Sawires v Commissioner of Police, NSW Police Force [2010] NSWADT 10

CITATION: Sawires v Commissioner of Police, NSW Police Force [2010] NSWADT 10

DIVISION: General Division

Applicant: Emad Sawires PARTIES: Respondent: Commissioner of Police, NSW Police Force

FILE NUMBER: 093066

HEARING DATES: on the papers

SUBMISSIONS CLOSED: 7 July 2009

DATE OF DECISION: 11 January 2010

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information - access to documents – form of access - personal affairs - diversion of resources

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

Cheney v Sydney West Area Health Service [2008] NSWADTAP 29 CASES CITED: Kiernan v Commissioner of Police, NSW Police [2007] NSWADT 207 McGuirk v Commissioner of Police, NSW Police [2008] NSWADT 72

Applicant Representative: In person REPRESENTATION: Respondent Representative: C Tipene, solicitor

ORDERS: The application is dismissed for want of jurisdiction.

REASONS FOR DECISION 1 Mr Sawires applied to the Respondent ("the Commissioner") under the Freedom of Information Act 1989 ("the FOI Act") seeking access to the following documents: A. Cops Event E 117133594 B. Brief of Evidence re above event C. CCTV footage of above event ("the CCTV footage") 2 A delegate of the Commissioner determined to release an exhibit book entry in full but that Event Summary E 117133594 and the Brief of Evidence are exempt under Clause 6(1) of Schedule 1 to the FOI Act. The delegate also determined to grant Mr Sawires access to view the CCTV footage pursuant to section 27(1)(c) of the FOI Act. 3 Mr Sawires sought an internal review of that determination seeking to obtain a copy of the CCTV. 4 The internal reviewer determined that the CCTV footage is exempt pursuant to section 25(1)(b1) of the FOI Act. 5 It is not in dispute that Mr Sawires was granted access to view the CCTV footage in accordance with section 27(1)(c) of the FOI Act or that Mr Sawires in fact viewed the CCTV footage on 18 December 2008, for no charge. 6 Mr Sawires has applied to the Tribunal for external review of the Commissioner's decision. The parties agreed that the matter should be determined on the papers without the need for a hearing. Relevant provisions: 7 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with that Act. 8 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. 9 Section 25(l)(a) of the FOI Act provides that an agency may refuse access to a document if it is an exempt document in accordance with one or more of the grounds of exemptions referred to in Schedule 1. 10 Section 25(l)(b1) of the FOI Act 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 agencies policies and practices. 11 Section 25(4)(a) of the FOI Act provides that an agency shall not refuse access to an exempt document, if it is practicable to give access to a copy of the document from which the exempt matter has been deleted. 12 Clause 6(1) of Schedule 1 to the FOI Act (Documents affecting personal affairs) provides that a document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person. 13 Section 27(1)(c) of the FOI Act provides: 27 Forms of access (1) Access to a document may be given to a person: (a) by giving the person a reasonable opportunity to inspect the document, or (b) by giving the person a copy of the document, or (c) in the case of a document from which sounds or visual images are capable of being reproduced, whether or not with the aid of some other device—by making arrangements for the person to hear or view those sounds or visual images, or ... (2) If an applicant has requested that access to a document be given in a particular form, access to the document shall be given in that form. (3) Notwithstanding subsection (2), if the giving of access in the form requested: (a) would unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions, or (b) would be detrimental to the preservation of the document or (having regard to the physical nature of the document) would otherwise not be appropriate, or (c) would involve an infringement of copyright subsisting in matter contained in the document, access in that form may be refused but, if so refused, shall be given in another form. (4) If an applicant has requested that access to a document be given in a particular form and access in that form is refused but given in another form, the applicant shall not be required to pay a charge in respect of the giving of access that is greater than the charge that the applicant would have been required to pay had access been given in the form requested. (5) This section does not prevent an agency from giving access to a document in any other form agreed on between the agency and the person to whom access is to be given. (6) An agency may refuse to give access to a document unless any charge payable in respect of dealing with the application, or giving access to the document, has been paid. 14 The onus is on the agency to satisfy the Tribunal that its decision was justified: section 61 of the FOI Act. The Commissioner's case 15 The Commissioner submits that pursuant to section 25(l)(b1) of the FOI Act 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 and practices. The Commissioner says that, in accordance with the agency's usual practice, it is appropriate to give Mr Sawires access to the CCTV footage, but not a copy of the CCTV footage. 16 As evidence of the agency's usual practice, the Commissioner relies on the affidavit sworn 12 May 2009 of Jennifer Rose McWhinnie, Senior Sergeant and the Coordinator of the NSW Police Freedom of Information Unit. She stated: 3 Throughout the course of my role as Coordinator of the NSW Police Freedom of Information Unit I am aware of numerous applications made under the Freedom of Information Act for access to video footage retained by the NSW Police. 4 In those instances, the NSW Police Freedom of Information Unit applies the following procedure: (a) When the footage contains images of persons other than the person making the FOI Application, the Police refuse access to the footage under clause 6(1) of Schedule 1 of the FOI Act. (b) The images of other persons are information affecting the personal affairs of those persons and the Police consider that it is unreasonable to release the footage, especially when the Police obtain the footage to investigate a potential breach of the law. (c) The Police do not usually consult with the owner of the footage or the individuals whose images are recorded in the footage before refusing to release it under clause 6(1) of Schedule 1. (d) This procedure is usually applied to all requests for access to recorded footage the Police have, including CCTV footage, irrespective of the age of the footage or the time since the events were recorded. 5 It is an unreasonable diversion of the resources of the NSW Police Freedom of Information Unit to delete the images of other persons from footage. I am aware of only two occasions where the applicant under the FOI Act has been granted access to CCTV footage. Only one of those matters has been finalised whilst I have been in the role of Coordinator. 6 In the matter that I am familiar with (FOI Application 68994) a consideration amount of time and expense was involved in deleting footage that contained the images of other persons. On this occasion the applicant had requested footage of himself in custody at Botany Bay Local Area command. The NSW Police negotiated with the applicant to grant access to CCTV footage containing images of only himself and Police Officers. The Freedom of Information Unit does not have the resources or equipment to edit visual footage. 7 In order to edit the footage the Freedom of Information Unit called upon the services of the Sate Technical Investigations Branch (STIB) to edit the footage. STIB is responsible for providing technical surveillance services in support of State and other Government Agencies. STIB's duties include installation and remote monitoring of listening devices; providing technical field support at siege, hostage, terrorist situations, and other emergencies; provision of supplementary security equipment for protection of visiting foreign and domestic VIP's and protected witnesses and electronic tracking of targets vehicles, vessels or 'things'. It is not a function of STIB to copy or edit footage for FOI requests. There is no other unit within the NSW Police Force that has the capability to copy or edit visual images. In the matter (FOI Application 68994) a Senior Constable from the NSW Police Force was required to view the footage in its entirety and then edit the footage appropriately. This took the Senior Constable away from his normal responsibilities of assisting the NSW Police Force in its function of law enforcement and crime prevention for a period of sixteen and a half hours (16.5 hours) for approximately four and a half hours (4.5 hours) of footage. Upon receipt of the edited footage a civilian officer within the Administrative Law Unit then had to view the footage to provide approval to STIB. This took approximately five hours. I am aware that the applicant then paid the NSW Police Force for the cost of editing and copying the footage. 8 In the past, NSW Police Freedom of Information Unit practice is to state the applicant can contact the Police Station where the footage is held and view the video footage at the discretion of the Local Area Commander and Officer in Charge. The NSW Police Freedom of Information Unit relies on section 25(1)(bl) of the FOI Act in granting than retain a copy. 17 The Commissioner submits that given the sensitive nature of the contents of the CCTV footage and the inclusions of images of other individuals, the decision to refuse to provide Mr Sawires with a copy of the CCTV footage was appropriate in the circumstances. The Commissioner relies on Kiernan v Commissioner of Police, NSW Police [2007] NSWADT 207 at paragraph [30] in support that submission. 18 The Commissioner also submits that the CCTV footage contains images of at least 15 other persons and is therefore exempt under clause 6(4) of Schedule 1 of the FOI Act on the basis that the CCTV footage contains information (images) affecting the personal affairs of other persons and it would be unreasonable to disclose that personal information. The Commissioner says that an individual's image is inherently information affecting the personal affairs of that individual. In McGuirk v Commissioner of Police, NSW Police [2008] NSWADT 72 at [26] Judicial Member Higgins confirmed that images on CCTV footage may concerns the personal affairs of those persons who are identifiable: 26 In regard to that portion of each CCTV video cartridge, relevant to Mr McGuirk's request, there are images of police officers, other workers at the police station, Mr McGuirk and other persons who appear to have been detained or questioned by police. In my opinion, it is only the images of the last category of persons, who are identifiable from the image, that are exempt under clause 6 of Schedule 1 of the FOI Act. That is the image concerns the personal affairs of those persons (i.e. if they are identifiable from the image) and disclosure of these would be an unreasonable disclosure. 19 The Commissioner submits that the CCTV footage is not merely a recording of persons "buying a Big Mac meal, and eating it, in public, just a few feet away from other members of the public" nor is it a recording of members of the public visiting a public area at their own free will. The Commissioner says that a restaurant is not a public place and that a recording of individuals in a private place, such as a restaurant or in police custody, is information affecting the private affairs of an individual and that it may be unreasonable in certain circumstances to disclose that personal information. The Commissioner says that footage of the inside of a private restaurant is not a recording in a "public place", and is not analogous to recorded images of individuals in a public place, such as a main street or sporting event. 20 The Commissioner submits that it would be unreasonable to disclose the CCTV footage given the fallowing: a. it is a recording of individuals in a private place; b. it records a number of those individuals involved in potentially criminal activities; c. it was provided to the Commissioner on the basis that the Commissioner would use the CCTV footage in criminal proceedings; and d. it has been relied upon by the Commissioner to bring criminal proceedings against a number of those individuals. 21 The Commissioner submits for these reasons it would be unreasonable in all of the circumstances for the Tribunal to release the CCTV footage to Mr Sawires. 22 The Commissioner also asserts that provision of the CCTV footage to Mr Sawires would involve substantial diversion of resources. In relation to that assertion the Commissioner relies on the affidavit of Jennifer Rose McWhinnie. The Commissioner says that, in view of the nature of the information recorded in the CCTV footage and the number of individuals involved, it is not practicable to provide Mr Sawires with an edited version of the CCTV footage and would require an unreasonable allocation of the Commissioner's time and resources to edit portions of the CCTV footage in the circumstances. 23 The Commissioner submits that the Tribunal should affirm the Commissioner's decision to refuse to provide Mr Sawires with a copy of the CCTV footage. Mr Sawires' case 24 Mr Sawires submitted that the CCTV footage was taken by cameras located inside a Kingsford McDonalds restaurant, during operating hours. He says that McDonald's restaurants around the state are fitted with CCTV cameras and warning signs. The restaurant is open to all members of the public and members of the public enter those premises of there own free will. 25 He argues that the personal affairs exemption does not came into play in this instance, as there is nothing personal about buying a Big Mac meal, and eating it, in public, just a few feet away from other members of the public. He says that the exemption should cover events that have been carried out by that person in private. He says that as CCTV cameras are widely used, members of the public who visit areas that are open to the public cannot expect that they will not be filmed or photographed. 26 Mr Sawires submitted that the CCTV footage is to be distinguished from of persons in Police custody. He says that persons in custody, who are there against their will, have the right to have their 'personal affairs' protected and to personal privacy. For that reason, he says that the decisions in Kiernan and McGuirk are not applicable to this matter. 27 He asserts that footage obtained from private business like McDonalds, shopping centres, sporting events, airports, petrol service station, media camera crews has, at times, released to the media. Footage, obtained as part of a police investigation, in police custody or elsewhere, has been released and aired on national TV. He also referred to footage of overly exited fans at sporting events that has made its way onto National Television. 28 Mr Sawires submitted that the term "personal affairs" means "the composite collection of activities personal to the individual concerned" and that the way a person acts in public is for all members of the public to see. 29 With respect to the content of the CCTV footage, Mr Sawires submitted that if any individual involved has been the subject of any criminal charges, the case would have been more likely then not done in open court, and subject to public record. 30 He further submitted that section 27(3)(a) of the FOI Act cannot be relied upon as the CCTV footage which already exists on CD, can simple be copied onto another CD at very minimal time and cost to the Commissioner. He says that he has had two previous cases involving custody video tapes and in both cases the Commissioner released a copy of the tapes to him. He submits that the same approach should be taken in this matter. Accordingly, he says, the decision to refuse to provide him with a copy of the CCTV footage should be set aside. Discussion 31 It is common ground that Mr Sawires was granted access to view the CCTV footage in accordance with section 27(1)(c) of the FOI Act. He seeks access in a different form. 32 In Cheney v Sydney West Area Health Service [2008] NSWADTAP 29 the Appeal Panel held that s 53(3) of the FOI Act did not give it jurisdiction to review an agency's decision as to the form in which access was to be given to a document. The Appeal Panel stated paragraphs [9] – [11]: 9 … the Tribunal had no jurisdiction to determine the manner in which Mr Cheney should be given access to the documents. Mr Cheney's application was under section 17 of the FOI Act which allows him to request access to documents held by an agency. The agency's decision not to allow him to view the original documents was made under s 27 of the FOI Act which relates to the forms of access that a person may be afforded. 10 Section 53(3) of the FOI Act sets out the circumstances in which a person is able to apply to the Tribunal for a review of an agency's decision. In particular, section 53(3)(a)(i) says that: For the purposes of this section, a person is aggrieved by a determination: (a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36 - if the determination is to the effect that: (i) an agency or Minister refuses to give the person access to a document 11 Neither that provision nor any of the other provisions in section 53(3) give a person a right to apply to the Tribunal for a review of a decision made under section 27 in relation to the form of access. To put it simply the FOI Act does not define a grievance about the manner of access as a matter that the applicant is entitled to seek review in the Tribunal. Consequently, the Tribunal had no jurisdiction review a decision about the form that access should take and similarly the Appeal Panel has no jurisdiction in relation to that matter. 33 For this reason, it is my view that the Tribunal has no jurisdiction to determine the manner in which Mr Sawires should be given access to the CCTV footage. The application should therefore be dismissed. 34 I note that if I am wrong on this issue, I accept the Commissioner's argument that the CCTV footage contains information affecting the personal affairs of other persons and it would be unreasonable to disclose that personal information. If the CCTV footage were to be released, it would be necessary to edit the CCTV footage to remove the personal information. I accept the Commissioner's evidence in regard to the cost of providing Mr Sawires with an edited copy of the CCTV footage and I agree that to do so 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. In the circumstances, it is my view that the correct and preferable decision is affirm the Commissioner's decision to refuse to provide Mr Sawires with a copy of the CCTV footage. Order The application is dismissed for want of jurisdiction.