Appeal Panel - Internal CITATION: KT v Commissioner of Police, New South Wales Police Force (GD) [2010] NSWADTAP 39 APPELLANT KT PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Force FILE NUMBER: 099054 HEARING DATES: 11 March 2010 SUBMISSIONS CLOSED: 16 February 2010 DATE OF DECISION: 4 June 2010 BEFORE: O'Connor K - DCJ (President); Furness G - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: Freedom of Information – Notice that Documents not held – Effect – Tribunal Procedure – Closed Session – Objection to Member – Procedural Fairness – Appeal Dismissed DECISION UNDER APPEAL: KT v Commissioner of Police, New South Wales Police Force, unreported FILE NUMBER UNDER APPEAL: 093156 DATE OF DECISION UNDER APPEAL: 08/24/2009 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & ors [2008] NSWCA 140 CASES CITED: O'Sullivan v Medical Tribunal of NSW [2009] NSWCA 374 Stead v. State Government Insurance Commission (1986) 161 CLR 141 APPELLANT In person REPRESENTATION: RESPONDENT J Windsor, law clerk ORDERS: Appeal dismissed REASONS FOR DECISION 1 The appellant, KT, applied on 11 April 2009 under the Freedom of Information Act 1989 (the Act) for access to certain documents held by the respondent agency, NSW Police Force. The documents all related to a charge laid by the police at Newtown against another person in connection with an incident involving KT and the other person that occurred on or about 31 July 2008. 2 As a result of the original determination and the determination on internal review, KT received the COPS Event record, photographs, several police statements and police notebook extracts. Some of this material was supplied with deletions of matter considered to be exempt, usually on the basis that disclosure would unreasonably intrude on the personal affairs of a third person. The agency gave formal notices under s 28(1)(b) that it did not hold certain documents, i.e. the accused person's statement, certain witness statements and certain documents which he said he had forwarded to the Newtown Police Station. 3 Section 28(1) provides: (1) An agency shall cause written notice to be given to the applicant: (a) of its determination of his or her application, or (b) if the application relates to a document that is not held by the agency—of the fact that the agency does not hold such a document. 4 KT applied to the Tribunal for review of the agency determination. The Tribunal dismissed his application: ex tempore decision, 24 August 2009. This is an appeal against that decision. 5 First, KT is dissatisfied over not being provided with those documents which the agency claimed it did not hold, i.e. the documents he said he sent to the Newtown Police Station. As to this, there was no dispute that he in fact did send documents to the Newtown Police Station. The agency response is simply that they are no longer in its files at Newtown or anywhere else in the agency. The agency gave the Tribunal and KT statements as to the nature of the search it undertook. Having regard to the Court of Appeal decision in Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & ors [2008] NSWCA 140 at 135 (the Commerce case), the Tribunal ruled that it had no jurisdiction to inquire behind a s 28(1)(b) notice. That case decided the Tribunal's right to review agency decisions was limited to documents the subject matter of the formal determination. An applicant, who is aggrieved over documents not being identified which he or she feels fall within the scope of the request, must take any complaint to the Ombudsman. 6 Secondly, KT expressed concern over not being supplied with the whole of the police notebook records of the investigating officer, Insp Azzopardi. He had received pages 12 to 19. At planning meetings, the agency supplied him with pages 20 and 21. There was a deletion on page 20. The Tribunal held a confidential session. The Tribunal was satisfied that the deletion on page 20 was justified. The transcript of the Tribunal's reasons does not indicate which of the exemptions was seen as applicable. Our understanding from other material is that the privacy exemption, cl 6, was the basis. 7 KT is not a lawyer, and is representing himself. His appeal is made under ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Under the heading questions of law in the notice of appeal, he has seven paragraphs. 8 Two of them (points 5 and 7) concern the Tribunal's decision not to inquire behind the s 28(1)(b) notice. Until 2008, the Tribunal had considered that it could inquire behind an agency's statement that it had undertaken a search for documents and could find none responsive to the request, or a part of the request. The Court of Appeal ruled in the Commerce case that the Tribunal's jurisdiction does not extend to an 'adequacy of search' inquiry, and it is not free to put into issue an agency denial that documents exist. It must follow therefore that the Tribunal's decision was correct. 9 The five remaining paragraphs concern procedural matters. KT complains over the fact that the Tribunal went into confidential session, that the Tribunal required him to leave the hearing room without explaining why, that the agency officer appeared by teleconference rather than being physically present in the hearing room (points 1, 2 and 3); and that he had thought that he was only attending on 24 August 2009 for a planning meeting not the final determination of the matter (point 4). He also said that he had applied unsuccessfully for the disqualification of the member the day before the hearing, and therefore the proceedings were affected by bias (point 6). 10 It is common in FOI cases for the Tribunal to enter into confidential session with the agency (see ADT Act, s 55), sometimes to hear evidence going to the claim for exemption, or to have a discussion in relation to the document for which exemption is claimed. In this case the confidential session was a very short one. When a court or tribunal engages in this practice it is doing so as an exception to the basic rule that all court and tribunal proceedings are held in public (see further, ADT Act, s 75). We have reviewed the transcript, esp p 15: 40-50, and pp 17-18: 35-13. The session was a short one of a few minutes. The Tribunal did report back, in broad terms, to KT on his return as to what had taken place, and there was some further disclosure of information with the agreement of the agency's representative. We do not think, in all the circumstances, there was any lack of procedural fairness. If there was, applying the approach required by Stead v. State Government Insurance Commission (1986) 161 CLR 141, KT suffered no disadvantage in relation to the possible outcome of his case. 11 Usually at final hearings both sides appear physically in the hearing room. The Tribunal does offer parties the facility of participation by telephone. In this instance the Tribunal allowed the agency to appear in that way, via Sgt Sheather. In the view of the Appeal Panel, it is not generally desirable that civilian applicants, especially those that appear without representation, find themselves dealing with the government agency against which they have complained in the disembodied way that a telephone hook-up allows. Nonetheless, the Tribunal has great flexibility in the procedures it can follow (see ADT Act, s 73), and it can, if it wishes, follow the procedure it did in this case. The agency explained at our hearing that the legal unit of the agency responsible for these matters is a small one, is located at Parramatta, and it is helpful to it for it to be able to appear in this way if the case is suited to that. KT was unable to indicate to us how he was practically disadvantaged by what occurred. 12 Our check of the file records suggests that KT is wrong in relation to the purpose of the listing on 24 August 2009. The Registry endorsement on the file uses 'H' for the event scheduled for that date and at 2 pm, i.e. 'Hearing', as distinct from 'PM', the code used for planning meeting. That code appears against the event that occurred on 21 July 2009. The agency informed the Appeal Panel that its records, and the personal records of Sgt Sheather who appeared by telephone that day, show the same. 13 KT's bias objection is linked to other cases brought by him, heard before the same member. He believes that the member did not protect him from insulting behaviour by the practitioner on the other side in previous cases. He also refers in his written submissions to the procedurally unfair way (as he sees it) that the member conducted the hearing in the present case, an issue we have dealt with at para [10]. 14 In our view, there is nothing in the material that would remotely suggest that the decision by the member to reject his application for her disqualification was wrong. There could, we think, be no reasonable apprehension of bias on the part of a fair-minded observer, applying the well-known principles: see O'Sullivan v Medical Tribunal of NSW [2009] NSWCA 374, for a recent restatement of the principles in a tribunal context. Order Appeal dismissed. 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.