Beer v Commissioner of Police, NSW Police Force [2013] NSWADT 243

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Beer v Commissioner of Police, NSW Police Force [2013] NSWADT 243 Hearing dates: On the papers Decision date: 04 October 2013 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The Tribunal affirms the decision under review Catchwords: Government Information Public Access - adequacy of search Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Freedom of Information Act 1989 State Records Act 1998 Cases Cited: AIN and Medical Council of NSW [2013] NSWADT 112 Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Hula v Commissioner of Police NSW Police Force [2013] NSWADT 153 Mizzi v Commissioner of Police NSW Police Force [2013] NSWADT 150 Saggers v Environment Protection Authority [2013] NSWADT 109 Category: Principal judgment Parties: Peter Beer (Applicant) Commissioner of Police, NSW Police Force (Respondent) File Number(s): 123342

REasons for decision

Introduction 1Mr Beer has made an application to the Tribunal to review a decision made by the Commissioner of Police, NSW Police Force (the Agency) on internal review under the Government Information (Public Access) Act 2009 (the GIPA Act) and dated 1 May 2012. Mr Beer had requested access to an interview report relating to an interview of him by two police officers, concerning alleged indecent exposure, at Fairfield Police Station in June or July 1972. He also wanted the names and ages of the officers involved, a copy of "so-called" witness statements and the name of "the accuser." 2The internal review confirmed the initial decision made by the Agency that the information was not held by the Agency. 3Mr Beer then sought review of that decision by the Office of the Information Commissioner. In a review report dated 2 November 2012 the Office of the Information Commissioner determined that - ...our office agrees with Police that it does not hold the information you applied for. This is because in our view Police Conducted reasonable searches for the information and could not locate any records relating to your application. 4On 3 December 2012 Mr Beer applied to this Tribunal to review the decision that the Agency does not hold the information he seeks. Following planning meetings held in January and March of 2013 the parties filed the evidence and submissions they sought to rely on, and agreed that the application should be determined on the papers. 5After submissions closed Mr Beer wrote to the Tribunal seeking a hearing so that he could lead evidence to prove that Police at Fairfield Police Station had in fact interviewed him in June or July of 1972. The trigger for this request was a submission by the Agency that there was no evidence that the interview occurred. The Agency filed submissions in response to this request, arguing that there was no need for a hearing. 6I refused Mr Beer's application for a hearing. I did so because the issue for determination in this case is whether the Agency has conducted reasonable searches for the information Mr Beer seeks. Determining whether or not the interview occurred would not necessarily lead to a determination of that issue. Irrespective of whether or not the interview occurred, the issue for determination is whether the Agency has conducted reasonable searches. I was and remain of the view that this is a matter that can be adequately determined on the papers in the absence of the parties.