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

1. Mr 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."

1. The internal review confirmed the initial decision made by the Agency that the information was not held by the Agency.

1. Mr 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.

1. On 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.

1. After 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.

1. I 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.

Material before the Tribunal

1. In making this determination the Tribunal has considered the following material:

• The statement Senior Sergeant Darren Brand dated 19 March 2013. He is the coordinator of the Agency's Information Access and Subpoena Unit (IASU). This details the searches undertaken by the Agency to locate the information sought by Mr Beer.
• NSW Police Functional Retention and Disposal Authority: DA221, approved 16 August 2006
• The Agency's submissions filed on 19 March 2013, 16 May 2013 and29 May 2013.
• Mr Beer's submission contained in his letter of 5 February 2013 and his submissions filed on 1 May 2013.

1. Section 104(1) of the GIPA Act provides that the Information Commissioner has a right to appear and be heard in relation to reviews by the Tribunal. The Information Commissioner has not exercised that right in this case.

The Government Information (Public Access) Act 2009

1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(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.

1. 'Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.

1. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9).

1. With respect to other government information, the Act establishes a principle that there is public interest in favour of disclosure (s 12(1)).

1. Section 53 sets out the extent of an agency's obligation to search for the information for which access has been requested -

(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.

1. An access application is to be determined in accordance with s 58. Relevantly this provides -

(1) An agency decides an access application for government information by:

(a) ...

(b) deciding that the information is not held by the agency, or

(c) ....

1. In exercising functions under the Act s 3(2) instructs that -

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.

1. Section 80 sets out a series of decisions that are reviewable decisions under the Act. Relevantly it provides -

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

(a)...

(e)a decision that government information is not held by the agency,

...

1. Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). The internal review is to be completed within 15 working days of receipt (s 86), failing which the agency is deemed to have made the original decision again (s 86(5)). A decision made on internal review is itself a reviewable decision, although it is not possible to seek an internal review of an internal review (s 88).

1. Secondly, an access applicant who is aggrieved by a reviewable decision may seek review of the decision by the Information Commissioner under s 89. Where the person aggrieved is not the access applicant he or she must first seek an internal review (s 89(2)). A review by the Information Commissioner must be sought within 8 weeks of notice of decision being given to the access applicant. The Information Commissioner may then make a recommendation to the agency (s 92) including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93).

1. Thirdly, a person aggrieved may seek a review by the Tribunal (s 100). When this provision is read with s 38 of the Administrative Decisions Tribunal Act 1997, they confer jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."

1. Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).

1. In any review of a reviewable decision s 105 places the burden of justifying the decision on the agency concerned. It provides -

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

(3)If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

1. The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drakev Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

Consideration

1. The nature of the Tribunal's role when reviewing a determination that an agency does not hold information under the GIPA Act has been considered in a number of cases. In Camilleri v Commissioner of Police, New South Wales Police Force[[2012] NSWADT 5 Judicial Member N Isenberg wrote -

11 What constitutes a sufficient search has been considered by the Tribunal in a number of cases. In Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18], the President said that the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning ( 1994) 1 QAR 464, should be adopted in addressing sufficiency of search issues. In Shepherd the Information Commissioner said at [19] that there were two questions for consideration were:

'(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.'

12This approach has been followed by the Tribunal in a number of cases such as DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 ( Patsalis ); Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35; O'Hara v North Sydney Council [2005] NSWADT 100 (O'Hara ); and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.

13It is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69].

14With regard to the second part of the test set out in Shepherd, President O'Connor considered the key factors in assessing whether a sufficient search had been carried out in Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 at [30]. These factors included, relevantly, the ability to retrieve any documents that are the subject of the request. What constitutes a sufficient search will vary with the circumstances.

15In 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, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate: see also O'Hara . In Patsalis, the documents to which the applicant sought access had existed but were subsequently lost. Numerous searches were conducted but failed to find them and, ultimately, his Honour concluded at [59] that 'it would be a waste of time to ask the agency to do any more searches'.

1. While the decision in Camilleri was set aside in part on appeal, Judicial Member N Isenberg's comments with respect to adequacy of search were not the subject of that appeal: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19. They retain their force and have been followed in a number of cases: Turner v Corrective Services NSW [2013] NSWADT 39;Saggers v Environment Protection Authority [2013] NSWADT 109; AIN and Medical Council of NSW [2013] NSWADT 112; Mizzi v Commissioner of Police NSW Police Force [2013] NSWADT 150 and Hula v Commissioner of Police NSW Police Force [2013] NSWADT 153.

Are there reasonable grounds to believe the information exists?

1. Mr Beer is firm in his recollection that Police at Fairfield Police Station interviewed him in June or July of 1972 in regard to an alleged offence. Those events took place more than 40 years ago. He is able to recall the name of one of the Police officers who interviewed him, and the names of the alleged victims and their parents. Given the effluxion of time, the difficulty that has been encountered in locating records and information relating to the interview is not surprising. It does not persuade me that the interview did not occur.

1. I note that Mr Beer has also asserted that he believes that he has been under surveillance by unidentified or retired police officers since 1972. This has occurred as recently as 10 January 2010, when he took a photograph of a man he asserts was watching him. Mr Beer believes that this surveillance is associated with the officers who interviewed him and represents continued police action with respect to the alleged offences in 1972. He showed that photograph to the Agency's representative at a planning meeting.

1. He has made a complaint about this conduct to the NSW Police Integrity Commission, who referred it to the Internal Investigations Unit. They did not deal with the complaint as the police officer was not identified. Mr Beer relied on this surveillance to argue that the events about which he sought information were current, and not 40 years past.

1. I do not accept this argument for a number of reasons. First there is no evidence, other than Mr Beer's assertions, that he is under surveillance by past or present NSW Police. The photograph did not demonstrate the identity of the individual pictured, or prove an association between the NSW Police Force and that individual, or that any such surveillance relates to the 1972 interview. Secondly, irrespective of the surveillance issue, the fact remain that the information he is seeking is more than 40 years old.

1. I am however, satisfied that there are reasonable grounds for believing that the information Mr Beer seeks existed and was information held by the Agency.

Have the searches undertaken by the Agency been reasonable in the circumstances?

1. Senior Sergeant Brand's evidence reveals that the Agency has undertaken the following unsuccessful searches with respect to the information sought:

• A search of the Computerised Operational Policing System (COPS).
• A search of the Fairfield Police Stations Records of Occurrences and Charge Books from 26 April 1972 to 2 September 1972. The charge book search was later expanded to include Fairfield Charge Books held by State Records for the period 17 March 1972 to 8 January1973, and occurrence pads from 1 January 1972 to 31 December 1972.
• A search of the Stanmore Records Repository , where Fairfield records are held, using TRIM. TRIM is the official records and document management system used by the Agency.

1. The searches were conducted using the Mr Beer's name and those of the alleged victims as search terms. Some of those expanded searches were made at the request of the Information Commissioner.

1. The Agency also relied on NSW Police Functional Retention and Disposal Authority: DA221, approved 16 August 2006. This was issued under s 21(2) of the State Records Act 1998 and has been approved by the State Records Authority under s 21(3) of that Act. Relevantly s 21 of that Act provides -

(1)A person must not:

(a)abandon or dispose of a State record, or

(b)transfer or offer to transfer, or be a party to arrangements for the transfer of, the possession or ownership of a State record, or

(c)take or send a State record out of New South Wales, or

(d)damage or alter a State record, or

(e)neglect a State record in a way that causes or is likely to cause damage to the State record.

Maximum penalty: 50 penalty units.

(2)None of the following is a contravention of this section:

(a)...

(c)anything done by or with the permission of the Authority or in accordance with any practice or procedure approved by the Authority either generally or in a particular case or class of cases (including any practice or procedure approved of under any standards and codes of best practice for records management formulated by the Authority),

..

.

(3)The Authority must not do, or give permission or approval for or with respect to the doing of, anything referred to in subsection (1) except with the approval of the Board given either generally or in a particular case or class of cases.

1. DA 221 authorises the destruction or disposal of state records. Investigation case files with respect to offences of indecent exposure are dealt with at 13.2.6. It requires that they be retained for a minimum of 10 years after the last action, and then destroyed.

1. I accept Senior Sergeant Brand's evidence with respect to the searches undertaken by the Agency in response to Mr Beer's request. I also accept that under the State Records Act1998 and DA221 the Agency is not obliged to keep an investigation file with respect to an alleged indecent exposure for more than 10 years and may then destroy them.

1. Mr Beer argues that what will constitute a reasonable search will depend on the facts of each case. In the circumstances of his case he argues that a reasonable search requires a similar effort to that which the Police make when conducting an investigation of their own.

1. He submits that decisions made as to adequacy of search under the Freedom of Information Act1989 should have no application under the GIPA Act, and that reliance on them is an attempt to restore a "disclosure avoidance culture."

1. He asserts that he has a right under the GIPA Act to know what happened to the documents containing the information he sought. He submitted that this included a right to know -

• whether they had been destroyed, and, if so, when and by whom;
• If the documents never existed, why?
• If they have been transferred to another agency.

1. The right given by the GIPA Act is a right to be provided with access to information in accordance the Act, unless there is an overriding public interest against disclosure of the information: s 8. It does not extend to confer a right on access applicants to know why documents do not exist, or if documents have been destroyed, by whom and when they were destroyed.

1. An Agency's obligation to search for information sought in an access application is set out in s 53 and extends to information held by the Agency when the access application is made. Section 45 makes specific provision for the consent transfer of an access application to another agency, where the Agency does not hold the information but there are reasonable grounds for believing it is held by another agency.

1. As already noted the obligation on an agency is to take reasonable action to locate in the information in the circumstances of the individual case. In doing so an agency is obliged to make searches using any resources reasonably available to it. What constitutes reasonable action will vary in accordance with factors such as the nature of the information, the Agency's systems of storing such information, how those systems may be and have been searched, and whether the information is of a kind that the Agency is under an obligation to retain. This list is not exhaustive.

1. In the present case I am satisfied that the Agency has taken reasonable action to search for information relevant to Mr Beer's request in COPS, in TRIM and in the physical records it holds from Fairfield Police Station relating to the year 1972. Those searches have been made looking for the names of Mr Beer and those he identified as the alleged victims. If the information exists in those sources, I accept that those searches should have located it. I also accept that the Agency is not required to retain its investigation file with respect to alleged offences of indecent exposure, and that it is probable that those files no longer exist.

1. In all the circumstances of the case I am satisfied that the searches efforts made by the Agency to locate the information sought by Mr Beer have been reasonable in all the circumstances of the case.

1. As a result the correct and preferable decision in this case is to affirm the decision under review.

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Decision last updated: 31 October 2013