Cheney v Commissioner of Police, NSW Police

[2006] NSWADT 169

CITATION:	Cheney v Commissioner of Police, NSW Police [2006] NSWADT 169
DIVISION:	General Division
PARTIES:	APPLICANT Roger David Cheney RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053416
HEARING DATES:	4/04/2006
SUBMISSIONS CLOSED:	04/04/2006
EXTEMPORE DECISION DATE:	04/04/2006
DATE OF DECISION:	06/07/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
REPRESENTATION:	APPLICANT In person RESPONDENT W Pisani, agent
ORDERS:	Decision under review is affirmed

1 This is an application for review of a decision under the Freedom of Information Act 1989 ("the Act"). Mr Cheney applied to the NSW Police for personal information under the Act as follows:

"DNA Results in the matter of Roger David Cheney alleged sexual assault of Allison Jean Mitton 8 December 1993. Tests carried out by Biologist Robert Goltz … also all relevant documentation of Robert Goltz."

2 In response to Mr Cheney’s FOI application, the Commissioner’s delegate advised that he had received advice that the Division of Analytical Laboratories of the former Western Sydney Area Health Service did not carry out any DNA tests on the case and therefore do not have any DNA test results. He also indicated that Mr Cheney had been given all the other results of tests administered by Dr Robert Goltz in the relevant cases.

3 Mr Cheney applied for an internal review of that determination and further material was identified that was considered to fall within the scope of the FOI application. Mr Cheney was given all the material that was located in this review process.

4 Mr Cheney applied for an external review of that determination by the Tribunal. He is concerned that the Police hold documents that have not been provided. He bases this concern on advice that he was given by an officer of the Western Sydney Area Health Service which indicated that NSW Police held documents relating to DNA testing.

5 The matter was heard and determined on 4 April 2006. On that date I affirmed the decision under review. Mr Cheney has applied for reasons for my decision. These reasons are in response to that request.

6 The Commissioner relied on affidavit evidence of Sergeant Timothy Bayly of Port Macquarie Police Station. Sergeant Bayly stated that he was asked to locate documentation that fell within the parameters of Mr Cheney’s FOI application. As a result of his enquiries he located some documentation and this was passed on to Ms Rebecca Burdick of Legal Services, the legal officer with carriage of the matter. He subsequently undertook a further inquiry and located a box of material that he thought might relate to Mr Cheney. He forwarded it directly to Sergeant Mark Maddox, the co-ordinator of the Freedom of Information Unit.

7 Sergeant Bayly stated that he is satisfied that there are no other locations within the Mid North Coast Local Area Command likely to hold any further documents that relate to Mr Cheney.

8 Sergeant Maddox also provided affidavit evidence and appeared at the hearing and was cross-examined. Sergeant Maddox gave evidence of the attempt that he made to locate further material that might fall within the scope of Mr Cheney’s FOI application. He stated that he provided Mr Cheney a copy of the material that was located as a part of his inquiry. The only deletions were personal information of the victim.

9 Sergeant Maddox stated that he made enquiries with an officer of the NSW Police Archives and was advised that there are no documents relating to Mr Cheney in NSW Police Archives. He also stated that he inspected the contents of the box of material that Sergeant Bayly sent him and that he was unable to locate any documents revealing results of DNA testing.

10 Sergeant Maddox stated that after thoroughly reviewing this application he is satisfied that NSW Police do not hold any records of DNA testing as Mr Cheney has claimed. I further stated that he is satisfied that Mr Cheney was incorrectly informed that it holds such documents. Sergeant Maddox restated this view at the hearing on 4 April 2006.

11 The issue is whether or not the police have conducted a search that is sufficient to satisfy me that there are no other documents that fall within the scope of Mr Cheney’s Freedom of Information request. On the evidence provided on behalf of the Commissioner I am satisfied that the search was sufficient.

12 I do not think that the police should be required to carry out any further search in the matter. Accordingly it is my view that the decision that has been made is the correct and preferable one and therefore I will affirm that decision.

Orders

The decision under review is affirmed.