Smith v Commissioner of Police [2012] NSWADT 85

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Smith v Commissioner of Police [2012] NSWADT 85 Hearing dates: 23 April 2012 Decision date: 07 May 2012 Jurisdiction: General Division Before: N Isenberg, Judicial member Decision: The decision under review is affirmed Legislation Cited: Government Information (Public Access) Act 2009 Cases Cited: Camilleri v Commissioner of Police [2012] NSWADT 5 Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Category: Principal judgment Parties: Corinne Smith (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: C Smith (Applicant in person) Commissioner of Police (Respondent) File Number(s): 113314

REasons for decision Background 1Dr Corinne Smith, the applicant, understands a relative of hers (by marriage) was arrested and charged in relation to child sex offences. He absconded while on bail in about 1983 and fled the country. His whereabouts, she understood, were unknown to police although when her sister divorced him the following year, he was able to be readily located to be served with divorce papers. 2From about 1990 the applicant and other members of her family have been subject to harassment by security guards when they visit shopping centres. The only reason she can think of as to why this has occurred is either there is some connection between members of the security industry and her ex-brother-in-law or some of his victims have those connections. She claims that the harassment has occurred about 100 times, occurring every second or third time she would shop. She claims that this has necessitated her avoiding shopping centres altogether. 3Although she had made some earlier complaints to police which were not, in her view, properly responded to, she wrote to the Commissioner in June 2006. As a result she was contacted by Inspector Stafford of Leichhardt Local Area Command. She attended an interview with him in August 2006. The application 4By application under the Government Information (Public Access) Act2009 (GIPA Act) dated 9 November 2010 the applicant sought from police 'a record of interview with Detective P Stafford in 2006'. Her application was refused on the basis that no records were held which met that description. She has sought review by the Tribunal. 5At the planning meetings the applicant clarified what she sought, and the respondent agreed, to extend the scope of her application to include: - notes (including any notes recorded in a police notebook) or all records of a meeting between the applicant and Inspector Stafford in 2006; - documents recording the process by which a letter from the applicant to the Commissioner of the New South Wales Police Force (dated 28 June 2008) was referred to Inspector Stafford for action; and - documents recording Inspector Stafford reporting on the outcome of his meeting with the applicant to the Commissioner. 6As a result, eight documents were produced to the applicant, but no documents were provided in relation to the meeting itself as none were said to be held. Legislative framework 7Section 53 of the GIPA Act sets out the obligations of agencies in locating government information in response to a request: (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources. 8S80(e) of the GIPA Act provides that a decision that government information is not held by the agency, is reviewable by the Tribunal. Evidence 9Evidence was given by Adrian Guest, the Manager, Records Management Support, within the Process and Records Services Unit, Shared Services, New South Wales Police Force. One of his major responsibilities is to administer the Police Total Records and information management (TRIM) corporate records management system. 10He said that correspondence to and from the police is given a unique TRIM identifying number. A document is fixed with a security level. Not all police officers have access to TRIM and those that do may still not be able to access documents unless they have the appropriate security access. He noted that one of the documents produced is noted as being "highly protected", and that searching by a person without that high level security clearance would produce a nil result. 11TRIM also has the capacity to locate related documents, notwithstanding that those documents themselves may not meet the search criteria. 12Dr Smith gave a lot of background evidence which is outlined above and need not be repeated. Relevantly, in relation to her dealings with Inspector Stafford, she said that she had written to the Commissioner and as a result had received a telephone call from Inspector Strafford, who suggested that they meet, either at her home or at the station. Her preference was to meet at Glebe police station and she took time off work in order to attend an appointment at about 2 PM. She could not now recall the precise date of the meeting. She said she was taken to an office at the back of the police station. There was no one else present and she could not remember if the door was open or closed or if anyone else came into the room. She did not know if the interview was recorded and Inspector Stafford did not tell her that it was being recorded. 13She said that Inspector Strafford had a copy of the letter she had written to the Commissioner and that portions of it were highlighted. He worked through the letter with her for about half an hour. She said Inspector Strafford had a small notebook with him and when she gave him the name of her ex brother-in-law, his approximate age, the nature of the offences with which he had been charged, the approximate date of his arrest and when he absconded on bail, Inspector Stafford wrote that in the notebook. She said Inspector Strafford wrote in the notebook and undertook to follow that up. She could not remember if he took the notebook out of his pocket or whether he had it out already. Otherwise she could not recall him making any notes. 14In relation to the harassment at shopping centres she said she was distressed and was asking for assistance. She said she asked Inspector Stafford to go to the Glebe shopping centre, where she had recently been subjected to harassment, and to set up a meeting with the head of security there. She said Inspector Stafford remarked that the head of security was a former police officer and that he had met him as part is of his familiarisation with Glebe area. She could not recall if Inspector Stafford mentioned in the meeting that she should take her complaints to the security industry body. 15She said she raised with Inspector Stafford the possibility that families of victims of her ex brother-in-law may have thought there was some connection between her family with his conduct. She said that when she made an earlier complaint in January 2006 another police officer had remarked that what was happening to her was bad but it was worse for "those young boys". From that remark she understood the police were well aware of the activities of her ex brother-in-law. 16About 2 to 3 weeks after they spoke Inspector Strafford telephoned her, but said very little and she really did not know the purpose of his call; he said nothing about having spoken to the security guards or that he had investigated her ex brother-in-law. He told her that her family should move on with their lives, but said that they should be able to shop in peace. She denied telling him that she was satisfied with the investigation. She said the situation did not change in relation to the harassment, but she did not give any evidence about making further complaints to Inspector Stafford. 17Inspector Strafford provided a statement and gave evidence. He said that he was asked by the Commander of the Local Area Command (LAC) to look into the applicant's letter to the Commissioner. He said he spoke with the applicant a couple of times and invited her to come to the station to discuss the matter. Given the meeting was in August or September 2006, he now has only a vague recollection of meeting with the applicant. 18He said that his meeting with her was not recorded, as it was not his practice to record community liaison meetings. He thought he would most likely have had a copy of the correspondence and that he may have made notes on it. He thought he probably also had a notepad in the event he needed to make notes. He does not remember making any notes whatsoever because he considered there was no information being provided. 19He denied that he had used his official notebook on that occasion. He said that he would only have used his notebook if there were criminal allegations and intelligence information that needed to be followed up. Notebook entries were transcribed onto the computerised operating police system (COPS). 20He said that nothing specific came out of the meeting. The conversation was very broad based; he found the applicant's discussion to be vague, disjointed, and long-winded. He said there were no issues of allegations of criminal conduct and no new victims of crime. 21He said they discussed the applicant's concerns about people in the security industry. He said she believed the security guards at the shopping centre at Glebe were paying attention to her and that there was no reason for them to do so. She felt they had information about her and that she was under surveillance. He said she was unable to give particulars of times and dates of the alleged harassment and her allegations were very broad. He said it was his duty to advise her as to the appropriate avenue for complaint because he was unable to identify anything the police could do to assist. He said police are concerned only with licensing of security guards and not in relation to their day-to-day conduct. The type of conduct about which she was complaining was an issue for complaint to the security guards' employer, or to the security industry peak body, and was not a criminal matter. 22In relation to her ex brother-in-law, he said that he was not at liberty to discuss with her allegations in respect of another person. He thought he undertook a check and learned there was no investigation nor any outstanding warrant in respect of the applicant's ex brother-in-law. Although the applicant believed that her ex brother-in-law had absconded, there was nothing on the COPS system to that effect. The applicant did not raise new evidence in relation to her ex brother-in-law. If there had been new evidence to capture he would have taken a formal statement from her. 23He could not specifically recall phoning the applicant back after the meeting. 24As to his note in response to an enquiry by the LAC commander, that the applicant was "totally satisfied", he said that he had spent about 40 minutes with the applicant trying to sort out her actual concerns, compared to her perceived, concerns. He believed that he had managed her issues as far as was necessary. There were no criminal enquiries because none were warranted. He formed that opinion on the day and gave the applicant an outline of what she should do. He said she appeared to be happy with him making an enquiry about the security industry. He felt he had done all that he could do - and all that was required - within the scope of her issues. The only course was to refer her to the security industry body in relation to the perceived harassment so that she could lodge a complaint. Those details were formally provided to her by the LAC Commander in his letter of 12 September 2006. 25Inspector Strafford said he does not have access to TRIM and had caused an administrative officer to conduct a search. The person had only basic TRIM access. He was unaware that there were areas in the TRIM system that were subject to secure only access. Consideration 26As I observed in Camilleri v Commissioner of Police [2012] NSWADT 5, the ultimate question for the Tribunal is whether the agency's conclusion that it does not hold information is sound. 27In making a decision as to the sufficiency of an agency's search for documents which an applicant claims to exist, there are two questions: (a) are there reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so, (b) have the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. 28This approach, outlined in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, has been consistently followed by the Tribunal in, for example, Patsalis v Commissioner of Police, New South Wales Police Service[2003] NSWADT 213 at [52]. 29As to whether there are reasonable grounds to believe that the requested documents exist, the respondent accepted that there was evidence that may lead the Tribunal to that view. 30Firstly, there was no evidence that would lead me to the view that there was any recording of the meeting between the applicant and Inspector Stafford. 31The evidence in relation to any notes, however, is in conflict: the applicant was of the view that Inspector Stafford made notes in his notebook about her ex brother-in-law whereas his evidence was to the effect that, other than possibly making notes on the copy of the applicant's correspondence to the Commissioner he had been given by the LAC Commander, no notes had been made in his notebook because there was no need to do so. 32I have come to the view on balance, that it was likely that some notes, however brief, were made at the time of the meeting. I have come to this view both on the basis of the applicant's recollection of some note-taking and from the fact that Inspector Stafford apparently made a follow up enquiry sufficient to be able to brief the LAC Commander with the provision of the detail of the security industry body to which the applicant was formally referred. After that, there was, in my view, no reason to retain the copy of the applicant's correspondence to the Commissioner he had been given by the LAC Commander where, on his evidence, he may have made notes. 33This then raises the question, simply put of what searches have been made to locate any notes, and whether those searches were adequate. 34The key factors to be considered in assessing whether a sufficient search had been carried out were discussed in Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. These factors included, relevantly, the way the agency's recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be reasonably inferred by the agency from any other information supplied by the applicant. What constitutes a sufficient search will vary with the circumstances of each matter. 35As to whether have the search efforts made by the police to locate all documents have been reasonable, I consider that the evidence of Mr Guest adequately explained the subsequent identification and production of documents which had not been located when Inspector Stafford had first arranged a TRIM search. I accept that the product of Mr Guest's search has produced all the material on that system. 36More problematic was whether there was information in Inspector Stafford's notebook. From his evidence it was not clear to me whether he had searched for and located the notebook for the relevant period, and checked it. This might have confirmed, one way or the other, the applicant's recollection that Inspector Stafford made notes in his notebook. His evidence was clear though he would only have made notes in his notebook if he considered there were criminal activities to be followed up, and he was of the view at the time - and remains of the view - that there was none. He also gave clear evidence, which I accept, that when information is recorded in the notebook it is transcribed, as a matter of course, onto the COPS system. He had searched COPS and had located nothing. I have come to the view therefore that the notebook is unlikely to contain any entry in relation to the meeting. 37In Patsalis at [63], President O'Connor said that the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, does not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate. While, as I have said, it might have been desirable for the respondent to have had Inspector Stafford's notebook searched, I do not accept, in the light of the explanation that entries would be transcribed onto COPS and the absence of any entries there, that the search has not been reasonable, sufficient, or adequate. My conclusion is that it would be a waste of time to ask the agency to do any more searches. 38My conclusion is unlikely to address all the concerns raised by the applicant in her submissions, but stress that many of her concerns are not matters over which the Tribunal has jurisdiction. Decision 39The decision under review is affirmed.