconsideration. ; 8. The Agency's decision in respect of paragraph 3 of the Applicant's application is set aside under s 63(3)(d) of the ADT Act and remitted for reconsideration. ; 9. The Agency's decision in respect of paragraph 4 of the Applicant's application is set aside and remitted to the Agency under s 63(3)(d) of the ADT Act for reconsideration. ; 10. The Agency's decision in respect of paragraph 5 is set aside under s 63(c) of the ADT Act. In substitution for that decision, the Applicant is to be given access to the documents requested.; 11. The Agency's decisions in respect of paragraphs 6 and 7 of the Applicant's application are affirmed. Background 1 On 31 October 2002, Mr Colin Chapman (the Applicant) applied to the Commissioner, New South Wales Police (the Agency) for certain documents under the Freedom of Information Act 1989 (the FOI Act). The documents all relate to the arrest of the Applicant's son on 30 May 2002 and to a subsequent complaint against police officers. The Applicant's son was charged with 'not give police officer name and address' and 'did smoke on a train or on any part of railway land that is roofed or otherwise covered' as a result of an incident on Richmond railway station. The Applicant's son lodged a complaint alleging police officers from the Hawkesbury Local Area Command had harassed and assaulted him and that he had been unlawfully arrested. 2 The Agency did not respond to the request within the time required, giving rise to a deemed decision to refuse access under s 24(2) of the FOI Act. The Applicant wrote to the Agency on 19 December 2002 seeking an internal review of the deemed decision. No determination was made within the required time and on 6 January 2003, the Applicant filed an application with the Tribunal for a review of the Agency's decision. 3 On 14 January 2003, the Agency belatedly made a determination (the Dakin Determination), which gave Mr Chapman access to some of the requested documents and refused him access to others. 4 At the first planning meeting on 25 February 2003, the Tribunal remitted the matter to the Agency under s 65 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) to make a new decision. A new decision was made on 13 March 2003 (the Holmes determination) but the Applicant decided to proceed with his application in the Tribunal. The matter was set down for hearing on 20 May 2003. 5 On the day of hearing, the Agency gave Mr Chapman access to further documents. The Applicant was unable to indicate at the hearing whether these documents satisfied his request. The Agency's agreement to give the Applicant the documents (relating to paragraph 1 of the Applicant's request) amounted to a new decision. The matter was therefore remitted to the Agency to make a new decision in relation to the Applicant's entire application by 2 June 2003, and for the Applicant to then respond to that decision. 6 The Tribunal received the Applicant's submissions on 2 June 2003, and the Agency's new decision was made on 6 June 2003. The FOI Application 7 The Applicant's application under the FOI Act requested the documents listed below: (1) All records relating to the investigation of complaint CIS/02001082 including, but not limited to the following: (a) All paper, computer, imaging/video/compact disc, audio, photographic records / documents. (b) All reports, correspondence, statements, policy documents. (c) All related notebook / diary entries of Steve Oswald. (d) Notebook / diary of Bradley McClifty for 30/5/02. (e) Notebook / diary of Scott Allan for 30/5/02. (f) Notebook / diary of Warren Cotton for 30/5/02. (g) Notebook / diary of Tracey Hatter for 30/5/02. (h) Notebook / diary of Paul Haines for 30/5/02. (2) All VKG transmission traffic for 30/5/02 9am-5pm associated with the Hawkesbury LAC and Penrith LAC radio channels (covering Richmond, Windsor & Penrith). Failing this, then all VKG transmission traffic for 30/5/02 9am-5pm. (3) All surveillance footage from all cameras for 30/5/02 10am – 3pm at Richmond Railway Station. (4) All surveillance from all cameras for 30/5/02 12pm – 5pm at Penrith Police Station. (5) Hawkesbury LAC duty rosters May 19th to June 8th 2002. (6) All documents that indicate Hawkesbury LAC patrol assignments for 30/5/02. (7) For the Nissan Patrol 4WD vehicles used to convey persons in custody by Hawkesbury LAC, specifications of all interior modifications made to accommodate such persons in custody. The Agency's Original Decision 8 The decision under review is the 6 June 2003 determination which affirmed the Holmes determination with one exception, namely the release of documents sought under paragraph 1(a). Legislative framework 9 Under s 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 this Act." An "agency's document" is defined in s 6 as "a document that is held by the agency." (Emphasis added.) In relation to several of the Applicant's requests, the agency advised that it did not hold those documents. Section 6(2)(e) states that, in the FOI Act: (e) a reference to a document held by an agency includes a reference to a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency 10 Section 25 sets out the circumstances in which an agency may refuse access to a document including where the document is an exempt document. Schedule 1 to the Act sets out a series of exemptions. Under s 61 of the FOI Act, the burden of establishing that the determination is justified lies on the agency. Documents before the Tribunal 11 The Tribunal has before it the documents released by the Agency to the Applicant on 20 May 2003 falling within paragraph 1(a) of the Applicant's request. The Agency also tendered on a confidential basis, the duty roster for Hawkesbury Local Area Command between 19 May 2002 and 8 June 2002. Documents Requested in Paragraph 1 of the FOI Application 12 Photos. The sole remaining issue in dispute in relation to paragraphs 1(a) and (b), is whether the Agency holds photographs of Richmond railway station requested by the Applicant under paragraph 1(a). The Applicant claims that photographs were taken of Richmond railway station for the purpose of investigating his son's complaint. He is unsure who took the photographs, but states that police officers McClinty, Allan, McWhirter and Oswald know of their existence and location. 13 At the hearing, the Agency's legal representative stated that Inspector Oswald had denied the existence of such photos. The legal representative for the Agency said that further enquiries would be made but the Tribunal has not been informed as to whether such enquiries were made or their outcome. 14 Tribunal's decision. A determination by an agency not to give a person access to a document because the agency does not hold the documents is a reviewable decision. (Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52). There are two issues. The first is whether there are reasonable grounds to believe that the requested documents exist or should exist and are, or should be, held by the agency. If the first question is answered in the affirmative, the next question is whether the agency has taken all reasonable steps to find the documents and is satisfied that they are in the agency's possession but cannot be found or that they do not exist. The adequacy of efforts made by an agency to locate documents the subject of an FOI access application are to be judged by having regard to what was reasonable in the circumstances: Re Anti-Fluoridation Association of Victoria and Secretary to Department of Health (1985) 8 ALD 163. 15 The Tribunal noted in Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 that in determining whether an agency holds a document, evidence of searches carried out to locate the document will be relevant. The Tribunal observed at [19]: All the Tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches or the reference of the cases to the Ombudsman. 16 In Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213, the Tribunal observed: Sufficiency of search challenges are difficult ones for applicants to establish. The agency will ordinarily put on evidence from relevant personnel. 17 Apart from evidence from the bar table that Inspector Oswald had denied the existence of any photos, there was no evidence of any efforts the Agency had made to locate those documents. The Applicant has provided the names of a further three police officers who may know whether the documents exist and if so, where they are located. On the basis of all the evidence there are reasonable grounds to believe that the requested documents exist or should exist. The Agency has not taken all reasonable steps to find the documents. Consequently the decision of the Agency to refuse access to the photos on the basis that they are not "held" by the Agency is set aside. The decision is remitted to the Agency under s 63(3)(d) of the ADT Act for reconsideration. The remainder of the Agency's determination in relation to paragraphs 1(a) and 1(b) is affirmed. 18 Notebook and Diary entries. Paragraphs 1(c) to 1(h) of the Applicant's FOI application relate to entries in notebooks and diaries belonging to individual police officers. 19 Inspector Oswald's notebook. In the Notice of Determination dated 14 January 2003, the Agency informed the Applicant that the documents requested in 1(c), being all related diary entries in the notebook of Inspector Oswald, do not exist. On the day of the hearing, the Agency provided the Applicant with a photocopy of extracts from the notebook of Inspector Oswald with deletions. (The final written submissions from the Agency dated 20 November 2003 which states that "no records were held falling within the ambit of the application" in respect of Inspector Oswald's notebook is clearly incorrect.) The Applicant seeks access to the deleted portions of Inspector Oswald's notebook entries. Neither the Tribunal nor the Applicant has been informed of the basis for the deletions in the notebook entry, and the Tribunal has not been provided with a copy of the notebook entry without deletions. 20 Tribunal's decision re Inspector Oswald's notebook. The determination that the Agency cannot provide access to the notebook entries for Inspector Oswald because they are not held by the Agency is set aside. In addition, the Agency has not discharged its onus of satisfying the Tribunal that the deleted portions are exempt under the FOI Act as it has provided no evidence or submissions in support of that decision. Consequently, the Agency's second decision in respect of paragraph 1(c) is also set aside and in accordance with the Tribunal's power under s 63(3)(c) of the ADT Act, a decision is made in substitution for that decision to grant access to the deleted entries in Inspector Oswald's notebook. 21 Constable Allan's notebook. The Agency's decision in relation to paragraph 1(e) was that it did not hold any documents that met this description because Constable Scott Allan made no notebook entries on 30 May 2002. The Applicant says he has received part of the requested notebook entry. 22 Tribunal's decision re Constable Allan's notebook. I accept that there are reasonable grounds to believe that the requested documents exist or should exist and the Agency has failed to take all reasonable steps to find the documents. No evidence has been put forward indicating the steps taken to locate Constable Allan's notebook entries for 30/5/02. The decision that access is refused because the Agency does not hold the notebook entries is set aside under s 63(3)(d) of the ADT Act and remitted for reconsideration. 23 Officer Hatter's notebook. The Agency's decision was that it does not hold such documents because Tracey Hatter made no notebook entries on 30 May 2002. 24 Tribunal's decision re Officer Hatter's notebook. The Agency has not provided any evidence of the steps taken to locate Officer Hatter's notebook or diary entries for 30 May 2002. The Agency should have either produced a copy of the notebook or a statement from Officer Hatter to demonstrate that no entries were made on 30 May 2002. The decision that access is refused because the Agency does not hold the notebook entry is set aside under s 63(3)(d) of the ADT Act and remitted for reconsideration. 25 McClifty and Cotton's notebooks. The Agency's decision in respect of Paragraphs 1(d) and 1(f) of the Applicant's application was that the notebooks of Constable McClifty and Acting Inspector Cotten were available for inspection by contacting those police officers at Hawkesbury Local Area Command. The Agency was apparently refusing access in accordance with s 25(1)(b1), on the basis that the document is available for inspection at the Agency, free of charge, in accordance with that agency's policies and practices. The Agency has provided no reference to or evidence of the policy or practice that would permit the Applicant to have access to police notebooks. 26 Tribunal's decision re McClifty and Cotton's notebooks. Section 25(1)(b1) provides that an agency may refuse access to a document: If it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency's policies or practices. 27 This provision applies to documents that are available to members of the public free of charge under a general policy of public access. I am not satisfied that it is the normal policy or practice of the Agency to provide access to police notebooks to members of the public. Under s 27(1) of the FOI Act, access to a document can be given to a person by giving the person "a reasonable opportunity to inspect the document" or "by giving the person a copy of the document." Telling a person that they can contact another person to request access to a document is not giving them a "reasonable opportunity to inspect the document." Accordingly, under s 63(3)(c) of the ADT Act the decisions in respect of paragraphs 1(d) and 1(f) are set aside. In substitution for the Agency's decision to refuse access, a decision is made to provide the Applicant a copy of the documents requested. 28 Inspector Haines' notebook. The document requested in paragraph 1(h), the notebook of Inspector Haines, was released to the Applicant in full in the Dakin Determination. 29 Tribunal's decision re Haines' notebook. As the Agency has granted access to documents in respect of paragraph 1(h), the Agency's decision in relation to that document is affirmed. Documents Requested in Paragraph 2. 30 The Applicant requested: All VKG transmission traffic for 30/5/02 9am-5pm associated with the Hawkesbury LAC and Penrith LAC (covering Richmond, Windsor and Penrith). Failing this, then all VKG transmission traffic for 30/5/02 9am – 5pm. 31 At the hearing the Agency's legal representative explained that "VKG" refers to the police radio channel which broadcasts communications between police officers and police stations. Any arrests made by police officers are notified to the station via a VKG transmission. 32 The Agency conducted a search between 11.50am and 1.00pm on 30 May 2002 by reference to a log of transmissions on that day. The Agency said that a transmission at 12:27 pm on 30 May 2002 relating to the arrest of the Applicant's son has been provided to the Applicant. 33 The parties seemed to agree that this transmission was a request by the arresting officers for a vehicle to convey the Applicant's son to the police station. The Agency contends that there is no reason to believe that any other transmissions were made on 30 May 2002 pertaining to the Applicant's son. Although specific provisions of the FOI Act are not set out in the internal review decision, the Agency appears to be relying on a number of different grounds to justify its decision to refuse access to the VKG log for the entire period requested. 34 At the hearing, the Applicant maintained his request for all transmissions in the designated time period either for the area nominated or generally and did not limit his request to transmissions concerning his son. The reason given by the Applicant for requesting all transmissions is so that he can compare the conduct of police officers in relation to his son with the conduct of police officers during the remainder of the day. 35 Is the transmission a document? The first ground for refusing access to the log of transmissions was raised in final written submissions filed on 20 November 2003. This submission was that the VKG log was not a 'document' as defined in s 6 of the FOI Act. While it would normally be a breach of procedural fairness for the Tribunal to deal with an issue that has not been raised at or prior to the hearing (see Re Waterford and Department of Treasury (No 2) (1984) 5 ALD 588) when the issue goes to the Tribunal's jurisdiction, I must address it. 36 Tribunal's decision on meaning of "document". A document is defined in s 6 as including: (a) any paper or other material on which there is writing or in or on which there are marks, symbols or perforations having a meaning, whether or not that meaning is ascertainable only be persons qualified to interpret them, and (b) any disc, tape or other article from which sounds, images or messages are capable of being reproduced. 37 As indicated by the Agency, a VKG log is a recording of transmissions on a police radio channel between police officers and police stations. Such transmissions are an '.. article .. from which sounds.. are capable of being reproduced' as defined in s 6(b). Consequently the transmissions are documents within the meaning of the FOI Act. 38 Substantial and unreasonable diversion of resources. Alternatively the Agency submitted that it was justified in refusing access to it on the basis that the work involved in dealing with the application for access to the document would substantially and unreasonably divert the agency's resources away from their use in the exercise of its functions. Section 25(1)(a1) states that: 25. Refusal of access (1) An agency may refuse access to a document: (a)… (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, or … (4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate): (a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and (b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy. (5) Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions. 39 The Agency submitted that it would take police officers 9 hours to copy the radio transmissions for the 8 hour period requested. Further time, described as 'substantial', would then be required to determine whether the material is exempt under the FOI Act. The Agency also submitted that the VKG log was likely to contain personal affairs, such as the names of individuals. The Agency would be required to contact each person under the consultation provisions of the FOI Act. The Agency also submitted that it would not be practical for the police to discharge its obligation to consult all affected persons before releasing the information to the Applicant. 40 Tribunal's decision on diversion of resources. Section 25(1)(a1) must be read in conjunction with s 25(5). Section 25(5) makes it a pre-condition to relying on s 25(1)(a1) that the agency has endeavoured to assist an applicant to amend the application. The equivalent Victorian provision, set out in s 25A(1) of the Freedom of Information Act 1982 (Vic) states: 25A. Requests may be refused in certain cases (1) The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request - (a) in the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations; or (b) in the case of a Minister-would substantially and unreasonably interfere with the performance of the Minister's functions. 41 The purpose of the Victorian provision was discussed in Re Mildenhall and Department of Education (unreported, VCAT, Lyons SM, 9 April 1999). There the Victoria Civil and Administrative Tribunal (VCAT) noted that s 25A of the Freedom of Information Act 1982 (Vic) was "Parliament's response to the issue of voluminous requests" and indicated that: … section 25A seeks to balance competing interests. There is a public interest in an agency not being diverted from its core work through needing to process a very broad-ranging request for documents. On the other hand, the agency can only refuse to process such a request if it has sought to consult with the applicant so as to confine the request to manageable dimensions, and has failed in this endeavour. Section 25A puts pressure on agencies to identify voluminous requests quickly and to take steps to narrow such requests so that the requests can be processed. Only if these steps fail can an agency rely on s 25A as the basis for refusing to grant access to the documents requested. 42 In this case, the Agency's submissions do not include any reference to s 25(5) and there is no evidence that the Agency tried to assist the Applicant to amend the application. Consequently, the pre-condition to the Agency relying on s 25(1)(a1) has not been fulfilled and the decision, to the extent that it relies on that provision, must be set aside. 43 Even if the Agency had endeavoured to assist the Applicant to amend the application, and had been unsuccessful, it would still be necessary for the Tribunal to be satisfied that the processing of the application would lead to a substantial and unreasonable diversion of resources. There is scant case law on the meaning of s 25(1)(a1) of the FOI Act. However in Secretary, Department of Treasury and Finance v Kelly (2001) 18 VAR 427, Ormiston JA noted at [6] that the equivalent provision in Victoria 'should only be applied to a clear case of substantial and unreasonable diversion of a department or other agency'. 44 Circumstances in which the VCAT has held that a refusal under s 25A(1) is justified include: a request for 22,000 documents which would require the services of the equivalent of 1.75 experienced FOI officers a period of 15-16 months to complete (Re A and Department of Human Services (unreported, VCAT, Davis PM, 4 November 1998)); a request for an estimated 6,700 pages of documents that would take the only officer available between 15 and 30 weeks to process (Re Chapman and Victoria Parks (unreported, VCAT, Ball SM, 6 December 1999)); and a request that would require a manual search of at least 16,000 boxes that would take years for a team of people to carry out (Re Coulston and Office of Public Prosecutions [2001] VCAT 10). 45 Section 24(1) of the Freedom of Information Act 1982 (Cth) is in identical terms to s 25(1) of the Victorian Act. Considering this provision in Re SRB and SRC (1994) 33 ALD 171, the Administrative Appeals Tribunal affirmed a decision by an agency to refuse access on the basis that it would substantially and unreasonably divert the resources of the agency away from its other operations. The Agency estimated that the application would require scheduling of 600 documents containing 22,500 pages. In addition to consulting with third parties, it was estimated that this would take one person approximately two years to complete. 46 There are a number of relevant considerations when determining whether an Agency has correctly refused access under s 25(1)(a1): - the number of documents requested, estimated or known; - the time required to locate, identify and schedule documents; and - the time to engage in consultation with third parties and determine whether or not to grant access. 47 In the present case the Agency submits that the processing would take a minimum of nine hours. In all of the cases cited, there is a request for numerous documents. This is a significantly less period of time than the estimates in the cases cited above. In the present application only one document is subject to the unreasonable diversion claim, although this document once transcribed will be lengthy. The authorities have considered the time required and the difficulty in locating the document. The fact that the Agency has previously located the VKG log suggests that there would not be any difficulty in locating the document. 48 Given the relatively short time it would take to process the Applicant's request (even considering the possibility of having to consult with third parties) it is not a substantial or unreasonable diversion of the Agency resources to process the Applicant's request for the VKG log between 9am and 5pm on 30 May 2002 and to then determine whether access should be granted. The Agency's decision to refuse access under s 25(1)(a1) is set aside and remitted to the Agency under s 63(3)(d) of the ADT Act for reconsideration. 49 Personal affairs exemption. The third ground for exemption is that disclosure of the VKG transmission is likely to unreasonably disclosure information concerning the personal affairs of individuals identified in the transmission. (Clause 6 of Schedule 1 of the FOI Act.) The Applicant submitted that he owns a radio transmitter ('scanner') which picks up VKG transmissions. He argues that he could have listened to the transmission on the day in question, and he just wants a back recording. (Further, he expressed his willingness to narrow the time period to 11am-3pm if necessary.) The Agency conceded that the police could not control radio transmissions and insulate them from scanners. 50 Tribunal's decision on personal affairs exemption. In its submissions the Agency referred to the need to consult with individuals whose personal affairs may unreasonably be disclosed. The Agency may wish to consider its power under s 25(4) to grant access to the VKG log with deletions to exempt matter after consultation with the Applicant. It is not possible to assess the Agency's submission in relation to the personal affairs exemption without inspecting the document. 51 Publicly available publication. The Applicant submitted that the transcript of the VKG log is a publicly available publication as defined in s 4 of the Privacy and Personal Information Protection Act 1998 (PIPP Act) and should therefore be disclosed. As the Agency's decision has been remitted it is not strictly necessary to consider the Applicant's submission however, the definition of a publicly available publication in the PPIP Act has no bearing on whether that document is exempt under the FOI Act. In Director General, Department of Education and Training v Mullett & Randazzo (GD) [2002] NSWADTAP 13 the Appeal Panel indicated at [54] that it did not regard the definition of 'personal information' found in the PIPP Act as bearing on the interpretation of the personal affairs exemption in the FOI Act. Documents requested in Paragraph 3. 52 The Applicant requested all surveillance footage from all cameras for 30 May 2002 from 10am until 3pm at Richmond railway station. Both parties agreed that this footage was taken from City Rail security cameras and that NSW Police had asked City Rail for the footage. 53 The Agency's legal representative stated that City Rail provides this footage in CD-Rom form. The Agency also stated that a copy of this footage on CD-Rom, the only footage of the Applicant's son, has been given to the Applicant. The Agency revealed that it obtained the footage from City Rail for criminal proceedings. Under s 66 of the Justices Act 1902, NSW Police has a duty to serve copies of video footage to be used in criminal prosecutions on the defendant. It submitted that all material held by NSW Police has been released to the Applicant and that the Applicant's request has been satisfied. 54 The Agency formally refused access under s 25(1)(b1) on the basis that the document was available from, or available for inspection at, the Agency free of charge in accordance with that Agency's policies and practices. The Agency stated that the Applicant had the option of viewing the footage at the police station. 55 The Applicant agreed that a CD-Rom containing some footage had been given to his son, but said that it is incomplete. In particular, the Applicant stated that the footage he received was of 4 minutes duration, comprising two 2 minute recordings of the same time period from different angles, and that he had requested footage for 5 hours. He claimed that the Agency has more footage than they have released and indicated that he would provide further evidence of to support his claim. Further, he stated that after making the FOI request he telephoned a police officer, Gary Shubridge, who informed him that the tapes were in police possession and that he later confirmed this in a telephone conversation with an officer from the State Rail Authority. The Applicant says that he holds contemporaneous records of three separate confirmations (6, 13 and 20 June 2002) by officers of the Agency that all the surveillance footage requested by the Applicant had been taken and secured by the Agency and would not be lost. These records have not been provided to the Tribunal. 56 The Applicant added that the footage is from only two of the several cameras on the platform. The Applicant stated that he requested footage of police officers and other people on the station to observe how the police were treating other people and why, in his submission, they treated his son differently. 57 Document Available from Agency. The Agency refused access in accordance with s 25(1)(b1) of the FOI Act on the basis that the footage could be inspected at the Agency. The Agency has provided no reference to or evidence of the policy or practice that would permit the Applicant to access information of the kind requested under paragraph 3. As indicated earlier, section 25(1)(b1) applies only to those documents that are available to all members of the public free of charge under a general policy of public access. I am not satisfied that it is the normal policy or practice of the Agency to provide such information to members of the public. 58 Adequacy of Search. The Applicant has requested five hours of footage but has only been provided with four minutes. The issue to be determined is whether the Agency's refusal to grant access on the basis that it does not hold the document is justified. 59 There are reasonable grounds to believe that the requested documents exist or should exist. The fact that there is a CD-Rom containing some information, suggests that there is another document elsewhere, with complete information. It is also necessary to decide whether the documents are, or should be, held by the Agency. There is a strong likelihood that the footage sought by the Applicant is held by the State Rail Authority. However, I am not satisfied that the documents are not also held by the Agency. Although I accept the assertion from the Agency, that it only requests information from the State Rail Authority that is necessary, the exact request from the Agency to the State Rail Authority has not been provided to the Tribunal. The second question to be answered in respect of the issue of adequacy of search is whether the Agency has taken all reasonable steps to find the documents and is satisfied that they are in the Agency's possession but cannot be found or that they do not exist. The sufficiency of search standard is simply whether 'reasonable' searches have occurred. 60 The Agency did not provide any evidence as to the nature of the search undertaken for the complete recording. I am not satisfied that an adequate search has been conducted. In making such a finding, account has been taken of the fact that the Applicant alleges that he has information in his possession that may help determine the whereabouts of the footage. 61 The Agency's decision in respect of paragraph 3 is set aside under s 63(3)(d) of the ADT Act and remitted for reconsideration. Documents Requested in Paragraph 4. 62 Agency's decision. In paragraph 4 of his FOI application, the Applicant requested 'all surveillance footage from all cameras for 30/5/02 12pm-4pm at Penrith Police Station'. The Agency's decision was identical to its decision in respect of paragraph 3 – refusing access to the document under s 25(1)(b1) on the basis that Applicant could view the document, if it is existed, at the police station. 63 At the hearing, the representative for the Agency indicated that the Local Area Commander has authority to release such surveillance footage. The Agency's representative indicated that he did not have up to date information on whether the footage exists but said that it may have been destroyed in accordance with NSW Police's archive policy. 64 The Applicant stated that he had written to the Local Area Command requesting that footage from all surveillance tapes for all areas in the police station be taken and secured. He stated that he received a reply from LAC McWhirter on 8 July 2002 to the effect that the tapes had been secured as requested. No tapes have been provided to the Applicant. 65 Tribunal's decision in respect of Paragraph 4. I am not satisfied that the Agency has discharged its onus of establishing that refusal was justified under s 25(1)(b1). The Agency has not demonstrated that the Agency has a policy or practice of allowing members of the public to view surveillance tapes at Penrith Police Station. 66 An adequacy of search issue also arises. I am satisfied that such footage may exist. The Agency did not adduce any evidence of its efforts to search for the footage. The Holmes determination dated 13 March 2003 states that 'I have not received advice as to whether the footage request has ever existed or is still retained by the agency…'. No further information had come to light at the time of hearing on 20 May 2003. 67 I am not satisfied that an adequate search has been undertaken for the footage from Penrith Police Station. The Agency's decision in respect of paragraph 4 is set aside and remitted in accordance with s 63(3)(d) of the ADT Act for reconsideration. Documents Requested in Paragraph 5. 68 The Applicant requested duty rosters for the Hawkesbury Local Area Command for the period 19 May - 8 June 2002. Those rosters set out the names of officers, the duties to which they are assigned and the start and finish time for their shift. The rosters were provided to the Tribunal on a confidential basis. The Agency refused the Applicant access to these documents claiming that they are exempt document under cll 4(1)(e) and (f) in Schedule 1 of the FOI Act. (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: … (e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or (f) to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety, or … . 69 The Agency's submission is that the release of the duty roster for the period requested would adversely affect the ability of the Agency to perform its law enforcement and public safety functions. According to the Agency policing rosters are an established and systematic method to deploy personnel and directly relate to the Agency's law enforcement and public safety functions. The Agency submitted that the duty rosters contain details of policing numbers, the distribution of personnel, commencement and finishing times and details about criminal investigation, traffic, licensing, intelligence, crime management and other specialised duties. 70 The Agency submitted that disclosure of the duty rosters would identify the times that police are on duty and the number of police on duty during those times. Further the rosters will identify changeover times for police. It is the Agency's submission that in both of these circumstances this information could be used to plan the commission of a criminal offence. In particular the Agency contended that: The public release of policing rosters would provide the opportunity for criminal elements to identify optimum times for the commission of offences and enable diversionary tactics to be employed that could lead to operational police being placed some distance away from where the offences are intended to be committed. 71 The Agency submitted that the duty rosters for 19 May and 8 June 2002 are relevant to current law enforcement and public safety practices, given that rostering patterns remain almost identical for each day. The Agency contended that by 'alerting the public to contemporaneous deployment practices, criminal elements may effectively be encouraged to commit crimes in areas at those times suited to their criminal enterprises'. Applicant's Submissions 72 The Applicant submitted that the duty rosters form part of the Agency's operation and personnel management activities not law enforcement functions and should therefore be disclosed. He referred to a decision of the Tribunal in N (No. 3) v Commissioner of Police, New South Wales Police Service [2002] NSWADT 34. 73 The Applicant also submits that the Tribunal should exercise the discretion referred to in Mangoplah Pastoral Co Pty Ltd -v- Great Southern Energy [1999] NSWADT 93 to release the duty rosters. Tribunal's decision in respect of Paragraph 5 74 Schedule 1 to the FOI Act sets out three classes of exempt documents: restricted documents; documents which require consultation and other documents. A document that falls within cl 4 is a restricted document. Restricted documents are in a special category in the scheme of exempt documents set out in the FOI Act as they contain potentially sensitive information. Section 57 which relates to restricted documents, states that: (1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate. (2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of: (a) the public, and (b) the review applicant, and (c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative. (3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it. (4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application. (5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter. (6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings. 75 There was no appearance by the Minister administering the Act (the Premier). 76 I intend to adopt the reasoning in BY v Director General, Attorney General's Department [2002] NSWADT 79 that if there are reasonable grounds for the claim for exemption, the Tribunal's jurisdiction remains unaffected and it may go on to ascertain whether the decision to claim the exemption is the correct and preferable one. 77 Two issues arise in the context of cl 4(1)(e). Is rostering a lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law? If so, could disclosure of the roster reasonably be expected to prejudice the effectiveness of that method or procedure? Is rostering a lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law? 78 The Applicant's submission was that the duty rosters relate to operational and personnel management activities not law enforcement functions. Although he relied on N (No. 3) v Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 that decision does not assist him because it relates to the meaning of "administrative functions" in s 39 of the FOI Act concerning amendments to documents. 79 In a narrow sense, rostering is a method for allocating staff to particular duties but in a broader sense the ultimate aim of rostering police to perform particular duties at particular times is the prevention, detection and investigation of contraventions of the law. In Re Anderson and the Australian Federal Police (1986) 11 ALD 355 at 364 the Administrative Appeals Tribunal observed that [a] document may disclose methods or procedures either by specifically referring to or describing them or by providing information from the nature of which the methods or procedures employed may be capable of being inferred. 80 In this case it was not just the fact that the Agency rosters police officers to perform certain duties that would be disclosed, but also the content of that roster. I am satisfied that rostering police to perform particular duties at particular times is a lawful method or procedures for preventing, detecting, investigating and dealing with any contravention or possible contravention of the law. Could disclosure of the roster reasonably be expected to prejudice the effectiveness of rostering as a method of preventing, detecting, investigating or dealing with any contravention or possible contravention of the law? 81 It has been held that disclosure of methods and procedures adopted by law enforcement agencies which are obvious and well known to the community (e.g. interviewing and taking statements from witnesses to a crime) is not likely to prejudice their effectiveness: see Re Lawless and Secretary to Law Department and Ors (1985) 1 VAR 42 at 50. Courts and Tribunals have routinely accepted that if the methods and procedures are of an ordinary and fundamental kind then this it is unlikely that disclosure of them could be reasonably likely to prejudice their effectiveness: see Re Lapidos and Auditor-General of Victoria (1989) 3 VAR 343; Re Ward and Australian Federal Police (No. V85/414, 20 February 1987, unreported). In Re Anderson Deputy President Hall said (at p.425): Questions of prejudice are, I think, more likely to arise where the disclosure of a document would disclose covert, as opposed to overt or routine methods or procedures. 82 In the present case, it is not the disclosure of rostering as a method or procedure in itself that is in issue, it is the disclosure of the material contained in the roster. The disclosure of the material in the roster must meet the test set out in s 4(1)(e). 83 It is not sufficient to make out the exemption that there be an expectation of prejudice. What is required is for the Agency to demonstrate a reasonable basis for the expectation of prejudice. In Re "T" and Queensland Health (1994) 1 QAR 386, the Queensland Information Commissioner observed: The phrase "could reasonably be expected to" in s.42(1) of the FOI Act bears the same meaning as it does in s.46(1)(b) of the FOI Act, which meaning was explained in Re "B" and Brisbane North Regional Health Authority (1994) 1 QAR 279 at paragraphs 154-161. In particular, I stated at paragraph 160: ... The words call for the decision-maker applying s.46(1)(b) to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural 'expectations') and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. 84 The meaning of the phrase 'could reasonably be expected to' have been considered in a number of cases. The leading case on the meaning of this phrase is Attorney General's Department v Cockcroft (1986) 64 ALR 97, which considered the phrase in the context of the Commonwealth business affairs exemption. The Full Court of the Federal Court held that the words should receive their ordinary meaning and that the agency must demonstrate that the occurrence of prejudice is a reasonable expectation, as distinct from being irrational, absurd or ridiculous: Attorney General's Department v Cockcroft (1986) 64 ALR 97 at 106 per Bowen CJ and Beaumont J. The word "expected" is not to be given too wide a meaning in light of the objectives of the statute: Cockcroft per Shepherd J at 112. The occurrence of the prejudice does not have to be established on the balance of probabilities but there must be something more than a mere possibility that the particular prejudice will occur: Cockcroft per Bowen CJ and Beaumont J at 106. 85 In her book Annotated Freedom of Information Act New South Wales (Law Book Co, 1998), Anne Cossins states that the cl 4(1)(e) exemption 'is directed to the effect of the disclosure of a document rather than the contents or nature of a document itself': at p 261. In making such an observation she referred to the Full Federal Court's observation that the words 'could reasonably be expected' are only directed towards examining whether or not there is a reasonable basis for the effect that the exemption seeks to prevent, not whether or not there is a reasonable basis for the exemption. 86 Whether there is a reasonable expectation of prejudice may depend on the currency of the information. In Re "T" and Queensland Health (1994) 1 QAR 386, the Queensland Information Commissioner observed at [26]: The test of a reasonable expectation of prejudice has to be applied according to an evaluation of the relevant circumstances prevailing at the time when a decision whether or not to claim the exemption is required to be given. There may well be cases where the giving of access to information at a particular stage in the process of using a law enforcement method or procedure will prejudice its effectiveness, but with the passage of time the threat of prejudice is removed. 87 The Agency's case was based solely on submissions about the anticipated effect of disclosing the rosters. No evidence, on affidavit or otherwise, was tendered. Consequently, in accordance with s 57(3) I am not satisfied that there are reasonable grounds for the claim. The rosters were produced to the Tribunal confidentially. Having considered those documents, and the Agency's submissions, I am still not satisfied that there are reasonable grounds for the claim. Even if similar rostering arrangements are currently in use, the Agency was unable to provide a single concrete example of how a potential criminal would be assisted by the information contained in the rosters when planning to commit an offence. The roster simply does not give sufficient information about the whereabouts or number of police officers to assist a potential criminal to plan a crime. 88 Furthermore, in accordance with the reasoning in BY v Director General, Attorney General's Department [2002] NSWADT 79 the Agency has failed to discharge its onus of establishing that the determination is justified. I am not satisfied that the duty rosters are "exempt" documents under cl 4(1)(e). Clause 4(1)(f) 89 The second ground upon which the Agency claims the duty rosters are exempt is cl 4(1)(f) of Schedule 1 of the FOI Act. The Agency submitted that disclosure of the rosters would prejudice the maintenance or enforcement of rostering for protecting pubic safety on the same basis as argued for 4(1)(e), namely, that criminal elements could use the information (which it was submitted remains current) to assist in the commission of offences. 90 Rostering is a lawful method or procedure within the meaning of cl 4(1)(f). In Re Parisi & Australian Federal Police (Qld) (1987) 14 ALD 11 it was held that 'public safety' ought not be construed narrowly. One purpose of rostering is to allocate police officers to perform certain duties. In performing those duties at least some of them are protecting public safety. 91 The next question is whether there is a reasonable expectation that disclosure of the roster would prejudice public safety. Again, the Agency's case was based solely on submissions as to the effect of disclosing the rosters. No evidence, on affidavit or otherwise, was tendered. Consequently, in accordance with s 57(3) I am not satisfied that there are reasonable grounds for the claim. The rosters were produced to the Tribunal confidentially. Having considered those documents, and the Agency's submissions, I am still not satisfied that there are reasonable grounds for the claim. Even if similar rostering arrangements are currently in use, the Agency was unable to provide a single concrete example of how disclosure of the rosters could prejudice the maintenance or enforcement of rostering as a procedure for protecting public safety. 92 Furthermore, in accordance with the reasoning in BY v Director General, Attorney General's Department [2002] NSWADT 79 the Agency has failed to discharge its onus of establishing that the determination is justified. I am not satisfied that the duty rosters are "exempt" documents under cl 4(1)(f). 93 The Agency's decision in relation to paragraph 5 of the Applicant's application is set aside. In substitution for that decision, the Applicant is to be granted access to the documents. 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. Documents requested in paragraph 7. 95 Both parties agreed that the documents requested in paragraph 7 have been released to the Applicant. Consequently the Agency's determination in respect of those documents is affirmed. 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. 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.