Irvine v Commissioner of Police, New South Wales Police Force [2012] NSWADT 245

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Irvine v Commissioner of Police, New South Wales Police Force [2012] NSWADT 245 Decision date: 27 November 2012 Jurisdiction: General Division Before: S. Higgins, Deputy President Decision: The decision of the respondent is affirmed. Catchwords: Government Information (Public Access) - decision that information is not held by the agency Legislation Cited: Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Government Information (Public Access) Act 2009 Law Enforcement (Powers and Responsibilities) Act 2002 Road Transport (Safety and Traffic Management) Act 1999 Weapons Prohibition Act 1998 Category: Principal judgment Parties: Graham Oliver Irvine (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: G Irvine (Applicant in person) Sparke Helmore Lawyers (Respondent) File Number(s): 113333

REasons for decision

Introduction

1The applicant, Mr Irvine, seeks review of a decision of the respondent, the Commissioner of the NSW Police Force, in regard to his application for access to documents under the Government Information (Public Access) Act 2009(the GIPA Act). 2The applicant's request for access to documents was in the following terms: '... written authorisation required under section 41 of the Law Enforcement (Powers and Responsibilities)Act 2002 (NSW) executed by the Senior Police Officer who gave authorisations to erect road blocks at and near Nimbin NSW on Friday 25th Saturday 26th February 2011.' 3The applicant's application was made in early April 2011. On 2 May 2011, a delegate of the respondent decided that the information on which the applicant had sought access was not held by the agency: see paragraph 58(1)(b) of the GIPA Act. 4On 2 June 2011, the applicant sought internal review of this decision. Another delegate of the respondent made a determination in regard to the internal review application on 10 June 2011. The decision on the internal review was to affirm the decision that had originally been made in that the internal reviewer also found that the information sought by the applicant was not held by the agency. In the reasons for decision, the internal reviewer said that enquiries had been made to the Lismore Police Station and that Inspector Bruce had advised that there were no road closures on the days in question at the specified location. What had occurred on the days in question, Inspector Bruce advised was a police operation, involving several police strategies, including stationary Random Breath Testing (RBT). Stationary RBT he said did not involve a roadblock as described in the applicant's application for access. 5On 10 August 2011, the applicant made an application for review of the respondent's internal review decision to the Office of the Information Commissioner (OIC): see Part 5 of the GIPA Act. On 31 October 2011, the OIC informed the applicant that it had determined, on the basis on the information provided to it by the respondent, that the respondent did not hold the information for which he sought access. 6Being dissatisfied with the determination of the OIC, on 28 November 2011, the applicant sought external review by the Tribunal. 7The matter first came before me at a planning meeting on 24 January 2012. The application was again before me at a planning meeting on 21 February and 17 April 2012. The applicant and the respondent filed their respective evidence in regard to the alleged 'roadblock'. 8On 17 April 2012, the applicant pressed his application for a review. He also foreshadowed an application that I recuse myself from hearing and determining his application. By consent, orders were made in regard to the applicant's foreshadowed application and also an order that the respondent file and serve a document which identified what constituted a roadblock for the purpose of section 37 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPR Act). The parties also agreed that the applicant's foreshadowed application (if pressed) and his substantive application were to be determined, on the papers, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997(the ADT Act). 9On 24 July 2012, the applicant filed and served his written submissions in which he did not press his foreshadowed application that I recuse myself. His submissions went on to deal with the substantive matters in issue. I have dealt with these in more detail below.