CITATION: Robinson v Commissioner of Police, New South Wales Police Service [2003] NSWADT 245 DIVISION: General Division APPLICANT PARTIES: Arthur Robinson RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 033117 HEARING DATES: 15/10/03 SUBMISSIONS CLOSED: 10/15/2003 DATE OF DECISION: 11/14/2003 BEFORE: Higgins S - Judicial Member APPLICATION: access to documents - adequacy of search MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT D Paterson, solicitor ORDERS: Date of order: 15 October 2003; The Tribunal orders that the Applicant's application be dismissed purusant to s.73(5)(h) of the Administrative Decisions Tribunal Act, 1997 1 On 8 May 2003, Mr Robinson filed an application seeking review of a decision of the Commissioner of Police, NSW Police Service ("the Commissioner") concerning Mr Robinson's request for specified documents pursuant to the Freedom of Information Act, 1989. That request had been made on 19 August 2002 on a pro forma FOI request form of the NSW Police Service. On 15 October 2003 at a directions hearing, following a submission by Ms Paterson, on behalf of the Commissioner, the Tribunal ordered that Mr Robinson's application for review should be dismissed pursuant to s.73(5)(h) of the Administrative Decisions Tribunal Act 1997. The application was dismissed on the basis that the application lacked any substance. Mr Robinson has sought reasons for the Tribunal's decision and these are its reasons. BACKGROUND 2 As mentioned above, Mr Robinson made his request for access to documents pursuant to the Freedom of Information Act, 1989 on 19 August 2002. Mr Robinson has difficulty with reading and writing, which made his request, which was handwritten by him on a pro forma FOI request form, difficult to read and interpret. However, the following documents appeared to be those for which he sought access: (a) documents relating to an incident in June 2001; (b) documents that the police had on him; (c) documents relating to an incident in April 1996, in particular the complaint conciliation form 3 On 11 September 2002, the Commissioner made a determination in respect of Mr Robinson's request. The written determination was sent to Mr Robinson on that date. In this notice the Commissioner stated the following: "The application does not sufficiently describe the documents sought by the applicant, however it has been assumed for the purpose of this determination that the applicant seeks all documents held by this agency relating to himself. … Enquiries were directed to the Local Area Commander Sutherland. Additional enquiries were also conducted on the services computerised operational policing system. In reply, this office has been supplied with all documents that fall within the ambit of the request". 4 As a result of the determination the Commissioner decided to release, without deletion, the following documents to Mr Robinson: (a) COPS Report E34455793, relating to an incident that occurred on 30 March 2001. (b) COPS Report E3860136, concerning an incident on 27 October 1997. (c) COPS Report E13150887, concerning an incident dated between 30 March 2001 to 9 May 2001. (d) COPS Report E13616689, concerning an incident on 24 June 2001. (e) Complaint Conciliation Form dated 19 March 1996. 5 On 23 September 2002, Mr Robinson requested an internal review of the Commissioner's determination. Mr Robinson again completed a pro forma form for such a review. As with the initial request, this request was also difficult to read and interpret. However, he made reference to the following documents: (a) documents on why the police (Inspector Mc Mahon) came to his door on 5 April 2000, in particular what the police said to him and what he said to the police (b) documents relating the 4 April 1996 complaint 6 On 27 September 2002, a review of the Commissioner's determination had been completed and written notice of that review was sent to Mr Robinson. In that notice of review the Commissioner states: "I am satisfied that all available material within the ambit of your application has been sourced and released to you in full. In lieu of any issues raised by you to the contrary, I have no other alternative open to me other than to affirm the earlier decision…" 7 Mr Robinson then submitted further correspondence seeking access to documents, which he stated he had not received and which came within the terms of his FOI application. At the same time, Mr Robinson had approached the Ombudsman's office seeking his assistance in obtaining access to the documents he had requested. On 18 November 2002, the Commissioner sent a supplementary review of his determination notice to Mr Robinson in which he stated that following communications from the Ombudsman's office, an additional document had been identified and located. The document was described as being a document maintained by the Protective Security Group of the NSW Police and identified as entry I.15126986. In respect of that document, the Commissioner determined that the document came within the exemption as set out in Clause 4(3)(b) of Schedule 1 of the Freedom of Information Act, 1989 and refused access to the document on that basis. 8 As mentioned above, Mr Robinson lodged a complaint with the NSW Ombudsman in respect of his FOI request to the Commissioner, in particular the adequacy of search for documents that fell within his FOI request. The Ombudsman commenced preliminary investigations in respect of that complaint on 11 March 2003. 9 As mentioned above, on 8 May 2003, Mr Robinson filed this application with the Tribunal. The matter first came before the Tribunal on 3 June 2003 at a directions hearing. Mr Robinson attended that hearing and Mr Capper, appeared on behalf of the Commissioner. At that time, the Ombudsman had not completed his investigation and Mr Robinson was encouraged to make contact with the Ombudsman and ascertain when the matter would be finalised. The Commissioner's position was that he had identified all the documents that came within Mr Robinson's request and that he had been given copies of every document except one over which an exemption was claimed. Mr Robinson alleged that there must be more documents, in particular documents that set out the basis on which he was stopped in April 1996. 10 On 29 July 2003, the matter came before the Deputy President at a planning meeting. There was no attendance by Mr Robinson. Mr Capper, who appeared on behalf of the Commissioner, advised the Tribunal that the Ombudsman's investigations remained incomplete. The matter next came before the Tribunal on 22 September 2003 for a further planning meeting. Mr Robinson attended this meeting as did Ms Paterson, on behalf of the Commissioner. By consent the matter was adjourned for directions/preliminary conference on 15 October 2003. The Commissioner was also ordered to file and serve, within 7 days, Mr Robinson's original FOI application, the original determination of the Commissioner, the application for internal review and the internal review determination. The Tribunal notes that these documents were filed in the Tribunal on 26 September 2003. Included with these documents were documents that had been released by the Commissioner to Mr Robinson following a FOI request he had made 1996 and 1997. The Ombudsman had also investigated this earlier request. 11 On 15 October 2003, when the matter came before the Tribunal for directions/preliminary conference, Mr Robinson continued to assert that there had not been adequate search by the Commissioner, in particular there had not been an adequate search in respect of documents relating to the incident in April 1996. It was Mr Robinson's contention that these documents must exist and that he has not been provided with a copy of these. He also contended that there must be documents, which state what "Inspector McMahon" said to him. Ms Patterson, on behalf of the Commissioner, advised the Tribunal that the Commissioner had no documents that came within the description provided by Mr Robinson. She also advised the Tribunal that the Ombudsman had completed his investigations and was satisfied that there had been adequate search and that there were no further documents relating to Mr Robinson's request, including the incident that occurred in April 1996 and conversations with "Inspector McMahon". On this basis, Ms Patterson, submitted that the Tribunal should dismiss Mr Robinson's application. 12 The Tribunal explained to Mr Robinson that there appeared to be two issues arising from his application for review of the Commissioner's decision. The first issue was the question of the adequacy of search for documents that Mr Robinson believed existed and had not been produced. The second issue was whether the exemption claimed in respect of the document maintained by the Protective Security Group of the NSW Police (I.15126986 – see para 8 above) was correct. In respect of the latter issue, Mr Robinson stated that he did not challenge the exemption that had been claimed and that he did not seek access to that document. He did, however, continue to contend that there must be further documents in respect of the April 1996 incident and the conversations with "Inspector McMahon". Ms Patterson provided the Tribunal with a copy of the exempt document, which was dated 9/10/2001. Mr Robinson was informed of the date of the document and that the Tribunal was satisfied that it was not a document relating to the April 1996 incident or conversations with 'Inspector McMahon'. In light of this and the fact that the Ombudsman had fully investigated his complaint and was satisfied with the Commissioner's response and his adequacy of search, the Tribunal informed Mr Robinson of its view that his application was misconceived and lacked substance and that a hearing would be futile. LEGISLATION 13 Section 5(2)(b) of the Freedom of Information Act 1989 ('FOI Act') confers on each member of the public: "…a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government." 14 The government agency on whom a request for access to documents has been made is required to consider the application and is then required to give access to the documents being sought unless it can establish that the document is an exempt document under one or more of the provisions contained in Schedule 1 of the FOI Act. The onus of proof lies on the agency to establish that the exemption applies and the denial of access is justified (see s.61 of the FOI Act). 15 Section 52 of the FOI Act provides that the conduct of any person or body in relation to a determination made by an agency under the Act may be the subject of complaint, and may be investigated by the Ombudsman. 16 Sub section 53(1) of the FOI Act provides that a person who is aggrieved by a determination of an agency in respect of his/her FOI request may apply to the Tribunal for review of that determination. However, paragraph 53(2)(c) provides that a review application may not be made while any relevant complaint is being investigated by the Ombudsman. 17 Sub section 53(3) of the FOI Act sets out what is meant by the term 'a person aggrieved by a determination' in that section. Included is a determination to refuse an FOI applicant access to a document that has been requested. 18 Section 73 of the Administrative Decisions Tribunal Act 1997 sets out the procedure of the Tribunal. Sub section 73(1) provides that the Tribunal may, subject to the Act and the rules of the Tribunal, determine its own procedure. Paragraph 73(5)(h) of this Act provides that: 'the Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.' REASONS AND DECISION 19 The Tribunal had jurisdiction to hear the application by virtue of section 53(3)(a) of the FOI Act and section 38 of the Administrative Decisions Tribunal Act 1997 following the completion of the investigations of Mr Robinson's complaint. 20 As mentioned above, the only matter with which Mr Robinson had an issue was the alleged failure of the Commissioner to produce documents, in his possession, that related to the April 1996 incident and documents relating to conversations with 'Inspector McMahon'. This matter was fully investigated by the Ombudsman and Mr Robinson was unable to point to any evidence that indicated that the Commissioner had failed to adequately search for those documents or that he was withholding information about the existence of such documents. 21 The Tribunal also notes from material filed by Mr Robinson in support of his application for review of the Commissioner's decision, that on 5 April 2000, Acting Inspector McMahon personally met with Mr Robinson in relation to concerns that he had about being under police surveillance. Following that meeting, commander F T Ryan wrote to Mr Robinson on 8 May 2000 stating that it was his understanding that Mr Robinson was satisfied with Acting Inspector McMahon's explanation. As mentioned above, in his internal review application, Mr Robinson requested documents relating to why the police came to his door on that day and documents that contained details of what was said to him and what he said on that occasion. The Commissioner responded to that request by stating that he held no further documents. Mr Capper and Ms Paterson confirmed this advice on behalf of the Commissioner. 22 Ms Paterson advised the Tribunal that the Ombudsman, in the course of his investigations, was given access to all the relevant files held by the Commissioner that related to Mr Robinson. In light of this and the Ombudsman's findings, which were not disputed by Mr Robinson, the Tribunal is of the opinion that there is no substance to Mr Robinson's application for review. That is, a hearing of the matter would be futile as Mr Robinson does not challenge the exemption claimed by the Commissioner in respect of the document dated 9/10/2001 and there is no evidence to support Mr Robinson's contention that the Commissioner holds further documents relating to the April 1996 or April 2000 incidents. 23 For the reasons set out above, the Tribunal orders that the Applicant's application be dismissed pursuant to s.73(5)(h) of the Administrative Decisions Tribunal Act, 1997 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.