De Graaf v Commissioner of Police, New South Wales Police (GD)
[2008] NSWADTAP 2
•16 January 2008
Appeal Panel - Internal
CITATION: De Graaf v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 2 PARTIES: APPELLANT
RESPONDENT
Antonius De Graaf
Commissioner of Police, New South Wales PoliceFILE NUMBER: 079032 HEARING DATES: 10 September 2007 SUBMISSIONS CLOSED: 10 September 2007
DATE OF DECISION:
16 January 2008BEFORE: Hennessy N - Magistrate (Deputy President); Montgomery S - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: amendment of documents - inadequate search - no question of law identified MATTER FOR DECISION: Principal matter DECISION UNDER APPEAL: De Graaf v Commissioner of Police, New South Wales Police [2007] NSW ADT 101 FILE NUMBER UNDER APPEAL: 063330 DATE OF DECISION UNDER APPEAL: 05/01/2007 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 CASES CITED: K v K [2000] NSWSC 1052
S v S [2001] NSWSC 146
Re R [2000] NSWSC 886REPRESENTATION: In person
M Maddox, agentORDERS: 1.The Tribunal’s decision is affirmed.
2.The appeal is dismissed.
REASONS FOR DECISION
Introduction
1 This is an appeal by Mr De Graaf against a decision of the Tribunal relating to a request he made to NSW Police under the Freedom of Information Act 1989 (FOI Act). The appeal was lodged about two weeks out of time but we (the Appeal Panel) allowed it to go ahead. The documents Mr De Graaf requested under the FOI Act relate to a concern he has that NSW Police have confused records relating to him with records relating to another person with a very similar name, but a different date of birth (the “other identity”). Mr De Graaf has a criminal record for some very minor offences whereas the other identity has been convicted of more serious offences.
2 As a result of Mr De Graaf’s FOI application he was given certain documents but he was not satisfied with that response. He said that there were other documents that NSW Police should have provided to him. He also said that NSW Police did not respond to his request that warnings be flagged on his criminal and traffic records so that people seeing those records would not confuse him with the other identity. The Tribunal decided that NSW Police had made adequate attempts to locate all the documents within the scope of Mr De Graaf’s request and that there was no justification for amending any of those documents. Mr De Graaf is entitled to appeal against that decision on a question of law and to request the Appeal Panel’s leave for the appeal to be extended to a review of the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), section 113(2). Mr De Graaf participated in the hearing by phone from Western Australia.
Grounds of Appeal
3 Mr De Graaf’s appeal related mainly to so called “audit reports” requested at points 8 and 9 of his application for documents under the FOI Act:
4 Mr De Graaf also made the following request:
8. The audit report for the dates 15–18/05/1999, from the previous FOI (P10) attached, is incorrect. The matching criteria number 701850260 was not even in existence on this date. Could you please match this report to all of the DE GRAAF ID records, and try again.
9. Sydney Police (Rose Bay) records. I appreciate your department (unsuccessful) enquiry (note Page 11) with the Rose Bay Police for any records. My reason for this request was due to a harassment (6 Police) on the Rose Bay jetty, 1997/98. It is clear that this was due to the wrong record, and little wonder Police couldn’t find it. Could you please refer to the Audit Report, (Both ID’s) around this time, which will identify the details, and forward all these details.
5 It became apparent during the course of hearing the appeal that Mr De Graaf had not identified anything that would amount to a question of law in his written submissions. Rather, his real concern was that NSW Police and the Tribunal had misunderstood his FOI request and had not dealt with the issues that he had intended to raise. Consequently we have treated his appeal as an appeal against the merits of the Tribunal’s decision on the question of whether NSW Police conducted an adequate search for the audit reports and whether the Tribunal should have “amended” the documents in accordance with his request to place flag warnings on relevant records. As we have said, leave is required before an appeal on the merits can proceed.
From the above I suggest it is rather clear to you that these records contain department generated errors. Could you please flag warnings on both the relevant ID records, criminal and/or traffic so that it is clear, not to identify these ID’s with each other. Please supply me with a copy of the result.
6 The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. Relevant case law suggests that leave may be granted where broad questions of administration and policy arise. It is very unlikely that leave will be granted when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed: K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000).
7 Inadequate search. Mr De Graaf’s first concern was that there are documents, which he requested and which NSW Police holds, that were not provided to him. This is known as an “adequacy of search” issue. The Tribunal set out the principles relating to adequacy of search in its decision at [23] to [26]. As we have said, Mr De Graaf did not raise any questions of law relating to these principles. The Tribunal concluded at [28] that:
8 There were three documents or categories of documents which Mr De Graaf told the Appeal Panel he had not been given and which should exist. Firstly, he said he had received a parking ticket which he had overlooked and that there was a warrant issued in NSW in relation to the fine. He said that NSW Police should have a hard copy of the warrant, but if they didn’t there should be an electronic record of it. He said he had a copy of that document from Queensland Police.
The summaries of the searches undertaken as recorded in the determinations and in Sergeant Maddox’s affidavit have addressed all nine points of the applicant’s request. No further possible avenue of inquiry emerged during the evidence given or submissions made during the hearing. I am satisfied that the respondent has made adequate endeavours to locate documents held by it which fall within the terms of the applicant’s request.
9 According to Mr Maddox, representing NSW Police, he searched for the warrant but there was no record of it, and Mr De Graaf did not raise the issue at the Tribunal hearing. He said that while it may be possible to undertake further searches, Mr De Graaf already has a copy of the document from Queensland. In those circumstances he says that there is no justification for extending the appeal to the merits of the Tribunal’s decision on that point. We agree.
10 The second category of documents which Mr De Graaf said that the NSW Police should have provided to him under point 8 of his request were “audit reports” relating to a particular CNI (Criminal Names Index) number. According to Mr Maddox, Mr De Graaf did not say that he wanted audit reports in the hearing before the Tribunal. Mr Maddox says that he conducted a search in response to Mr De Graaf’s request at point 8 but no document was found. He said that it was inappropriate for Mr De Graaf to ask for different audit reports to be done when the matter was on appeal when he did not request them as part of his original application or identify them to the Tribunal. We agree with that submission.
11 The third category of documents relate to point 9 of his FOI request asking for the Audit Report, for 1997 and 1998, relating to an incident involving him and NSW Police at Rose Bay. Mr De Graaf said that he requested source documents, by which he meant audits of when NSW Police downloaded or uploaded certain information.
12 Part of Mr De Graaf’s concern about NSW Police confusing the two identities arose from a search of his criminal history on the NSW Police’s computer system. Mr De Graaf had previously obtained the results of this search from NSW Police. While the search term used to generate the document is not known, the document began with the name of the other identity and contained details such as a CNI number, name and address, sex and date of birth. Underneath the other identity’s name, Mr De Graaf’s details appeared. Underneath those details were the words “End of Exact Matches”. Mr De Graaf said that this means that NSW Police regard his name as an exact match with the other identity’s name. Mr Maddox, representing NSW Police, said that the term “exact matches” refers to the search term that was used to generate the document. It does not mean that the two records relate to the same person. However, Mr Maddox agreed that in a previous FOI request determined by Mr Holmes, Mr De Graaf had been mistakenly advised that a CNI number relating to the other identity was his CNI number. Mr Holmes also gave Mr De Graaf records relating to the other identity in error.
13 Mr De Graaf queried how NSW Police had the other identity’s records on its computer system when the other identity lives in Western Australian and has never, as far as Mr De Graaf is aware, been to NSW. Mr De Graaf assumed that NSW Police had obtained the information in relation to the other identity from a national database and he wanted NSW Police to do an “audit” so that he could find out when and from where the entry in relation to the other identity was downloaded or uploaded on to the NSW computer system. Mr Maddox’s response was that he was under the impression that prior to 1985 NSW was the central repository of criminal records Australia wide. His theory was that that was how the other identity’s name came to be on the NSW computer system. In any event, no “audit” of the kind envisaged by Mr De Graaf had been undertaken in response to his FOI application.
14 The Tribunal relied on the evidence provided by the parties at the hearing including the affidavit of Sergeant Maddox dated 20 October 2006. On the basis of that evidence the Tribunal was satisfied that NSW Police had conducted an adequate search for the documents requested by Mr De Graaf. Nothing Mr De Graaf told us during the course of the hearing on appeal persuades us to re-hear and re-determine that issue.
15 Amendment of documents. Mr De Graaf’s point in relation to this issue was that the Tribunal had ignored the fact that NSW Police had mixed him up with the other identity and that a flag was needed to warn officers using the computer that he was not the other identity. Mr De Graaf wanted the flag placed on the document containing the words “End of Exact Matches”. Section 39 states that:
16 The Tribunal’s conclusion, at [43] was that section 39 relates to amendment of the information contained in the documents, not to a record keeping system as a whole. The Tribunal’s conclusion that a flag of the kind envisaged by Mr De Graaf is not an “amendment” to a record under section 39, is not an unfair or unorthodox conclusion that would justify giving leave to extend the appeal to the merits of that decision. The Tribunal also found that while the document in question contained Mr De Graaf’s personal affairs and was available for use by the NSW Police in connection with its administrative functions, it was not incomplete, incorrect, out of date or misleading. While it is true that Mr Holmes misinterpreted one of the entries in the document as relating to Mr De Graaf, it would require a change to the record keeping system as a whole, not an amendment to a particular document, to reduce the possibility of any confusion in the future. We see nothing in Mr De Graaf’s submissions to justify giving leave to re-open the Tribunal’s consideration of this issue.
A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:
(a) if the document contains information concerning the person’s personal affairs, and
(b) if the information is available for use by the agency in connection with its administrative functions, and
(c) the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading.
Orders
1. The Tribunal’s decision is affirmed.
2. The appeal is dismissed.