DK v Commisioner of Police, New South Wales Police Service
[2002] NSWADT 172
•09/18/2002
CITATION: DK -v- Commisioner of Police, New South Wales Police Service [2002] NSWADT 172 DIVISION: General Division PARTIES: APPLICANT
DK
RESPONDENT
Commissioner of Police, New South Wales Police ServiceFILE NUMBER: 023060 HEARING DATES: 21/08/2002, 22/08/2002 SUBMISSIONS CLOSED: 08/22/2002 DATE OF DECISION:
09/18/2002BEFORE: O'Connor K - DCJ (President) APPLICATION: amendment of documents - Freedom of Information Act - amendment of documents MATTER FOR DECISION: Principal matter LEGISLATION CITED: Crimes Legislation Amendment (Police and Public Safety) Act 1998
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989
Freedom of Information Act 1989 (ACT)
Freedom of Information Act 1992 (Qld)
Trade Practices Act 1974 (Cth)CASES CITED: Bennett v University of New England, (unreported 7 August 1991, Dist Ct)
Morgan -v- Director-General, Department of Education and Training & Minister for Education and Training [1999] NSWADT 91
Morgan -v- Director-General, Department of Education and Training & anor (GD) [2000] NSWADTAP 3)
Re Cox and Department of Defence 20 ALD 499
Re Warren and the Department of Defence (AAT, 22 December 1993, File No N92/621, unreported)
Director General, Department of Community Services -v- S [2000] NSWADTAP 27
Re Corbett and Australian Federal Police 5 AAR 291
Re Leverett (1985) 8 ALN N135
Re Resch and Department of Veterans' Affairs 9 ALD 380
Re Jacob v Department of Defence 15 ALD 645
RR v Department of Army (1980) 482 F Supp 770
A and Director of Family Services [1998] ACTAAT 249 (8 April 1998)
Hayward-Brown -v- Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46
Commissioner of Police v District Court (Perrin's case) (1993) 31 NSWLR 607 (CA)
Doelle v Legal Aid Office, Decision No 93005 (24 November 1993)REPRESENTATION: APPLICANT
In person
RESPONDENT
J Tunks, solicitorORDERS: The application is dismissed.
1 This application for review is made under s 53 of Freedom of Information Act 1989 (FOIA). The applicant has applied for review of a determination by the respondent agency (‘the agency’) to refuse to make certain amendments to records held by the agency relating to his personal affairs. The request for amendment was made under s 39.
2 The applicant was granted access in July 2001 to numerous documents held by the agency. He made his application for amendment by way of a letter dated 2 January 2002. He asked for the text of several records to be expunged or changed on the basis that they were ‘incorrect’ or ‘misleading’.
3 Section 39 provides:
4 The agency issued its determination on 20 January 2002, refusing to make a number of the requested changes, and offering instead to allow the applicant to add a statement to the record, by way of a notation, as provided for by s 46 of FOIA. Notations must be given to any person or body to whom a record is disclosed: s 46(3). The applicant sought internal review of the determination. It was substantially confirmed by the determination issued 25 February 2002. The applicant lodged his application for review with the Tribunal on 13 March 2002.
‘ 39. Right to apply for amendment of agencies' records
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) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading.’
5 Following planning meetings and various further orders, the scope of the dispute now involves 4 documents that were the subject of the determination under review. In addition there are 2 other documents that were the subject of a separate but similar determination that are, with the agreement of the parties, dealt with by this decision.
6 The 6 documents that are the subject of this decision are all connected with the investigation of a complaint by the applicant about the way police officers dealt with him and a friend, Mr B, on the night of […]. They were referred to in these proceedings as Documents K, L, M, N, P and Q. Documents P and Q were the subject of the separate but similar determination.
7 The applicant's friend, Mr B, had also filed an application for review with the Tribunal in relation to the same documents (with Document R being a document transferred to this matter for determination). It was expressed in similar terms to the applicant’s application for review. It was listed for hearing at the same time. Mr B did not attend the hearing, and his application was dismissed for want of prosecution. One consequence of Mr B’s absence from the proceedings is that the only evidence contradicting that of the police as to what occurred on the night in question is that of the applicant.
8 The agency agrees that 6 documents in issue all contain material relating to the ‘personal affairs’ of the applicant, and are connected with the administrative functions of the agency (in this instance, the internal investigation of complaints against officers), and accordingly are covered by s 39. The Tribunal agrees.
9 The applicant’s application for amendment must comply with s 40, and in particular,
10 The letter of 2 January 2002 and the material attached to the application for review clearly set out the amendments sought.
‘(d) shall specify the respects in which the applicant claims the information contained in the document to be incomplete, incorrect, out of date or misleading’.
11 In this instance the agency has refused to amend its records, relying on grounds (a) and (b) of s 44, which provide:
The Documents in Issue
‘An agency may refuse to amend its records in accordance with an application:
(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or
(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect …’.
12 The history of the agency’s handling of the applicant’s application is set out in the principal affidavit sworn by Insp Robert Koopman, Senior Manager, Legal and Compliance Unit under which falls responsibility for handling FOI matters (Ex A). The six documents that contain the information to which the amendment application now relates have for convenience been excised from the annexures to the affidavit, and comprise Ex C in the proceedings.
13 The six documents are referred to below by reference to their annexure letter in the principal affidavit, as follows:
14 Document K: Report for the purpose of investigation of a complaint by the applicant and Mr B from Constable J M Branwhite dated 14 November 1999 to A/Inspector J F Rayment in respect of attendance with Constable Duggan at […] Oxford Street, Darlinghurst at 11.55 pm, […].
15 Document L: Report for the same purpose from Constable M Duggan dated 2 November 1999 to A/Inspector Rayment in relation to same attendance in Oxford Street. Constable Duggan returned to Surry Hills police station, and observed that the applicant and Mr B were there having a discussion with Inspector Hall. His report included an account of his observations of their conduct at Surry Hills, and the information that he gave later to Inspector Hall.
16 Document M: Report for the same purpose from Sergeant V Carrabs dated 2 November 1999 to A/Inspector Rayment in relation to the complainants’ attendance at Surry Hills Police Station about 12.15 am, […].
17 Document N: Report for the same purpose from Inspector G F Hall dated 4 November 1999 to A/Inspector Rayment in relation to the same attendance at Surry Hills Police Station.
18 Document P: Report dated 2 December 1999 summarising his investigation with findings and recommendation to his Commander from A/Inspector Rayment.
19 Document Q: Entry under heading ‘New South Wales Police Service Intelligence Information System: Information Report Summary’ recorded in the COPS system and number I 8631908 submitted by Constable R H McDonald, Rose Bay Police Station, reporting the attendance by the complainants at the Rose Bay station at about 12.45 am, […].
20 Apart from Document Q (the COPS system entry) the documents in issue were created after the applicant and Mr B lodged a complaint regarding the conduct of police with whom they had had contact overnight on […].
21 A/Inspector Rayment’s final report recommended no further action, and was accepted by his Commander.
Some Observations as to the Applicable Law
22 In this case the parties agreed that the amendments sought by the applicant all alleged that the information in issue was ‘incorrect’ or ‘misleading’; as distinct from being ‘out of date’ or ‘incomplete’.
23 ‘Incorrect’: The adjective ‘correct’ has the meaning 'conforming to fact or truth, free from error, accurate': Macquarie Dictionary and Thesaurus (1991), 99. The verb 'mislead', from which the adjective 'misleading' is derived has the meaning 'to lead or guide wrongly; lead astray' or 'to lead into error of conduct, thought or judgment' (ibid. 255).
24 ‘Misleading’ is a word in common use, and derives from the verb ‘mislead’ – ‘to lead astray’ (Macquarie Dictionary, 1st ed 1981). The term is often used as part of a spectrum of forms of error, with ‘deceptive’ and ‘false’ as higher order categories. A well known instance is found in the Trade Practices Act 1974 (Comm.), s 52(1) which provides:
25 Dunford DCJ (as he then was) dealt briefly with the meaning of these terms in Bennett v University of New England , (unreported 7 August 1991, Dist Ct) at p 14:
‘ (1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.’
26 I dealt in Morgan -v- Director-General, Department of Education and Training & Minister for Education and Training [1999] NSWADT 91 (decision set aside on other grounds, Morgan -v- Director-General, Department of Education and Training & anor (GD) [2000] NSWADTAP 3) with the approach to be taken to amendment applications, as follows:
‘Without going into detail, I am satisfied that 'incorrect' includes anything that is not in accordance with fact or is erroneous or inaccurate, and that 'misleading' includes giving wrong impression.'
27 One of the questions that typically arises in amendment of records cases is at what point a genuinely expressed opinion should be interfered with. In the present case the authors of the documents express a number of opinions about the conduct of the applicant and his motives. This issue was dealt with by the Appeal Panel in Director General, Department of Community Services -v- S [2000] NSWADTAP 27:
‘ Role of Tribunal in dealing with Amendment Application
24 This case raises the issue of the extent to which it is appropriate for an applicant to seek through the mechanism of a FOI amendment request to revisit the events recorded in documents, to have the Tribunal make findings on material questions of fact as to what precisely occurred and have the records amended as appropriate in light of its findings.
25 The correction of statements relating to simple objective facts, such as name, address, date of birth and the like, does not represent a difficult task for the processes of inquiry of a tribunal.
26 But the position is more difficult where the dispute relates to differing versions of events, where there the occurrence of the events is not an issue. …
27 One decision providing guidance on the course of inquiry to be pursued by a tribunal in amendment of record cases is Re Cox and Department of Defence 20 ALD 499 by Todd DP where he said:
28 A case which illustrates some of the difficulties facing a tribunal in dealing with an amendment of records is Re Warren and the Department of Defence (AAT, 22 December 1993, File No N92/621, unreported).
"What I now proceed to do is to consider each document separately in the light of the evidence which I have set out and to state whether any or all should be found to be incomplete, incorrect, out-of-date or misleading, and whether any notation should be added to the record accordingly. ... These problems arise because the applicant has been able to refer to other evidence sufficiently cogent to enable the tribunal, and indeed in my opinion to require it, to find that the subject documents are either incomplete, incorrect, out-of-date or misleading, or a combination or one or other of these criteria, unless that additional evidence is placed on the record and cautionary notations placed on the subject documents. This is partly to be achieved by the making of individual notations and partly by placing on the relevant files copies of the Decision herein and of these Reasons for Decision ...".
29 In that case the applicant who became an officer in the Australian Army in 1966 resigned his commission in 1981 when his superior officers found that his response to a notice to show cause why his commission should not be terminated was not acceptable. Subsequently he obtained access to the internal records that had given rise to the disciplinary action against him. He disputed the contents of these records which included material of which he had been previously unaware. The matter reached the Commonwealth Administrative Appeals Tribunal ('the AAT') in 1993, some 12 years after the official records had been created. The AAT noted that the case was "in many ways a tragic one as it concerns the destruction of a career" (p2). The AAT reviewed the records and received evidence over six days.
30 While the AAT rejected the applicant's submission that there had been a conspiracy against him involving three senior officers, it made a number of adverse findings in relation to particular matters.
31 For example, at one stage in the disciplinary process the applicant had sought to use an internal grievance procedure known as a 'redress of wrongs' procedure. Advice was given to the relevant superior officer as to the applicant's rights in this regard. It was found to be inaccurate and misleading by the AAT, giving rise to an order that an annotation be placed with the relevant memorandum explaining the deficiencies of the advice.
32 As to opinions about the applicant's ability made by two senior officers, the AAT did not intervene. It made the following observations:
33 But in the case of the comments of a third officer it had a different view. It criticised the 'extraordinary comments' that the applicant's 'reputation is so poor that he would not receive a terribly objective assessment'. It noted that 'no explanation' was given for these comments, and they can be characterised as misleading and incomplete. The AAT directed a notation be placed with the comments noting that they were not supported by any evidence.
"The comments by [the officers] are not what the applicant would desire but they are opinions which were held by those officers at the time. They should not be deleted, neither is there sufficient evidence adduced to persuade the Tribunal that the factual bases for them were incorrect so that some annotation should be made upon the document in question."
34 In relation to another item in dispute it noted that the applicant had not been given at the time a fair opportunity to read and make comments on an adverse internal report about him. The AAT stated at p38:
35 The AAT then addressed the practical difficulties of revisiting events that were long past, at pp 38-39:
"It is clear that by forwarding this correspondence to [a commanding officer] without the applicant being able to sight, initial and make representations upon it, the applicant was improperly deprived of a chance that was fairly open to him to make his own submissions as to why the report ought not to have been accepted at face value."
36 Ultimately the AAT directed that at six points in the official records substantial notations should be incorporated to overcome incorrect or misleading statements. In one instance the AAT found that an adverse comment was unsupported by any evidence. In four instances it found contents to be incomplete and misleading. In one instance it found contents to be incorrect. In some of the instances mentioned, it also found that there had been failures to follow proper procedures or to accord a fair opportunity to the applicant to respond to material.’
"The Tribunal has some difficulty in dealing with Item 4. The applicant has challenged its factual basis, yet to resolve that question would require a lengthy hearing with witnesses attempting to recollect events some 13 years ago. Clearly the Administrative Appeals Tribunal has neither the time not the resources to undertake this task, nor should the Agency have to come before the Tribunal and be put to the expense of producing witnesses and seeking to rebut the minutiae of events which are peripheral at best and long past.
The best the Tribunal can do is to take a broad butt approach and where incompleteness, error, or outdated or misleading information has been demonstrated, act to rectify same."
See also Cossins, Annotated Freedom of Information Act New South Wales (LBC 1997), 179.
‘35 A genuinely held opinion can nevertheless be a misleading one, and so misleading that it may as a matter of good administration and in fairness to its subject be necessary to remove it from circulation. The case-law, appropriately, reflects care on the part of courts and tribunals in approaching the question of whether opinions should be revised or changed by way of formal amendment. The Tribunal below at [25] and [27] cited several cases which acknowledge these propositions: see, for example, Re Corbett and Australian Federal Police 5 AAR 291, Re Leverett (1985) 8 ALN N135, Re Resch and Department of Veterans' Affairs 9 ALD 380; Re Cox and Department of Defence 20 ALD 499, Re Jacob v Department of Defence 15 ALD 645, and the leading United States case frequently referred to in this context, RR v Department of Army (1980) 482 F Supp 770. See also Re Warren and the Department of Defence (Cth AAT, 22 December 1993 N92/621).
36 It is also important to differentiate between on the one hand expressions of opinion where the opinion is based on the possession of special expertise, such as applies in the case of a medical practitioner making a diagnosis, and on the other hand a situation where the opinion derives from a conclusion as to fact where no special expertise is involved. This is a case of the latter type. See generally A and Director of Family Services [1998] ACTAAT 249 (8 April 1998) esp at [35]. This case was one where the Tribunal found that an initial assessment gave misleading picture as to claims of physical injury and physical abuse towards a boy by his foster family. In that case the Tribunal concluded that it was sufficient that appropriate notations be placed on the documents, … .
37 The cases properly distinguish situations where there is a factual foundation for an opinion which is expressed and those where there is none. They also properly distinguish those cases where the opinion has followed from a process of assessing and resolving conflicting versions of the facts. …’
28 In Hayward-Brown -v- Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46 the Tribunal (Hennessy DP) noted the agency’s discretion to refuse to amend (s 44) may be exercised where it is satisfied that the records are not incomplete, inaccurate, out of date or misleading ‘in a material respect’. This qualification provides the agency with some ability to avoid interfering with records in relation to relatively trivial or marginal disputes. The Tribunal said:
29 I dealt in Morgan with the question of the onus borne by agencies in relation to FOI determinations, including determinations to refuse to amend personal records, as follows.
‘48 Even if I accept for the purposes of this analysis that these descriptions are incorrect or misleading, it is relevant to consider whether they are incorrect or misleading in a material respect (s 44(a) - emphasis added). "Material" is defined in the Macquarie Dictionary (3rd edition, The Macquarie Library, 1997) as "of substantial import or much consequence". While the inclusion of the words "hostile" and "chronic" paint a more extreme picture of the applicant's behaviour than would otherwise be the case, they do not of "substantial import" or "much consequence". They relate to a question of degree only, not to any material considerations.’
30 Accordingly, it is necessary for the applicant for amendment to place before the agency sufficient material to cause it to reconsider the adequacy of the statements placed in issue as incorrect, misleading, incomplete or out of date.
‘ Burden of Proof
37 FOI legislation seeks to promote the disclosure of information to citizens: see generally Commissioner of Police v District Court (Perrin's case) (1993) 31 NSWLR 607 (CA). It follows that in proceedings before the Tribunal Ministers and agencies should bear the burden in justifying non-disclosure. This issue is addressed directly by the Act in s 61:
This is also the position in other jurisdictions (see e.g. Freedom of Information Act 1982 (Cth) s 61, Freedom of Information Act 1989 (ACT) s 71 and Freedom of Information Act 1992 (Qld) s 81, each of which expressly place the onus on the agency or Minister).
"In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister."
38 This general position does not distinguish between determinations relating to access and those relating to amendment. Although the ultimate burden of establishing justification for a determination rests with the agency or Minister, where the agency or Minister has released the document and an applicant seeks amendment of it, it seems appropriate that the applicant bears an initial or preliminary burden to provide evidence in support of the application for amendment. I agree with the approach taken by the Information Commissioner of Queensland in Doelle v Legal Aid Office, Decision No 93005 (24 November 1993) at [18]:
39 This question has also been examined by the Australian Law Reform Commission in its report: Open Government: A Review of the Federal Freedom of Information Act 1982 (1995). At [12.22] it observed:
"Pursuant to s 81 of the FOI Act, [the agency] has the onus of establishing that its decision is justified. ... [W]hile on a review ... the ultimate legal onus remains on [the agency], a practical or evidentiary onus shifts to [the applicant] to provide evidence to support his entitlement to relief ... on the basis that the documents in issue contain information that is inaccurate, incomplete, out-of-date or misleading."
(These observations were made in the context of a discussion of whether amendment applications might have the potential to divert unreasonably agency resources.)’
"While an agency has a duty to consider an application for amendment, the Review considers that the onus of satisfying the agency that there are grounds for amendment rests largely on the applicant. The agency may make inquiries and take action to satisfy itself about those grounds, but it should only be required to do whatever is reasonable in the circumstances. If an applicant seeks review of a decision refusing to amend a document the agency must justify its decision. It does not have to prove that its record is accurate."
Contents Placed in Issue by the Applicant
31 The applicant contested numerous passages in the document. My count was as follows: two passages of Document K (Branwhite report); 4 passages in Document L (Duggan report); 6 passages in Document M (Carrabs report); 9 passages in Document N (Hall report); and 4 passages in Document Q (McDonald entry). He also contests Document P (the Rayment executive report), but acknowledged that his challenge to the contents of Document P could only succeed to the extent that the underlying reports on which it was based are shown to be defective. He acknowledged that Document P gave a fair summary of the underlying reports.
32 Among the statements and descriptions which he claims are incorrect or misleading are the following.
33 At Oxford Street Constable Branwhite reported that the applicant ‘stated that he was a solicitor’ (Document K, Branwhite). Constable Duggan referred to him (Document L) as being on the night of the incident ‘argumentative and unco-operative’; and said ‘I believe that he had a premeditated plan to complain against police’. Sergeant Carrabs said (Document M) – ‘They were clearly motivated in seeking revenge for having to comply with a lawful direction by police to move on.’ He said: ‘For a long time I stood and watched as these two persons questioned and prodded the Inspector. I felt that they were clearly taking advantage of his good nature and diplomatic manner.’ Sergeant Carrabs said of the applicant: ‘He surgically worded his sentences to cut deep into the areas of insult and debasement.’
34 Inspector Hall described Mr B’s conduct in Oxford Street on the basis of ‘statements and admissions’ made by the applicant, as follows: ‘He [Mr B] was yelling at and abusing other male persons as they entered the premises.’ He continued: ‘[T]he applicant referred to a particular male entering the premises as a male prostitute.’ In referring to their exchanges with him about the police powers legislation, Inspector Hall described the two men as ‘uninterested’ in his explanations, and noted that the applicant was ‘well versed in legal matters and the police operational system such as COPS’. He said in his report: ‘This manner of speaking at times was aggressive and belittling in its content, bordering on intimidation.’ He said that when leaving the applicant had said ‘to both Sergeant Carrabs and myself we’d lose our jobs, enjoy the paperwork.’
35 He noted that when Sergeant Carrabs intervened, and said that their complaint was merely a means of deterring police from performing their duties, the applicant ‘immediately took exception to Sergeant Carrabs and demanded his name.’ Inspector Hall referred to the ‘insistent nature and caustic and sarcastic comments from both complainants’. He stated: ‘The actions and demeanour of both complainants was insulting and disruptive.’
36 Constable McDonald’s COPS system entry records a similar experience of the two men. It states that both men ‘were extremely argumentative and stated that they were going to ‘have the Police Officers jobs’ and that the Police Officer [sic] would be lucky if they were still employed by the Police Service after they had finished with them.’ The entry states that the applicant stated that ‘he has a Law degree and therefore knows his rights’.
37 I have not repeated all of the texts placed in issue by the applicant. The above represents a cross-section of those regarded by him as significant.
A Summary Account of the Night’s Events
38 The six officers who authored the documents gave evidence, as did the applicant.
39 It is helpful at this point to give an account, in broad outline, of what occurred on the night in question drawn primarily from the police officers’ evidence at hearing.
40 Each of the officers stated that he had a clear recollection of the events of the night, and gave persuasive reasons as to why they had a clear recollection so long (3 years) afterwards.
41 Two men, the applicant and Mr B, had been trying to get into […] an entertainment venue in Oxford Street. The manager had denied them entry. He had contacted the police, and the call had been referred to Surry Hills Police Station, complaining that they were standing outside the entrance to the premises, abusing patrons. Constables Branwhite and Duggan attended. They said the manager said that both men had previously been banned from the venue.
42 When they arrived they found that the two men were not causing any trouble to patrons. They asked them to move on. The applicant, in particular, disputed their right to give a direction of this kind. They referred to the powers to give such a direction under a then recently-made law, the Crimes Legislation Amendment (Police and Public Safety) Act 1998, which had commenced on 1 July 1998. The applicant disputed their interpretation of the law, and they say that in the course of the interchange said he was a solicitor. After further discussion, the applicant and his friend moved on.
43 The applicant and his friend then drove in separate cars to Surry Hills Police Station. The applicant asked to see the officer in charge, and Inspector Hall met them at the counter of the police station. They complained to Inspector Hall over the conduct of the officers who had attended at Oxford Street, and a long discussion ensued as to their concerns and what they saw as their rights. Inspector Hall spent some time with them, said to be as long as 30 minutes. Sergeant Carrabs, Inspector Hall’s deputy on the night, remained in the background listening to the exchanges. Eventually Sergeant Carrabs directed them to leave the station, and they did so.
44 They then went to the Rose Bay police station by car together. The reason given by the applicant for doing this was that he was concerned that the Surry Hills police might not act on his complaint, and he was also concerned over how he had been treated by the police at Surry Hills. He felt that if he went to another police station, and made a further report, it would be more likely that his complaints would be examined. At Rose Bay, the desk constable, Constable McDonald, dealt with them.
Assessment of Documents
45 In addition to the documents in issue, Constables Duggan and Branwhite produced their notebook entries in relation to their attendance at Oxford Street. Also produced was the COPS system’s record of the original call by the manager. Inspector Hall said his report was based on his notebook entries (made after the applicant and his friend left the police station) and conversations with Constables Duggan and Branwhite (at the time) and with the manager of the entertainment venue. Inspector Hall produced his notebook entries.
46 The Branwhite and Duggan reports as they related to the Oxford Street situation were consistent with each other, without any obvious signs of collaboration in their preparation such as the use of identical language or closely parallel sequences of presentation. The reports were consistent with their contemporaneous notebook entries. I am satisfied that they were independently prepared.
47 I am similarly satisfied in relation to the reports of Inspector Hall and Sergeant Carrabs. For example, Inspector Hall gave a detailed, descriptive account of his interchange with the two men. Sergeant Carrabs' account was shorter and, in contrast to the other officers’ reports, used more pungent language to describe the behaviour of the two men. He also referred to the disruptive effect their attendance at the police station had had that night.
48 The applicant himself conceded that there was no question that Constable McDonald's report was independently prepared. For the Tribunal, it has special value as it was made immediately after they left the police station.
49 There are significant consistencies between all five police as to the way in which the applicant behaved that night. The applicant has only conceded one of the descriptions used in the documents to describe his behaviour – that he was ‘argumentative’ (at Oxford Street, Document K by Branwhite). He objected in effect to the whole of Sergeant Carrabs’ report, except for the words ‘He was intelligent and articulate but not angry.’ He has not conceded any of the stronger descriptions given of him or statements said to have been made by him.
50 The applicant vigorously objected to the suggestion that during his interchanges with the various police he referred to himself as a 'solicitor'. He has substantial academic qualifications in law, including he said three law degrees (an undergraduate degree and two post-graduate degrees). He is not admitted to practice. He is reported as having used the description ‘solicitor’ himself in the course of the argument over the lawfulness of the police's move-on direction. Both attending officers gave evidence to that effect, though Constable Duggan acknowledged he had not included it in his report. The applicant says on the other hand that all he said was that he had a law degree but he was adamant that he did not say that he was a solicitor. Constable McDonald recalled that he stated to him that he had a law degree; and that he would not have expected a person studying law to carry on in the way the applicant did.
51 The weight of evidence clearly favours the account given by the officers. In their oral evidence at hearing they each indicated that they particularly remembered the reference to being a solicitor. Each of them said, based on their experience of dealing with solicitors, that they regarded his conduct as particularly odd for a solicitor. I accept without reservation the evidence of the officers on this matter.
52 In his oral evidence at hearing the applicant manifested deep indignation over a number of aspects of the events of that night. Firstly, he said that he had not been banned from the venue. He said that his friend had been. Secondly, he said that he had only been involved in making abusive statements to one patron outside the venue. He gave as a justification that he had been assaulted by that man in the past. Thirdly, he said that in dealing with the attending police he had behaved in the way that he usually behaved, and as he was now behaving in the tribunal. He had been vigorous but courteous in his statements to the police, and he had been doing no more than what any citizen was entitled to do, namely asserting his right to be let alone to go about his business as he saw fit in a peaceful way. As far as he was concerned he was not doing anything by way of breaking the law. He was out for the night. He had arranged to go to the venue with his friend and then have a meal. He acknowledged now that he was in error in relation to the question of whether the police had a move-on power.
53 Fourthly, he had gone to the Surry Hills police station to lay the complaint. He had not been happy with the way the Surry Hills police had dealt with him, so he then went to Rose Bay. He denied the suggestion that he had conducted himself in such a way at Surry Hills and Rose Bay as to seek to draw the police into action which could itself then become the subject of a complaint. Observations to this effect are found in the report of Sergeant Carrabs and the record made by Constable McDonald. Fifthly, he rejected the suggestion that he was a vexatious complainant with a deep seated grudge against the police.
54 At this point in the hearing, the applicant became more emotional. He referred at length to the injustices that he believed that he had suffered. […] He considers that he has been the subject over a long period of a campaign of victimisation by several men, and that the police and other authorities have failed to deal with the conduct of those men appropriately.
55 The applicant emphasised at different points in the hearing that he respected the work of the police. On the other hand, it is in my view plain (as was put to him in cross examination) that he has a deep seated distrust of police, and in that sense, a grudge against police. On the night in question he sees himself as having been set up by the manager of the venue, and then not treated properly by the various police with whom he dealt.
56 Though this is not the issue before me, I add that, in my view, the police did no more than what the situation they were confronted with required of them. The attending police secured, after some disagreement, the applicant's agreement that he and his friend move on. Relevant notebook entries were made. No attempt was made to charge the two men or arrest them. No further action was taken.
57 Inspector Hall made himself available to them (when he need not have) at the station counter on a busy night at a police station in an inner city entertainment district. He dealt with them in a painstaking way. Sergeant Carrabs' evidence was, in effect, that he felt that Inspector Hall had been too kind. Sergeant Carrabs would, it seems, have given them much shorter shrift. Sergeant Carrabs said in evidence that had they not left when they did, he would have physically ejected them. Constable McDonald dealt with them courteously and made an appropriate record.
58 The records in issue give no more than a precis of the various encounters. The records are not moment-by-moment, word-by-word records of what happened and what was said. The records were prepared (with the exception of Constable McDonald's COPS entry) for the purpose of an internal investigation of complaints. In deciding whether they are incorrect or misleading in a material respect account needs to be taken of the purpose of the records.
59 It is not reasonable to subject them to the kind of semantic analysis that the applicant sought to do on occasions during the hearing. The level of scrutiny to which records are subjected must bear some connection with the purpose for which they were created, and the context in which they were created. In this case the first four records were all prepared some time after the event for the purposes of an internal inquiry, and were in the nature of summary accounts of the events of that evening.
60 Moreover, records of this kind - prepared for an internal investigation - will necessarily record perspectives, or impressions held, by the authors as to the way in which third parties may have conducted themselves.
61 There is clearly a danger in the context of an internal complaints inquiry that the authors will seek to give a self-serving impression of the propriety of their behaviour, and a self-serving impression of the lack of propriety of the behaviour of the complainant.
62 Accordingly, what an objective observer might regard as being no more than a reasonably vigorous assertion of civil rights on the part of the person with whom the police are dealing, might be depicted by the police once complained against as insolent, disruptive, rude and contemptuous. All of those depictions of the applicant's behaviour that night are to be found in the records in issue in this case; or in the evidence of the officers at hearing.
63 The Tribunal does not have the benefit of any evidence from such an objective observer.
64 It did have the benefit of hearing from the officers and the applicant, and is satisfied that the depictions given by the officers of the applicant were not motivated or affected by self-serving concerns.
65 The Tribunal is satisfied that their reports contain genuinely-held perceptions founded on conduct reasonably capable of the kind of interpretation that they gave to that conduct. The applicant saw his behaviour, and his motives, differently. The perceptions expressed by the officers could not be said to be, for example, affected by prejudice or incompetence or lacking a substratum of facts.
66 Sergeant Carrabs' record gave me the greatest concern. It was expressed in language of great pungency and vigour, according with Sergeant Carrabs' style in giving evidence. In my view the language (though stronger than that used in the other reports) fairly recorded his perceptions, and they were perceptions reasonably open to be held by a person in his situation with his responsibilities on that night, which as he explained, included ensuring that good order was maintained at the station and that it ran efficiently.
67 I do not see the amendment right given by FOIA as a licence to engage in editorial sanitation of language. The language employed by Sgt Carrabs does not, in my view, go so far as to mislead the reader as to the nature of the conduct that he observed or involve any false statement of the facts, especially when compared with the evidence given by the two other officers who witnessed the events at Surry Hills - Inspector Hall and Constable Duggan, after he returned.
68 I have not dealt so far in these reasons with the sixth document, the executive report prepared by Inspector Rayment. Whether it stands or falls, as the applicant conceded, depends on the view taken of the underlying five documents. It was accepted by the applicant as a satisfactory record of the underlying material, except in one respect. I am satisfied that there is no reason to disturb that record. On the other hand there is some force in the applicant’s point that there is no detailed reference in Inspector Rayment’s report to the contents of his letter to the Minister, sent 5 days after the events, which gave rise to the internal affairs investigation. If there is any gap in the full brief as it was considered by the Commander to whom Inspector Rayment reported, that can be addressed by an appropriate notation. (If there was in fact an omission to consider the applicant’s version of events, that is a process issue to be addressed by other authorities).
69 The application for amendment of the records should be dismissed in all respects.
70 As noted previously, an applicant who is unsuccessful in obtaining amendment of disputed records may have attached a notation to the disputed record. That is the appropriate course for the applicant to pursue in this case. It is one that he has already agreed to in relation to some records that had originally been in dispute.
71 I have sought in these reasons to avoid an unduly detailed account of the material, so as to avoid drawing too much further attention to the events of that night, and in the hope that the applicant may be encouraged to put them behind him. An enormous amount of police resources has been expended already in dealing with this application; including having six officers taken away from their normal duties to attend the tribunal hearing, in effect to revisit an internal complaints process long closed.
ORDER
The application is dismissed.
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