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. Issues 10There is no dispute that the decision for which the applicant seeks review is a reviewable decision by the Tribunal: see subsection 38(1) of the ADT Act and section 100 of the GIPA Act. 11The role of the Tribunal in reviewing the decision of the respondent is set out in section 63 of the ADT Act. That section provides as follows: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 12The applicable law in this application is that set out in the GIPA Act. And as provided for in subsection 63(2) of the ADT Act, in determining a review application, the Tribunal sits in the shoes of the decision maker and considers the matter afresh. 13In his written submissions, the applicant said he sought the following orders: (a) an order that the respondent provide the reasons for the police actions at Nimbin on 25 and 26 February 2011, and (b) a declaration that the police acted outside their jurisdiction and with the absence of a statutory authority. 14As can be seen from the terms of section 63 of the ADT Act, orders of this nature do not fall within the Tribunal's jurisdiction. However, in examining whether the respondent's decision is the correct and preferred decision, the Tribunal is able to consider whether the respondent's determination was responsive to the applicant's request for access. Relevant law 15The GIPA Act makes provision for access to 'government Information'. The objects of the Act are set out in section 3 as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 16The term 'government information' is defined in section 4 of the GIPA Act to mean 'information contained in a record held by an agency'. 17Part 2 of the GIPA Act sets out the ways in which 'government information' can be accessed, which includes the making of an access application under Part 4 of the Act: see section 9. Part 2 also sets out the general principles that are to apply to accessing 'government information'. For example, section 5 contains a presumption in favour of the disclosure of 'government information' unless there is an 'overriding public interest against disclosure'. Division 2 of Part 2 of the GIPA Act contains general principles in regard to public interest considerations in favour of disclosure and public interest considerations against disclosure. It is unnecessary to repeat these for the purposes of this application other than to say that section 13 in this Division sets out the test to be applied in determining whether there is an overriding public interest against disclosure. 18There is no dispute that the applicant made his application for access under Part 4 of the GIPA Act: see section 41 of the GIPA Act. 19Section 53 of the GIPA Act sets out the obligations on an agency in regard to searches for the information for which access has been sought. That section is in the following terms: 53 Searches for information held by agency (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 1998 or 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. 20Section 58 sets out how an application for access is to be decided. That section provides as follows: 58 How applications are decided (1) An agency decides an access application for government information by: (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 21Section 80 of the GIPA Act sets out those decisions, which are 'reviewable decisions'. That section provides as follows: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object). 22In this application, the decision of the respondent the subject of review is a decision made under paragraph 58(1)(b) of the GIPA Act and by reason of paragraph 80(e) of that Act it is a 'reviewable decision'. Section 100 of the GIPA Act provides that 'reviewable decisions' are reviewable by the Tribunal. Where an application for review of a reviewable decision is made to the Tribunal, subsection 105(1) of the GIPA Act provides that 'the burden of establishing that the decision is justified lies on the agency'. That is, the respondent bears the onus to establish that its decision that the information for which the applicant has sought access, is not held by it. The evidence 23In support of its decision the respondent filed and served: (a) a statement, dated 17 February 2012, made by Detective Sergeant Paul Fredericks of Lismore Police Station, (b) a statement, dated 21 March 2012, made by Constable Hilda Craigie of Ballina, and (c) four photographs of NSW Police Officers performing stationary road breath testing. The photographs were file photographs and not photographs of the police operation at Nimbin on 25 and 26 February 2011. 24In his statement Detective Sergeant Fredericks explained that he is the team leader of the Richmond Target Action Group at Lismore Police Station. He said his duties include the supervision of staff and operations conducted by the Target Action Group within the Richmond Local Area Command. He said, on the date in question, police were involved in a series of policing strategies that included random breath testing, use of a drug detection dog, vehicle and personal enquiries. The operation, he said was called Operation Yagan and was run with the assistance of officers from the RTA and the Department of Immigration. 25Detective Sergeant Fredericks said that Constable Craigie was the Operation Case Officer, who maintained overall responsibly for the supervision of the Operation. Detective Sergeant Fredericks said he was also present during the Operation and that it did not involve the establishment of a roadblock or road closures, requiring a written authorisation under the LEPR Act. He explained that a general drug detection warrant had been issued by Lismore Local Court, which enabled police to use a drug detection dog during the course of the Operation. He also noted that section 13 of the Road Transport (Safety and Traffic Management) Act 1999 (Road Transport Act) authorise any NSW police officer to conduct random breath testing. That is, no written authorisation is required in order to conduct such testing. 26In her statement, Constable Craigie gave similar evidence to that contained in the statement of Detective Sergeant Fredericks. 27At paragraphs 7 to 10, Constable Craigie went on to say: '7. When carrying out RBT NSW Police Force Policy requires police officers to establish an "exclusion zone" which is the point from where a Police officer requires a particular vehicle to stop and the stopping location. In setting up an RBT, police officers may use equipment such as a "police stop" baton or sign, warning lights, witches hats, message boards and additional signage to assist Police guide vehicles safely to the exclusion zone for the purposes of an RBT. Once the RBT has been conducted (and assuming a positive result is not identified), the vehicle can leave the exclusion zone and re-enter traffic. 8. An RBT exclusion zone is not a road block for the purposes of LEPRA. 9. Operation Yagan came about because as an operational officer within the Target Action Group, it is about coactively targeting high volume crime. One of the areas targeted is the interruption of drugs supply and drug possession. In my experience working in that Nimbin area, these operations have been very successful resulting in elicit and illegal drugs being seized and confiscated from people in vehicular traffic upon access roads into Nimbin. 10. Police have a range of information sources to support their warrant applications to support these types of operations.' 28The photographs supplied by the respondent as an example of how police position themselves, their witches hats and signs show that the witches hats are placed along the side of the road as a barricade for those vehicles which are stopped by police for the purpose of breath testing the drivers. However, the witches hats are not placed on the road in a manner which obstruct the traffic on the road in any way. Nor do the positioning of the police and the stopped vehicles create an obstruction. 29The applicant filed and served a number of statements from people who live within the Nimbin region who give evidence about what they saw on the days in question. 30In her statement, dated 23 March 2012, Ms Donna Strachan said the following: '2. I have lived in the Nimbin area for eight years and am familiar with the local roads. 3. On Friday 25th February 2011 at approximately 9.50am I was the driver in a vehicle heading to Nimbin. Near the intersection of the Lismore-Nimbin Road and Stony Shute Road, approximately one kilometre from Nimbin. I observed a roadblock consisting of several traffic cones and ("witches' hats") placed on the road and several police officers standing on the road so as to create a barrier and obstruction, preventing or limiting the passage of all vehicles and pulling up almost all vehicles in either direction.' 31Elspeth Christian Jones, made a similar statement. 32In a letter, dated 15 March 2012, Ian Wycombe, News Editor of the Community Radio Station NIM-FM.1 said the following: 'I can confirm a police roadblock did occur on Friday 25 February 2011. I did a news story on the event, and went to one of the police roadblock points at the corner of Nimbin and Stony Shute Road at around lunchtime to interview police. I observed 3 tents for police and other government departments who pulled up cars to check. There were numerous police and their vehicles. ...' Consideration 33Part 4 of the LEPR Act, I note, sets out police powers of search and seizure without having obtained a warrant. Division 5 of Part 4 deals with police powers to stop vehicles, search vehicles and seize things from within vehicles without a warrant, and the erection of roadblocks. 34Section 36, in Division 5, give police officers the power to stop, search and detain a vehicle, without a warrant, where the police officer 'suspects on reasonable grounds' that one or more of the matters prescribed in that section apply. These include where the police officer suspects on reasonable grounds that the vehicle is stolen, the vehicle was, is or may be used in the commission of a 'relevant offence', or there are prohibited plants or prohibited drugs in the vehicle. A 'relevant offence' is defined in section 35 and includes an indictable offence and an offence under the Firearms Act 1996 or the Weapons Prohibition Act 1998. 35Section 37 of Division 5 makes provision for vehicle roadblocks and the powers of police at such a roadblock. It provides: 37 Powers to stop vehicles and erect roadblocks (cfPolice Powers (Vehicles) Act 1998, s 10) (1) For the purposes of this Act, the following are vehicle roadblock powers: (a) the power to establish a roadblock (consisting of any appropriate form of barrier or obstruction preventing or limiting the passage of vehicles) on any specified road, road related area or other public place or school, (b) the power to stop vehicles at a roadblock. (2) A senior police officer may authorise another police officer to exercise any or all of the vehicle roadblock powers in respect of any specified vehicle (or class of vehicles) on a road, road related area or other public place or school if the senior police officer suspects on reasonable grounds that: (a) the vehicle (or a vehicle of the specified class of vehicles) is being, or was, or may have been, used in or in connection with the commission of an indictable offence and the exercise of the powers may provide evidence of the commission of the offence, or (b) circumstances exist on or in the vicinity of that road, road related area, place or school that are likely to give rise to a serious risk to public safety and the exercise of the powers may lessen the risk. (3) A police officer may exercise vehicle roadblock powers without obtaining an authorisation by a senior police officer if the police officer suspects on reasonable grounds that it is necessary to exercise the powers and that the seriousness and urgency of the circumstances require the powers to be exercised without obtaining the authorisation. (4) A police officer who acts under subsection (3) must notify a senior police officer as soon as practicable and obtain an authorisation for any ongoing action. 36Section 40 (also in Division 5) sets out the duration and form of a roadblock authorisation. It provides as follows: 40 Duration and form of roadblock authorisation (cfPolice Powers (Vehicles) Act 1998, s 11) (1) A roadblock authorisation may be given either verbally (including by telephone, radio or other communication device) or in writing (including facsimile). (2) A roadblock authorisation has effect for a period of 6 hours (or such lesser period as may be specified by the senior police officer giving the authorisation). (3) Nothing in this section prevents a senior police officer from giving a further roadblock authorisation in respect of the same vehicle (or class of vehicles) on a road, road related area or other public place or school. 37Section 41 (also in Division 5) provides that a record is to be kept of a roadblock authorisation. It is in the following terms: 41 Record of roadblock authorisation cfPolice Powers (Vehicles) Act 1998, s 12) (1) A senior police officer who gives a roadblock authorisation must: (a) if the authorisation is in writing-specify the following: (i) the date on, and time at, which the authorisation is given, (ii) the vehicle roadblock powers conferred by the authorisation and the indictable offence or risk to public safety in respect of which the authorisation is given, (iii) the road, road related area or other public place or school in respect of which the authorisation is given, (iv) the vehicle (or class of vehicles) in respect of which the authorisation is given, (v) the period of the authorisation if the period is less than 6 hours, or (b) if the authorisation is given verbally-make a record as soon as is reasonably practicable after the giving of the authorisation of the matters referred to in paragraph (a). (2) A failure to comply with subsection (1) does not invalidate a roadblock authorisation. 38As I have explained, the evidence of the respondent is that there was no police roadblock on 25 and 26 February 2011. The evidence of the applicant, Ms Strachan, Ms Jones and Mr Wycombe is that it was a roadblock. The respondent did not seek to cross examine these witnesses. Accordingly, there is no basis not to accept their account of what they saw on the days in question. To some extent, the evidence of Detective Sergeant Fredericks and Constable Craigie, support the evidence of the applicant, Ms Strachan, Ms Jones and Mr Wycombe in that the 2-day operation involved much more than a routine RBT. 39As to what constitutes a roadblock for the purpose of section 37 of the LEPRA Act, was not explained by the respondent, despite a direction to this effect. 40Nevertheless, as I have already explained it is not for the Tribunal to determine whether the police had or had not erected a roadblock on the days in question. The only issue for the Tribunal is to determine whether the respondent held the information requested by the applicant. 41The applicant's request was very specific and subsection 53(1) of the GIPA Act required the respondent to provide him with access to the information requested, if held by it at the time his request was made. 42On the basis of the evidence of Detective Sergeant Fredericks and Constable Craigie, I am satisfied that police did not seek to invoke the powers of section 37 of the LEPR Act when conducting their road side operation, near Nimbin, on 25 and 26 February 2011. Whether this was correct or incorrect is not for the Tribunal to decide. What must be decided is whether the respondent's decision was responsive to the applicant's specific request for information. 43As that request was for access to the authorisation under 37(2) of the LEPR Act, the respondent's obligation under section 53(1) of the GIPA Act was to ascertain whether it held information of this kind. As I have explained, the respondent's position is that an authorisation of this kind does not exist as police had not sought to exercise their roadblock powers on the days in question. In my view, the Tribunal can not take it any further and I am satisfied that the respondent has discharged its onus that it did not hold the requested information (i.e. the 'written authorisation'). However, I note the respondent has provided the applicant with some information about the basis on which the operation was conducted. It is a matter for the applicant to decide what he might wish to do in regard to this additional information. 44Accordingly, for the reasons I have stated, I find that the decision of the respondent is the correct and preferred decision and the appropriate order is to affirm the decision. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2012