Johnston v Commissioner of Police, NSW Police Force [2009] NSWADT 172

CITATION: Johnston v Commissioner of Police, NSW Police Force [2009] NSWADT 172

DIVISION: General Division

APPLICANT Shirley Johnston PARTIES: RESPONDENT Commissioner of Police, NSW Police Force

FILE NUMBER: 083027

HEARING DATES: 20 April 2009 and 4 May 2009

SUBMISSIONS CLOSED: 4 May 2009

DATE OF DECISION: 3 July 2009

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Access to documents – documents affecting law enforcement and public safety

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

Johnston v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 82 Johnston v Commissioner of Police, New South Wales Police Service [2008] NSWADT 191 CASES CITED: McGuirk v Attorney General's Department [2007] NSWADT 138 Telefoea (No 2) v Commissioner of Police [2000] NSWADT 192 Trlin v Director General, Department of Fair Trading [2000] NSWADT 192 University of New South Wales v McGuirk [2006] NSWSC 1362.

APPLICANT P Johnston, agent REPRESENTATION: RESPONDENT K Mattes, solicitor

ORDERS: 1.The applicant's application in regard to the March 2007 documents is dismissed under paragraph 73(5)(g)(ii) of the Administrative Decisions Tribunal act 1997 2.The decision of the Commissioner in regard to the remaining documents is affirmed.

REASONS FOR DECISION 1 Mr Johnston, as agent for his mother, Shirley Johnston ('the applicant'), made an application for review of a 'deemed' decision of the Commissioner of Police ('the Commissioner') to refuse his mother's request for access to specified documents pursuant to the Freedom of Information Act 1989 ('the FOI Act'). The 'deemed' refusal arose by reason of sections 34(6) and 24(2) of the FOI Act. That is, the Commissioner having failed to make a decision within the time prescribed under these sections, he is deemed to have made a decision to refuse the applicant access to the documents she requested. 2 The FOI request for access had also been made by Mr Johnston on behalf of his mother. The request for access was in the following terms: '1. Complete and unexpurgated copies of all documentation generated as a consequence of the site assessment of Watts Road, Denistone East done by Sergeant Robert Tapply & Sergeant Glenn Milner of Eastwood LAC that was referenced in Sergeant Tapply's email responding to Philip Johnston which was dated 22 May 2007. 2. A complete copy of all statistical information relating to enforcement action in Watts Road, Denistone East over the two month period that included peak & off-peak periods cited in Sergeant Tapply's email dated 22 May 2007. 3. An unexpurgated copy of all information relating to the site assessment procedures for speed enforcement. 4. An unexpurgated copy of all documents that relate to site selection procedures for the use of radar/lidar.' 3 The Tribunal remitted the 'deemed' refusal decision to the Commissioner for re-consideration. On 28 April 2008, the Commissioner made a re-determination, which has formed the basis of the decision that is the subject of review in this application. 4 In that decision the Commissioner granted the applicant access to those documents which fell within Item 1 and 2 of her request. However, he refused the applicant access, in part or in whole, to those documents that fell within the terms of Items 3 and 4 of her request. The Commissioner identified 4 documents that fell within these Items and they were entitled as follows: - Instructions for Site Assessment (March 2007) - Standard Operating Procedures Stationary Speed Enforcement – Lidar and Radar (SSE) (March 2007) - Standard Operating Procedures Stationary Speed Enforcement (Lidar Operations) (August 2004) - Standard Operating Procedures Stationary Radar and Lidar Duties (9 May 2001) 5 The Commissioner's decision was to refuse the applicant access to the two 'March 2007' documents on the grounds that they were exempt under clause 4(1)(e) of Schedule 1 of the FOI Act (i.e. they contain matter the disclosure of which could reasonably be expected to prejudice the effectiveness of any law enforcement method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law). 6 In regard to the other two documents (i.e. the August 2004 and May 2001 Standard Operating Procedures documents), the Commissioner determined to provide the applicant with a copy of the documents with deletions. In some cases the deletions were identified as containing information that was exempt under clause 4(1)(e) of Schedule 1 of the FOI Act. The remaining deletions were identified as containing information that did not fall within the terms of the applicant's FOI request. 7 The two March 2007 documents had been the subject of an earlier application (see file no 073228) for review of a decision of the Commissioner under the FOI Act: see Johnston v Commissioner of Police, NSW Police Service [2008] NSWADT 191 ('the Tribunal's earlier decision'). Mr Johnston had made the FOI request and the application for external review on behalf of his mother. The Commissioner had refused the applicant access to the documents on the grounds they were exempt under clause 4(1)(e) of Schedule 1 of the FOI Act. The Tribunal affirmed this decision and Mr Johnston, again as agent for his mother, appealed the decision. The Appeal Panel dismissed the applicant's appeal: Johnston v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 82 ('the decision of the Appeal Panel'). The decision of the Appeal Panel was published in 21 November 2008, after the parties had filed their submissions in this application. 8 On 10 June 2008, I had made orders for the filing and serving of evidence and submissions by the parties and had formed the view that the issues for determination could be adequately determined on the papers. 9 The Commissioner filed and served his submissions and he also filed and served the statement of the Senior Sergeant Ronald Charles Dorrough, dated 25 September 2007. This statement was the evidence the Commissioner had relied on in the earlier application before the Tribunal (i.e. the application involving the March 2007 documents). 10 In his submissions, Mr Johnston contended that the matter should be listed for hearing and he requested that summonses be issued for Deputy Commissioner John Hartley and Senior Sergeant Dorrough to attend and give evidence and be cross-examined at a hearing of his mother's application. In light of these submissions and the subsequent decision of the Appeal Panel, I requested that the matter be listed for further directions on 20 April 2009. 11 On 20 April 2009, after hearing from Mr Johnston and Ms Mattes, solicitor of the Commissioner, I declined to approve Mr Johnston's request for the issue of a summons addressed to Deputy Commissioner Hartley. Ms Mattes submitted that there was no legitimate forensic purpose in the issue of the summons as all relevant evidence was contained in the statement of Senior Sergeant Dorrough. She also pointed out that Deputy Commissioner Hartley was no longer the officer responsible for the Traffic Services Branch and Senior Sergeant Dorrough, the officer responsible for traffic policy within the Branch, remained the most appropriate officer to give evidence of the issues that were before the Tribunal. 12 Mr Johnston was not able to point to any legitimate forensic purpose in being served by the issue of the summons on the Deputy Commissioner, other than him being the previous officer in charge of the Traffic Services Branch. There was no suggestion that the Deputy Commissioner would give evidence that was contrary to or in addition to that of the Senior Sergeant. The Appeal Panel decision, at [31], noted the difficulty a review applicant may find in establishing such a purpose when it is the agency that bears the onus of justifying its determination under section 61 of the FOI Act. Accordingly, it is for the agency to determine the most appropriate person to give evidence in support of its determination. 13 Ms Mattes indicated, however, that the Commissioner had agreed to make Senior Sergeant Dorrough available for cross-examination, if necessary, at a short hearing. Mr Johnston pressed for the attendance of the Senior Sergeant as he wanted to put some fresh evidence before him in regard to the dissemination of the documents to the public following a recent news item on the Channel 9 'A Current Affair' programme. On this basis and in light of the Commissioner's agreement it was unnecessary to deal with Mr Johnston's request for the issue of a summons addressed to him. Issues 14 There are several issues in this application. The first issue is primarily a factual one, namely whether the documents are within the public domain as asserted by Mr Johnston. 15 The next issue is whether the applicant's application, in so far as it relates to the March 2007 documents is an abuse of process and/or 'frivolous or vexatious or otherwise misconceived or lacking substance' and should be dismissed under paragraph 73(5)(g)(ii) (formerly section 73(5)(h)) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). It is the Commissioner's contention that these documents having already been the subject of determinations by the Tribunal and the Appeal Panel that the Tribunal should not reconsider them. 16 The final issue is whether: