Eloss v Commissioner of Police, New South Wales Police Force [2011] NSWADT 97

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Eloss v Commissioner of Police, New South Wales Police Force [2011] NSWADT 97 Hearing dates: 17 November 2010 Decision date: 06 May 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The decision of the respondent to refuse Mr Eloss access to the ICV recording is set aside and in substitution thereof a decision that Mr Eloss be granted access to the ICV recording the subject of this application. Catchwords: Access to documents - in-car-video - refusal of access on grounds that the document is available for inspection at the agency in accordance with the policies and practices of the agency Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Cases Cited: Cianfrano v Director General, Premier's Department [2007] NSWADT 216 Johnston v Commissioner of Police, NSW Police Force [2009] NSWADT 181 McGuirk v University of NSW [2009] NSWCA 3 University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 University of New South Wales v McGuirk [2006] NSWSC 1362 Category: Principal judgment Parties: Ahmed Eloss (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Mr B Eurell (Applicant) Ms A Johnson (Respondent) File Number(s): 103123

Reasons for decision

Introduction 1The applicant, Mr Ahmed Eloss, has sought review of a decision of a delegate of the respondent, the Commissioner of Police, to refuse him access to documents he had sought access to under the provisions of the Freedom of Information Act 1989 (the FOI Act). 2The documents Mr Eloss had sought access to concerned an incident that occurred, on the evening of 1 September 2007, between himself and the police. On the evening in question, police officers, while conducting stationary random breath testing on King Georges Road, stopped Mr Eloss' car and another car. Police stopped them as they believed the two cars were 'street racing.' Mt Eloss was driving his car and he and the driver of the other car pulled over as directed. After Mr Eloss stopped, one of the police officers, Constable Rider, approached Mr Eloss who remained sitting in his car. Mr Eloss asserts that Constable Rider hit his car with a breathalyser and damaged the bonnet of his car. He also asserted that Constable Rider had hit him in the jaw. Mr Eloss asserts that he immediately complained about what had happened. It would appear that a few days later Mr Eloss and the driver of the other vehicle were charged with an offence of 'street racing'. They were served with a Court Attendance Notice and when the matter came before the Local Court Mr Eloss pleaded not guilty to the offence charged. A police brief of evidence was prepared, but not served on Mr Eloss as the police subsequently withdrew the charge. Mr Eloss however, pleaded guilty to an offence of speeding. 3Constable Rider's supervisor investigated Mr Eloss' complaint about Constable Rider's alleged misconduct. Mr Eloss and others were interviewed on 6 September 2009 in regard to the complaint. On 30 October 2009, Mr Eloss was advised that the Director of Public Prosecutions had determined that there was insufficient evidence to sustain his complaint of assault and malicious damage. In December 2009, Mr Eloss' solicitor sought a more detailed explanation about the investigation and findings in regard to his complaint. It would appear the respondent replied by suggesting Mr Eloss make a request under the FOI Act for this information. He made such a request and this application for review arises from that request. 4The respondent failed to make a determination, within the time prescribed in the FOI Act, so Mr Eloss sought internal review under section 34 of the Act, as he was entitled to do. On this occasion the respondent identified a number of documents, including the police in- car-video recording of the 1 September 2007 incident (the ICV recording). The respondent determined to grant Mr Eloss access to a number of the documents that had been identified as falling within his FOI request (some documents were provided in full and others were provided in part). The respondent refused to give Mr Eloss access to the remaining documents, including the ICV recording. It was this decision for which Mr Eloss sought review. 5In accordance with the Tribunal's procedures for dealing with applications for review of decisions under the FOI Act, Mr Eloss' application came before me at a number planning meetings. During these meetings, the respondent agreed that a number of the documents in dispute should be made available to Mr Eloss. On each occasion, by consent, I made orders setting aside the decision of the respondent in regard to these documents and in substitution thereof I made a decision that Mr Eloss be granted access to the documents in question. The matter was then listed for hearing in regard to the remaining documents in issue, including the ICV recording. 6At the commencement of the hearing, I was informed by the solicitor for the respondent that the respondent had agreed that Mr Eloss be granted access to some additional documents and that the only document remaining in issue was the ICV recording. By consent, I again made orders in respect to those documents the respondent had agreed access should be granted and the hearing was limited to the question as to whether the respondent's decision to refuse Mr Eloss access to the ICV recording was the correct and preferred decision (see section 63 of the Administrative Decisions Tribunal Act 1997).