Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86

Appeal Panel - Internal

CITATION: Coote v Commissioner of Police, New South Wales Police Force (GD) [2008] NSWADTAP 86

APPELLANT Peter Lindsay Coote PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Force

FILE NUMBER: 089068

HEARING DATES: 3 December 2008

SUBMISSIONS CLOSED: 3 December 2008

DATE OF DECISION: 23 December 2008

BEFORE: O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Bolt M - Non-Judicial Member

CATCHWORDS: Freedom of Information - Adequacy of Search - Jurisdiction

DECISION UNDER APPEAL: Coote v NSW Police Force [2008] NSWADT 220

FILE NUMBER UNDER APPEAL: 083018

DATE OF DECISION UNDER APPEAL: 08/11/2008

LEGISLATION CITED : Freedom of Information Act 1982 (Cth) Freedom of Information Act 1989

Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 CASES CITED: Chu v Telstra Corporation Ltd [2005] FCA 1730 Coote v Commissioner of Police, NSW Police Force [2007] NSWADT 128

APPELLANT In person REPRESENTATION: RESPONDENT R Saunders, agent

ORDERS: Appeal dismissed

REASONS FOR DECISION 1 This is an appeal from a decision by the Tribunal to dismiss an application for want of jurisdiction. 2 On 16 November 2007 the appellant made a request under the Freedom of Information Act 1989 (FOI Act) to the respondent agency, the NSW Police Force, for disclosure to him of a document to which reference had been made in a document supplied in response to a previous FOI request. 3 At hearing the appellant, Mr Coote, explained that he had been a later age entrant around the year 2000 to the Police Force, and had been discharged a few years later. He had later applied to rejoin the Police Force. The request made on 16 November 2007 had as its objective the obtaining of documents relating to the Police Force's decision not to re-employ him. 4 In reply to the earlier request, he was provided with a document bearing the notation NSWP/D/2006/39494. The document had a half page of text, and referred to his application for re-employment as a re-joinee [sic]. The author was a Sergeant Weston. It was dated 28 February 2006. It had four headings 'Issue', 'Background', 'Comment' and 'Recommendation'. The material under 'Comment' referred in summary to adverse reports made by colleagues over his capabilities as a police officer. The recommendation was that his application to re-join be rejected. Under 'Background' it says, 'See attached file'. The file was not supplied. The request made 16 November 2007 was for: 'Documents referred to in Sgt Weston's report namely identified as Background – See attached file'. 5 The appellant filed an application for review in the Tribunal on 22 January 2008 to which was appended the decision (11 January 2007) made on internal review by the agency. 6 The agency's internal review decision (11 January 2007) indicated that only one document had been located, a fax dated 10 February 2006 from Snr Constable Fitzjohn. The following description was given: 'The document provided contains details of enquiries made by the Recruitment Branch to Mr Coote's former command.' This document merely recorded the fact of enquiries being made. 7 This document contained no information of a substantive kind. Reasonably in the opinion of the Appeal Panel, Mr Coote formed the view that this was not the kind of file document to which Sgt Weston's report had referred by way of background. 8 In the present matter the appellant had pressed the view, especially in the course of planning meetings, that it defied logic that the background file could not be found, and supplied. He gave an account of the circumstances of his discharge from the Police Force. He had pursued a complaint of age discrimination which was referred to the Equal Opportunity Division of this Tribunal for determination (dismissed, see Coote v Commissioner of Police, NSW Police Force [2007] NSWADT 128). 9 Where an agency determines to release all documents covered by request without amendment or qualification, there is no right to apply for review by the Tribunal. The jurisdiction of the Tribunal is concerned with determinations that involve negative outcomes. Scope of Jurisdiction 10 The categories of jurisdiction are: review of determination to refuse document; determination to give access subject to deferral; determination to give access to a document with deletions; determination to apply a charge for access which is considered to be unreasonable; or levying of a charge which is considered to have been unreasonably incurred: see FOI Act, s 53. (There are also categories of jurisdiction dealing with situations not relevant to this application – by third parties affected by a proposed release of documents, and dispute over the amendment of personal records that have been supplied to the subject.) 11 At the time the present application was filed the Tribunal had considered that it had jurisdiction to deal with an application where an applicant asserted, contrary to the agency's statement, that it had not fully responded to a request. Often applicants complain that the documents produced by an agency, allegedly making a full response to a request, are incomplete, and that other documents exist which should have been identified and dealt with. The Tribunal had been of the view that a failure by an agency to deal with a document that it held which fell within the terms of a request amounted to a deemed refusal of that document (see s 24(2)), and on that basis the jurisdiction of the Tribunal could be engaged. 12 On 19 June 2008 the Court of Appeal dealt with a referred question, being whether the Tribunal had jurisdiction to review cases where the agency had issued a notification under s 28(1)(b): Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce & Ors [2008] NSWCA 140 (Cianfrano 140). 13 Section 28(1) provides: ' 28 Notice of determination An agency shall cause written notice to be given to the applicant: (a) of its determination of his or her application; and (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.' 14 The Court of Appeal held: '(a) The jurisdiction of the Administrative Decisions Tribunal is relevantly limited to determinations under s 24 of the Freedom of Information Act 1989; (b) the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24; (c) the jurisdiction of the Tribunal conferred by s 53 of the Freedom of Information Act does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents made pursuant to ss 17 and 18 of the Freedom of Information Act.' 15 This case was still at the planning meeting stage when the Court of Appeal decision was delivered. The Tribunal made directions for the filing of submissions as to whether it should continue to deal with the case. With the agreement of the parties, it decided to determine the matter on the papers. Submissions closed on 18 July 2008, and the Tribunal delivered its decision on 11 August 2008. 16 While in this case there had been no notification precisely in terms of s 28(1)(b) issued, on 11 January 2008 the agency had only found one document relevant to the request. It had released that document in full. In this respect the case was like Cianfrano 140. There the matter had proceeded upon the basis that although there had been no express notification under s 28(1)(b) of the FOI Act that the Department did not hold a document, this was seen as implied in the Director-General's letter of 16 November 2004. He had indicated the documents to which he would grant access and the documents to which access was refused and that implicitly included a statement that the Department did not hold any other documents. 17 Prior to the Court of Appeal decision there had, in the planning meeting process, been developments in relation to Mr Coote's questioning of the adequacy of the agency response. Further enquiries had been undertaken with the encouragement of the Tribunal. By letter dated 26 May 2008 from the Office of the General Counsel, NSW Police, Steven Sheather, solicitor, said to the appellant (emphasis added): 'On 06 May 2008 as a result of my request for further searches and affidavits, I received a reply from an officer at the Quakers Hill Police Station who provided me with a document tracking number or, as it is also known, an EDMS number. She indicated that the last movement of a file of documents relating to you was within Legal Services (as it was then known) and suggested I check with this command. Following on from that advice, and now armed with the EDMS number provided by Quakers Hill I attended the Records Section here at the Office of General Counsel and caused a fresh search to be undertaken. As a result of that search a legal file was retrieved relating to a discrimination case you had against the NSW Police Force. Upon closer examination of that file, it became apparent to me that the documents sought by you in respect of your current FOI matter were contained within. It would seem that the original documents from Quakers Hill Police Station and the applicants re-joinee [sic] recruitment file had been sent here in respect of the applicants discrimination complaint some time ago, and never returned to the Recruitment Branch. This would explain why the Quakers Hill Local Area Command and the Recruitment Branch could not locate the documents sought. Legal Services, it would seem had them all along. Once located, it seemed to be a waste of time and resources to require officers from those Commands to create affidavits in respect of their searches and accordingly, I did not press for their creation. Whilst I am not in a position to file affidavits at this point in time for the reasons discussed above, it is pleasing to be able to inform you and the Tribunal that the documents sought, have been located. I understand the matter has a checked [sic] history and has already been remitted to the Commissioners delegate on one prior occasion. It may be appropriate in the circumstances, to remit the matter yet again for further consideration (given that the file has been located).' 18 In its decision, the Tribunal said: '7 In support of his written submissions the applicant provided an affidavit in which he identifies two incidents which occurred while he was a student police officer with the NSW Police from September 2003 to December 2003 and then a sworn officer to April 2004. In the first incident a supervisor stated that she was going to write a report, and the applicant states that while he did not see the report he "would take her word that she filed that report and it sits on my personnel file". The second incident included a conversation with Sergeant Weston, who referred to a report about the incident. The applicant refers to a further incident after he resigned from the NSW Police involving his daughter, as a result of which he made a formal complaint to the Police Integrity Commission. The applicant states that the compliant was passed back to Police internal affairs and he has never seen the result of the complaint, although there is a reference in one of the documents to the applicant holding a grievance towards an officer at Quakers Hill LAC. The applicant states that he has not been allowed to see the report or result of that complaint "but the Commission is quite clear about its existence". In his written submissions the applicant relies on the letter from the respondent's then representative on 26 May 2008 which includes the statement that a legal file had been retrieved and that it appeared that the documents sought by the applicant were contained therein. The applicant submits that the Court of Appeal decision does not apply in circumstances where the file has been located and no search is needed, and relies on the Federal Court decision in Chu v Telstra Corporation Ltd [2005] FCA 1730.' 19 The Tribunal held that Chu was irrelevant as the Commonwealth Freedom of Information Act 1982, as amended in 1991, expressly conferred an adequacy of search jurisdiction. We agree. 20 In spite of the statements made in Mr Sheather's letter, the agency had subsequently maintained its assertion that it had given full access in relation to the only document located by it that related to the terms of the request. The Tribunal proceeded to deal with the matter on that basis. 21 The Tribunal said at [11]: '11 The applicant's request was for access to the "file" referred to in a report sent on 28 February 2006 by Sergeant Weston to Senior Constable Fitzjohn in response to his request dated 10 February 2006. The applicant's case is that any "file" would consist of more than one document, and that in his case it should include at least the reports referred to in his affidavit dated 4 July 2008. The respondent's determination dated 12 June 2008 declined to vary the original decision dated 11 January 2008. That decision was to release in full the fax dated 10 February 2006. The respondent's case is that the only document included within the scope of the applicant's request for access is Senior Sergeant Fitzjohn's fax dated 10 February 2006, and that the applicant has been provided with a copy.' 22 The Tribunal's conclusion is clearly correct on the basis of the assumption as to fact with which it started. As we see it, we must proceed to deal with the case on the same assumption as to fact that the Tribunal made. 23 The Tribunal gave the following account of the Court's reasoning in these issues, which, in our view, is accurate: '16 Beazley JA set out the ambit of the review jurisdiction conferred by s53 of the FOI Act in the following terms: [68] … Section 53 provides for the review of a determination. The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in s53(1) that draws such conduct within the Tribunal's review function. A statement that an agency does not have a document is not a "determination within the meaning of s24(1). 17 Beazley JA concluded (at [76]) that there is nothing in the FOI Act that confers jurisdiction on the Tribunal to conduct a review of, or enquiry into, the sufficiency of an agency's search for documents. 18 Basten JA held (at [108]): …However, consistently with the scope and objects of the legislation and the expressed intention that the FOI Act shall be applied so as to further those objects and so as to facilitate and encourage the disclosure of information (s 5(3)), s 25 should be seen as an exclusive statement of grounds on which access may be refused. 19 Beazley and Basten JJA, with whom Giles JA agreed, noted that the failure of an agency to consider or adequately consider an application could be the subject of a complaint to the Ombudsman.' 24 Consequently, the applicant and the Tribunal are bound by the agency's declaration as to the outcome of its searches, and can not go beyond it. 25 The case, nonetheless, troubles the Appeal Panel. It is difficult to understand how a senior officer of experience could have said what was said in the letter of 26 May 2008, and for the agency then to maintain the position it did before the Tribunal. 26 In an effort to bring this matter to resolution, at the close of the hearing the Appeal Panel recommended to the appellant that he file a new FOI request. It recommended that the new FOI request specifically requests the documents referred to in Mr Sheather's letter of 26 May 2008, in particular, the Recruitment File as it relates to both recruitment events [the original recruitment and the failed application to re-join]; and secondly, the Equal Opportunity proceedings file [held by the agency] in connection with the Administrative Decisions Tribunal matter 071043. 27 This decision will be referred to the Ombudsman for consideration of the difficulties it highlights as part of the Ombudsman's review of the operation of the Freedom of Information Act.