Ferns v Commissioner, Department of Corrective Services

[2006] NSWADT 217

CITATION:	Ferns v Commissioner, Department of Corrective Services [2006] NSWADT 217
DIVISION:	General Division
PARTIES:	APPLICANT Craig Ferns RESPONDENT Commissioner, Department of Corrective Services
FILE NUMBER:	053279 & 053347
HEARING DATES:	25/11/2005, 13/02/2006 and 7/04/2006
SUBMISSIONS CLOSED:	04/07/2006
DATE OF DECISION:	08/01/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - amendment of documents - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - amendment of documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195 Ferns v Commissioner of Police [2006] NSWADT 198
REPRESENTATION:	APPLICANT N Dawson, barrister RESPONDENT T Anderson, barrister
ORDERS:	Application No 053279:; The decision of the respondent is set aside and in substitution thereof a decision to:; a) remit, pursuant to s.63(3)(d) of the Administrative Decisions Tribunal Act 1997, the matter of the applicant’s request for a copy of the applicant’s original handwritten Officer Report, for the respondent to conduct a systematic and thorough search for that Report in accordance with the recommendations contained in these reasons for decision; b) the respondent to reconsider the matter as remitted above, within 28 days of this decision; and; c) grant the applicant access to a full copy of Information Report TFS 085.99 in so far as it relates to the verbatim account of the applicant’s Officer Report. That full copy to be provided within 28 days of this decision; Application No 053347:; 1.The decision of the respondent is set aside and in substitution thereof a decision to amend the Memorandum of Deputy Superintendent Maa dated 20 August 2003 in accordance with these reasons for decision as set out in para [55] and [56]; 2.The respondent to provide the applicant with a copy of the amendments that have been made to the hard copies and the computerised versions of the Memorandum within 28 days of this decision

Introduction

1 The two applications the subject of this decision relate to two decision of the Commissioner of the Department of Corrective Services (“the respondent”) in respect to requests made by Helen Ferns, as agent, on behalf of her son Craig Ferns (“the applicant”) pursuant to the Freedom of Information Act 1989 (“the FOI Act”). Application No 053279 relates to a decision by the respondent to refuse the applicant access to a copy of an Officer Report that he wrote on 9 September 1999 and submitted to the respondent. Application No 053347 relates to a decision by the respondent to refuse the applicant’s request for the amendment of an internal memorandum, concerning the applicant, and dated 20 August 2003.

2 The applicant is a former correctional services officer and these applications, like others before them, concern his employment with the respondent. Both applications came before the Tribunal as a deemed refusal under ss.24(2), 34(6), 43(2) and 47(6) of the FOI Act. That is, the respondent having failed to make its initial determination and internal review determination within the time prescribed by these sub-sections, is deemed to have refused access to the documents requested and the amendments sought.

3 As each application raises different issues and relate to different documents, I have dealt with them separately in these reasons for decision.

Application 053279: Applicant’s Officer Report

a) Background

4 As mentioned above the document in dispute in application No. 053279 is a handwritten Officer Report, written by the applicant and dated 9 September 1999 (“the applicant’s Officer Report”). It is not disputed that the applicant, in his capacity as an officer of the respondent, wrote such a report and submitted it to the relevant officer of the respondent. Nor is it disputed that the content of the applicant’s Officer Report is the subject of Information Report TFS 085.99, which is dated 14 September 1999 (“the Information Report”). The applicant had been provided with an edited version of the Information Report following an earlier FOI request. As a result of this earlier FOI request, the applicant had been given access to an edited version of an Intelligence Report, dated 15 September 2000, of which the Information Report was an annexure (i.e. annexure H). Annexed to the Intelligence Report was a further Information Report written by the applicant on 31 October 1999 (i.e. annexure B), a copy of which had also been provided to the applicant.

5 The position of the respondent is that, while it acknowledges that at some point in time it held the applicant’s Officer Report, after conducting a search it has found that it no longer has this document in its possession. However, the respondent did not concede that the Information Report was a copy of the applicant’s Information Report.

b) Issues

6 Accordingly, there are two issues for determination in application No. 053279. These are:

(a) whether the respondent has conducted an adequate search for the applicant’s Officer Report;

(b) whether the Information Report TFS 085.99 is a copy of the applicant’s Office Report and if it is, whether the deletions in this document are exempt by reason of sub-clause 4(3B) of Schedule 1 of the FOI Act.

7 In a recent decision the President confirmed that the Tribunal has jurisdiction to deal with adequacy/sufficiency of search: see Cianfrano v Director General, Department of Commerce and Anor (No 2) [2006] NSWADT 195. In that decision, at [65], the President concluded as follows:

“In my view if an applicant contends that there has been a failure to locate relevant documents the Tribunal must decide whether the applicant is raising a s.24(2) question. The situation that arose in Burton [ Burton and Victoria Police, unreported, Administrative Appeals Tribunal of Victoria, No 1996/26906 (5 November 1998)] underlines the need for the Tribunal to satisfy itself always that the determination before it is a fully responsive determination. The Tribunal may have to ascertain whether there has been a possible failure by the agency to address all documents in its possession. Such a failure can be properly be characterised as a refusal of the kind referred to in s.24(2); and is reviewable.”

8 S.24(2) of the FOI Act provides that where an agency fails to determine an FOI request within 21 days of its receipt, then for the purposes of s.34 (internal review application) and other provisions of the FOI Act the agency is to be taken to have determined the application by refusing access to the document requested.

9 In Cianfrano the President went on to say the following at [68] and [69]:

“68 I think it [is] clear that the function of s.24(2) in the scheme of the Act is to ensure that an agency fully determines an application, and for such a refusal to be subject to the scrutiny of both internal and external review.

69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s.24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.”

10 In this application there was no challenge to the Tribunal’s jurisdiction to examine whether there had been sufficiency of search by the respondent. Even if there had been such a challenge, I am satisfied that the requirements referred to by the President in [69] above have been met by the applicant. That is, the applicant has satisfied the Tribunal that the document sought did exist at one point in time and that it was a document that would in the normal course of events be kept by the respondent. This is supported by the fact that the respondent has retained a copy of another Officer Report of the applicant that he wrote only a matter of 6 weeks after the Report in issue.

d) Evidence

11 The applicant having met the threshold as set out by the President, the onus rests on the respondent to satisfy the Tribunal that it has made the appropriate searches for the document in question. In this regard the respondent filed and served three affidavits as follows:

(a) an affidavit of Allisar Katrib, solicitor in the employment and administrative law branch of the respondent, sworn on 24 January 2006 (“ Ms Katrib’s affidavit ”). This affidavit had several documents attached to it, including an earlier affidavit of Ms Katrib, sworn on 26 October 2005. This earlier affidavit had attached to it a response from A/Deputy Superintendent Leah Nicholson, dated 25 October 2005, and a further response from A/Deputy Superintendent David Cahill, dated 9 August 2005, concerning searches or enquires that they had made in seeking to locate the whereabouts of the applicant’s Officer Report;

(b) an affidavit of Andrew Bruce McClintock of the Security and Intelligence Branch of the Department of Corrective Services, sworn on 7 February 2006;

(c) an affidavit of First Class Correctional Officer Geoffrey Christopher Cowan, sworn on 8 February 2006. In his affidavit, Mr Cowan stated that he was the recipient of the applicant’s Officer Report and that he prepared the Information Report that is numbered TFS 085.99. He also states that at the time he received and made the reports in question he was working, on secondment from the Corrections Intelligence Group (“CIG”), in the Office of the Director of the State Investigative and Security Group (“SISG”) as an intelligence analyst;

12 Ms Katrib, Mr McClintock and First Class Correctional Officer Cowan were also made available for cross-examination, as was A/Deputy Superintendent Leah Nicholson and A/Deputy Superintendent David Cahill. In addition to this the respondent called Superintendent Kenneth Hughes, who is a police officer on secondment to the respondent in the position of Superintendent of the CIG.

13 It is convenient to begin with the evidence of First Class Correctional Officer Cowan as he would appear to be the last person to have seen the applicant’s Officer Report. In his oral evidence he explained that at the time any officer of the respondent wished to file a report that officer did so by completing a pro forma Officer Report. This pro forma document was blue in colour and A3 in size. The Tribunal understood that these forms continue to be used today.

14 First Class Correctional Officer Cowan went on to say that at the relevant time, each time he received an officer report from an officer of the respondent his usual practice in dealing with such reports was to prepare an information report, using the standard template form on the respondent’s computer database. When making an Information Report he would allocate a “TFS” number to it. The letters “TFS” he explained stood for “Task Force STED” and each report would be numbered sequentially followed by the year in which it was created. In this case, the Information Report he had prepared following receipt of the applicant’s Officer Report was the eighty-fifth report that he had prepared during 1999. Accordingly, his Information Report was numbered TFS 85.99.

15 First Class Correctional Officer Cowan went on to say that after he had prepared an information report, his usual practice was to print out a hard copy of the report and to place this report together with the relevant officer report into a manila folder file, which he recollected being blue in colour. He would then allocate a file number to the folder. That file number corresponded with the number allocated to the information report as well as a SISG file number. He explained that there was a list for such numbers and his recollection was that at the relevant time these numbers commenced with “SISG 99/”. After placing the file number on the manila folder, he gave it to the Administrative Officer within the SISG and that he would cease to have any further involvement with the file, including any assessment of the information contained in the report. Someone else within the SISG would do this. It was First Class Correctional Officer Cowan’s recollection that he would have followed his usual practices after he had prepared his Information Report TFS 085.99. That is, that Report together with the applicant’s Officer Report would have been placed in a file (i.e. a manila folder), the file number of which included “TFS 085.99” and “SISG 99/”.

16 In his affidavit First Class Correctional Officer Cowan stated that having prepared the Information Report his usual practice was to email the report to the CIG, which he explained was a separate group to the SISG.

17 Although A/Deputy Superintendent Nicholson did not conduct any search for the applicant’s Officer Report, she gave evidence about her recollection of the system that was in place, in 1999, as to where such reports or copies of these reports would be retained. In summary her evidence was as follows:

(a) a copy of the officer report would be placed on the personnel file of the officer who made the report;

(b) a copy of the officer report would be forwarded to the relevant intelligence officer in the unit where the author of the officer report was located. In this regard she explained that each unit or area within the respondent has a designated intelligence officer working within it. At the relevant time this included designated intelligence officers in the SISG and the various detention centres in New South Wales. It is and was then the responsibility of these designated intelligence officers to prepare an information report from the template contained on the respondent’s computer data-base. But she went on to say that it had only been in the last two years that intelligence officers were given access to this template on the respondent’s intra-net computer system. Once an information report had been created, this report and a copy of the officer report are retained in the unit where the author of the officer report is located;

(c) a copy of the information report would then be emailed or faxed to the CIG.

18 It is not clear whether First Class Correctional Officer Cowan received the original of the applicant’s Officer Report or whether he received a copy. Nor is it clear as to where the applicant was working at the time the report was made. In any event, on the basis of the evidence before the Tribunal and on the assumption that at the relevant time the applicant was working in a unit other than the SISG, had the applicant’s Officer Report been handled in the usual way, the original or a copy of it should have been held in three places; namely his personnel file, the unit where he was working at the time the report was made and in a specified file in the SISG.

19 Whether a copy of the applicant’s Officer Report was also sent to the CIG, which as explained above was a separate Group to the SISG, is not altogether clear.

20 Ms Katrib in her evidence acknowledged that she personally had not conducted any searches for the applicant’s Officer Report. Nor had she requested any one else to conduct such a search. She also acknowledged that she was not familiar with the respondent’s record keeping systems in 1999 or thereafter and that she had made no enquiries in this regard. There was also no evidence that Superintendent Hughes conducted any searches. The only person to give evidence about searches that were conducted was that of A/Deputy Superintendent Cahill.

21 In his oral evidence, A/Deputy Superintendent Cahill, Security Manager of the Court Escort Group of the respondent, explained that he had pursued three areas of enquiry as to possible locations of the applicant’s Officer Report. These were:

(a) the Security and Investigations branch – in this regard he explained that he examined all the current files within this branch that related to the applicant. This included all the current files that were held by the CIG, which the Tribunal understood to be one of several specialist Groups within this branch. He went on to explain that through a restructure the SISG ceased being a separate group within this branch;

(b) the Drug Detection Dog Unit – this was the Unit where the applicant had been employed prior to his departure from the employ of the respondent and which continued to hold the applicant’s personnel files. A/Deputy Superintendent Cahill did not personally examine these files but requested that Scott Westlake, who was attached to that Unit, to search the applicant’s personnel file and all historical and current files held in that Unit relating to the applicant. While A/Deputy Superintendent Cahill was informed that a copy of the applicant’s Officer report could not be found, there is no evidence of which or how many files were in fact searched; and

(c) the archived files which were located at Long Bay Prison. In this regard A/Deputy Superintendent Cahill explained that these files were stored in a haphazard way without any particular system, making it difficult for him to conduct a search. He said he conducted his search by looking at any box that was marked as coming from the Drug Detection Dog Unit during the relevant time as well as those boxes marked as coming from the SISG during the relevant time. In response to a question during cross-examination, A/Deputy Superintendent Cahill said that he had not examined any boxes that were labelled “TFS”. However, he said that there were boxes in the archives, which contained Information Reports. These he said were labelled and none of these came within the description of the applicant’s Officer Report.

22 On the whole, I have found the evidence of the respondent’s witnesses to be very confusing. I do not believe that this has been intentional. However, I am left without a clear understanding of the record keeping systems of the relevant sections of the respondent, which in the normal course of events should have held the original or a copy of the applicant’s Officer Report and where those records are retained or stored today. In this regard, I note from an examination of the organizational structure of the respondent, as contained in its annual reports for the years ended 30 June 1999 to 2005, that it has at all times had a division responsible for record management, yet there is no evidence to indicate what assistance, if any, was sought from this division for the purpose of initiating a systematic search for the applicant’s Officer Report. That is, there is no evidence of enquiries having been made of this division as to the record keeping system that was in place in September 1999 for the relevant areas and how and where those records were and continue to be stored having regard to various re-structures of the relevant areas and the respondent’s archiving policy (if any). As mentioned above, it was the evidence of First Class Correctional Officer Cowan that he created a specific file, which contained not only his Information Report but also the applicant’s Officer Report. That file was identified as a TFS 085.99 SISG 99/ file but there is no evidence to indicate, where such a file would be located today or that a search had been made for this particular file. It is also unclear as to whether a search was made of the file that contained SISG Intelligence Assessment that is dated 15 September 2000. As mentioned above, attached to that Intelligence Assessment was a copy of TFS 085.99 (i.e. annexure H) and the applicant’s subsequent Officer Report of 31 October 1999 (i.e. annexure B). In her evidence Ms Katrib explained that she had personally examined the Intelligence Assessment and its attachments, but acknowledged that she had made no further enquiries in respect to any file this Assessment may have formed a part of.

23 The circumstances in this application are unusual in that there is no dispute about the identity of the document for which access has been sought. Nor is it disputed that the document is one, which in the ordinary course of events, the respondent would retain a copy of in several different locations. While it is possible that a document, and any copy thereof, which were created almost 6 years ago may have been lost or destroyed, in my opinion, for the purposes of the FOI Act, the onus remains on the respondent to satisfy the Tribunal that it has conducted a systematic and thorough search of all relevant files. I accept that, even though it was late in coming, an effort was made by the respondent to search for the applicant’s Officer Report. However, in the circumstances of this application, that search was by no means systematic or completely thorough.

24 For the reasons set out above, I find that the respondent has failed to satisfy the Tribunal that it has conducted a sufficient search for the applicant’s Officer Report of 9 September 1999. On this basis the appropriate order is to set aside the respondent’s deemed determination of a refusal to grant the applicant access to this document and to remit the matter, pursuant to s. 63(3)(d) of the Administrative Decisions Tribunal Act 1997, for further consideration by the respondent in accordance with these reasons for decision. In this regard, the Tribunal recommends that the respondent undertake a fresh search based on the evidence before the Tribunal (in particular the evidence of First Class Correctional Officer Cowan) and the relevant records of the respondent’s record keeping system(s) in regard to all personnel files, unit files, TFS and SISG files and CIG files that concern or relate to the applicant. An appropriately authorised officer of the respondent, who has not previously been involved in this particular FOI request, should be made responsible for that search.

25 In my opinion, having regard to the history of this matter, it is also appropriate to require the respondent to complete its reconsideration of its decision within 28 days of the publication of this decision.

e) Information Report TFS 085.99

26 As mentioned above, there are two matters in issue in respect to Information Report TFS 085.99. The first is whether this Information Report is a copy of the applicant’s Officer Report of 9 September 1999. In this regard I note that the substance of the Information Report is “information” provided to the author of the Report, First Class Correctional Officer Cowan, who prefaced that “information” with the following words:

“The following Officer report form, written by the Informant, is restated verbatim:

…”

27 The “Informant” is identified in the Information Report to be the applicant. In my opinion, having described what followed as being a “verbatim” account of the applicant’s Officer Report, the overwhelming inference to be drawn from this is that the substance of the Information Report is in fact a typed version of the contents of the applicant’s Officer Report. That is, it is a transcript of that which was contained in the applicant’s Officer Report. As First Class Correctional Officer Cowan was not challenged in this regard I find that the body of his Information Report TFS 085.99 is a transcript of the substance of the applicant’s Officer Report. Accordingly, that portion of the Information Report which is a transcript of the applicant’s Officer Report must also be must also be a copy of that Report: i.e. a thing made to imitate or be identical to another (see definition of “copy” The Australian Concise Oxford Dictionary, Fourth Edition).

28 However, the question is whether this transcription or copy of the applicant’s Officer Report comes within the applicant’s FOI request of 6 July 2005. In that request the applicant sought access to “a copy” of his Officer Report that had been made the subject of Information Report TFS 085.99. It is arguable that this request did not include being given an unedited version of Information Report TFS 085.99. As explained above, it was as a result of being given access to the edited version of this Report that the applicant sought a copy of his Officer Report.

29 In my opinion, the Tribunal should not take an unnecessarily restrictive approach to this question. The essence of the applicant’s FOI request was for access to a “copy” of his Officer Report, which in my opinion would include a copy of a transcription of that Report.

30 As mentioned above, the applicant obtained access to an edited version of the Information Report as a result of an earlier FOI request. This edited version contained numerous deletions in that part of the Report which was the transcription of the applicant’s Officer Report. There were no other deletions and the respondent claimed that the deletions had been made on the grounds that the document was exempt under cl.4(3B) of Schedule 1 of the FOI Act. The respondent has pressed this ground of exemption.

31 Sub-clause 4(3B) of Schedule 1 of the FOI Act provides as follows:

“(3B) A document is an exempt document if it is a document that has been created by the Corrections Intelligence Group of the Department of Corrective Services in the exercise of its functions concerning the collection, analysis or dissemination of intelligence.”

32 Accordingly, the question is whether Information Report TFS 085.99 was created by the CIG in the exercise of those functions specified in sub-clause 4(3B) above. Ms Anderson, who appeared on behalf of the respondent pointed out to the Tribunal that the deletions had been the subject of an earlier application by the applicant and that the Tribunal had found that the deletions of the copy of the document provided to the applicant were exempt. I understand that earlier application to be application No 053280.

33 I have examined the papers on that file and I note that it was an application by Matthew Ferns, the brother of the current applicant. I also note that this application was withdrawn and dismissed on 25 November 2005. On this basis no determination was made in regard to the question of whether the deletions in Information Report TFS 085.99 were exempt under sub-clause 4(3B) or any other exemption contained in Schedule 1 of the FOI Act. Even if there had been, in my opinion, with the additional evidence that is now before the Tribunal, the Tribunal can examine this issue a fresh for the purposes of this application.

34 Again the starting point is the evidence of First Class Correctional Officer Cowan who, it is not disputed, created the document. In his evidence he said that he had commenced employment with the respondent in February 1995 and in May 1997, he “obtained an appointment to the Department’s Corrections Intelligence Group”. He went on to say that in August 1997, the CIG “seconded” him to the Office of the Director of the SISG to act as the intelligence analyst for that office. It was during the period of this “secondment” that he received the applicant’s Officer Report. During cross-examination, First Class Correctional Officer Cowan said that at the relevant time he had 2 bosses. He said that while he was located in the SISG, his work was controlled by the Superintendent of the SISG. However, he went on to say that his intelligence work was controlled by the Superintendent of CIG. The Tribunal understood First Class Correctional Officer Cowan to say that the preparation of an information report, including the Information Report in question was part of his CIG work.

35 Deputy Superintendent Andrew Bruce McClintock, in his sworn affidavit, confirmed the evidence of First Class Correctional Officer Cowan in that at the relevant time he was a “secondee” to the SISG and that he prepared intelligence for the officer in charge of that Group. He went on to say that even though First Class Correctional Officer Cowan was “seconded” to the SISG the intelligence work that he prepared for the SISG was intelligence work of the CIG. However, during cross-examination Deputy Superintendent McClintock was not so clear. He acknowledged that at the relevant time the SISG and the CIG were specialist units with specific functions, which operated independently of each other. It is my understanding that these two Groups were two of several specialist groups or units within the then Security and Investigations Branch.

36 It was the evidence of A/Deputy Superintendent Nicholson that all Information Reports were created by the CIG, yet she acknowledged that any officer of the respondent could make such a report and he/she would do so by accessing the template of the report on the respondent’s computer system and a copy of that report would be furnished to the CIG. During cross-examination, A/Deputy Superintendent Nicholson, conceded that not all information reports were forwarded to the CIG. That is, this Group sometimes only received a copy of the information report after an intelligence report had been prepared. From the material before the Tribunal it would appear that such intelligence reports are not necessarily reports generated by the CIG.

37 In my opinion, the fact that the report is forwarded to the CIG for its use does not mean that it is a report that was “created by” the CIG as required by cl.4(3B) in order for it to be exempt: see Ferns v Commissioner of Police [2006] NSWADT 198. I also found the evidence of First Class Correctional Officer Cowan to be far from clear as to his particular responsibilities at the relevant time. If his Information Report was intelligence work, it is difficult to understand why it was actioned by placing it into a SISG file. Furthermore, about one year later it became the subject of an intelligence report of the SISG and not the CIG.

38 During the course of the hearing I raised concerns about the sufficiency of the evidence and suggested to Ms Anderson, counsel for the respondent, that the Tribunal would be assisted by being provided with an organisational chart which identified how the SISG and CIG related to each other, a summary of the responsibilities of these particular groups (in particular the functions of the CIG) and details of First Class Correctional Officer Cowan’s “secondment”. In respect to the latter, I indicated that I understood a “secondment” to mean the temporary transfer of a person from his/her substantive position to another position in another organization, or to another position in a unit within the same organization (“new position in the new organization or unit”). That is notwithstanding the transfer, the person continued to hold his/her substantive position and would return to that position at the conclusion of the transfer or if he/she obtains a position elsewhere. Furthermore, while on transfer that performs the functions of the new position he/she is transferred to and is accountable to the relevant officer of that new organization or unit and that during the period of transfer he/she no longer works for the organization or unit where his/her substantive position lies.

39 Notwithstanding my request for assistance the respondent did not to provide the Tribunal with any further information.

40 Accordingly, I must rely on the information that is before the Tribunal. Again, I have found the evidence of the respondent’s witnesses in relation to this issue to be vague and contradictory. It is difficult to accept First Class Correctional Officer Cowan’s evidence that any information report he completed while he was in the SISG was in his capacity as an officer for the CIG and that these reports were created in the exercise of the specified functions of the CIG. If that were the case then why was it that Information Report TFS 085.99 was given a TFS number and placed in an SISG file and passed to an officer within the SISG for that officer or another officer within the SISG to assess the information contained therein (see reference to “State Investigative and Security Group Comments” on the Report). On this evidence it would appear that the Report was created by the SISG in the exercise of its functions and a copy was sent to the CIG for information. The evidence of Deputy Superintendent Andrew Bruce McClintock, A/Deputy Superintendent Nicholson and Superintendent Hughes did not assist in clarifying this contradiction.

41 In my opinion, the most cogent evidence before the Tribunal is the information contained in Information Report TFS 085.99. Nowhere in that Report is it stated that it had been “created” by the CIG. The document does contain a reference to the CIG at the end of the document. That reference is made in respect to the FOI Act and states that the information contained in the document is not to be provided to a third party without the express endorsement of the Commander of the CIG. This in my opinion, when regard is had to the other words contained in the Report do not make it a document that was created by the CIG in the exercise of its specified functions. There would appear to be several hard copies of the Report and it would appear that these copies do not include a copy of the Report that was placed into the SISG file by First Class Correctional Officer Cowan when he created the Report. The copies that have been provided appear to have been printed from the CIG data base, which the Tribunal understood to be a data base separate from the general data base of the respondent. In my opinion, on the evidence before the Tribunal, this does not make it a document that was created by the CIG in the exercise of its specified functions.

42 Accordingly, I find that the respondent has failed to satisfy the Tribunal that Information Report TFS 085.99 was created by the CIG in the exercise of its functions as specified in sub-clause 4(3B) of Schedule 1 of the FOI Act.

43 Had it been established that the Information Report TFS 085.99 was created by the CIG, in my opinion, there would be a further question as to whether the respondent, having granted the applicant access to a large portion of that Report, could continue to claim the exemption contained in cl. 4(3B) of Schedule 1 of the FOI Act. That exemption relates to a document as a whole, unlike the exemptions contained in cl. 4(1) of Schedule 1 of the FOI Act, which relate to the contents of a document. In any event this is not a matter on which the Tribunal is required to make a determination.

44 For the reasons set out above, the respondent’s decision to refuse to provide the applicant with an unedited version of Information Report TFS 085.99 to the extent it is a verbatim account of the applicant’s Officer Report is set aside and in substitution thereof a decision that the applicant be granted access to that document within 28 days of this decision.

Application 053347

a) Background

45 On 19 August 2005, the applicant requested amendments to a Memorandum, dated 20 August 2003, from Deputy Superintendent Peter Maa to Commander Don Rogers. That Memorandum concerned the applicant. The amendments requested were as follows:

- the third paragraph on page one of the Memorandum – deletion of the statement:
“During this meeting, Officer Ferns was informed that this matter would be considered and that a review of his position with the Drug Detection Dog Unit will be conducted”;
- the fourth paragraph on page two of the Memorandum – deletion of this paragraph which referred to Deputy Superintendent Peter Maa having a meeting with Officer Ferns on 20 December 2002; and

- the fifth paragraph on page two of the Memorandum – deletion of the word “later”.

46 For each amendment, the applicant requested that a line be ruled through the requested deletions. In addition to this he requested a notation be made in the margin next to the deletions that stated: “This statement is incorrect and misleading – refer to the notation at the front of this report”. The applicant then requested three separate notations to be placed on the front of the Memorandum. These notations were in the following terms:

- Re deletion of the third paragraph on page one of the Memorandum:
“Mr Ferns was removed from the Drug Detector Dog Unit by Deputy Superintendent Peter Maa on 19 December 2002, which was prior to Mr Maa conducting his review of the matter to be considered.”
- Re deletion of the fourth paragraph on page two of the Memorandum:
“Deputy Superintendent Peter Maa did not have a meeting with Mr Ferns at any time after he had completed his review of Mr Fern’s position within the Drug Detector Dog Unit and therefore at no time was Mr Ferns informed of any matter reviewed. Mr Ferns was removed from the Drug Detector Dog Unit on 19 December 2002, which was prior to the review conducted by Deputy Superintendent Peter Maa.”
- Re deletion of the fifth paragraph on page two of the Memorandum:
“The events identified in this paragraph occurred on 19 December 2002, prior to any review being conducted by Deputy Superintendent Peter Maa.”

47 In addition to this the applicant requested both the electronic and paper versions of the Memorandum be amended as requested and that he be provided with copies of the amended documents.

48 S.39 of the FOI Act gives a person who has been given access to an agency’s document a right to apply for the amendment of that document if:

(a) the document to which access was given 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, it is, in the person’s opinion, incomplete, incorrect, out of date or misleading.

49 S.44 of the FOI Act sets out the grounds on which an agency may refuse to amend its records. These circumstances are where:

(a) the agency is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or

(b) the agency is satisfied that the application contains a matter that is incorrect or misleading in a material respect, or

(c) the procedures for amending the agency’s records are prescribed by or under the provisions of the legislative instrument other than the FOI Act, whether or not amendment of those records is subject to a fee or charge.

50 As mentioned above, the respondent failed to make a determination within the time prescribed under s.43(2) and 47(2)(d)(ii) of the FOI Act. Accordingly, the decision that is the subject of the review is a decision, which is deemed to be a refusal to make the amendments sought.

51 In support of this application for review, the applicant filed an affidavit sworn by him on 8 December 2005. In that affidavit, the applicant states that on 19 December 2002 he attended the Security and Investigation Building of the Department of Corrective Services at Silverwater where he had a meeting with Deputy Superintendent Maa. He stated that at this meeting he submitted a report advising that the NSW Police had charged him on 18 December 2002 with common assault. He also stated that Deputy Superintendent Maa informed him that the charges had impacted on his then position with the Drug Detection Dog Unit (“DDDU”) and said words to the effect:

“Middlebrook wants you out of the Dog Unit. He doesn’t even want you in S and I and you are to pick a jail to go to”.

52 He went on to say that after his meeting with Deputy Superintendent Maa and while driving from the Silverwater complex he telephoned Deputy Superintendent Maa and requested one month’s annual leave to be effective from that day. He stated that Deputy Superintendent Maa approved that leave. And in support of being absent on leave on 20 December 2002 to 3 February 2003, the applicant attached to his affidavit the respondent’s records of his recreational leave. Those records support the applicant’s evidence that he was on leave as of and including 20 December 2002.

53 The applicant then stated in his affidavit that he denied the following matters which were asserted by Deputy Superintendent Maa in his Memorandum of 20 August 2003:

(a) that during the meeting of 19 December 2002, Deputy Superintendent Maa informed him that a review of his position with the DDDU would be conducted;

(b) that he had a meeting with Deputy Superintendent Maa on or after 20 December 2002;

(c) that he was informed by Deputy Superintendent Maa that a review of his position with the DDDU had been conducted; or

(d) that during the course of his meeting with Deputy Superintendent Maa on 19 December 2002 he said words to the effect that he understood the matters that were being reviewed.

54 The respondent did not challenge the evidence of the applicant. However, on 1 February 2006, counsel for the respondent, wrote to counsel for the applicant indicating the basis on which the respondent was prepared to settle the dispute in respect of the abovementioned requested amendments. In this regard, counsel for the respondent agreed to the amendments in so far as they involved a line being put through the relevant sentences, paragraphs and words. The respondent’s counsel also agreed to a notation on the Memorandum. However, the terms of that notation effectively recounted that which was contained in the applicant’s affidavit.

55 Accordingly, it would appear that the respondent has conceded that, in respect to the applicant’s requested deletions, the subject Memorandum was incorrect and it is unfortunate that the parties could not come to an agreement as to the appropriate notations that should be made. These notations, I have understood to be the information that the applicant contends is necessary to complete the Memorandum as per s.40(e) of the FOI Act and not notations as per s.46 of the FOI Act.

56 I have examined all the material that is before the Tribunal and on the basis of this material in my opinion the appropriate amendments to the Memorandum to correctly record what occurred are as follows:

(a) third paragraph – second sentence:
In the second sentence, a line is to be put through all the words occurring after the phrase “Officer Ferns was informed that” and inserting the words:

“the charges had impacted on his position with the Drug Detection Dog Unit and that Middlebrook wanted him out of the Dog Unit and the S and I and that he was to pick a jail to go to”.

(b) fourth paragraph on page two – a line to be drawn through the whole of the paragraph; and

(c) fifth paragraph on page two – a line to be drawn through the word “later”, which is one the first line.

57 In addition to the abovementioned amendments, it is appropriate that a notation be made to the document, which states that the document has been amended by order of the Tribunal as the marked items were found to be incomplete and incorrect. In my opinion, there is no basis on which to include the additional notations as requested by the applicant. In this regard I note that the applicant does not give evidence that he was in fact removed from the Drug Detection Dog Unit on 19 December 2002. His evidence was that he decided, on this particular day, to take leave. Exactly when he was removed from the Drug Detection Dog Unit is not clear. What is clear is that Middlebrook wanted him out of the Unit at that time, but whether he was in fact removed at that time is not clear.

58 Furthermore, there is no basis justifying the insertion of the additional material as suggested by the respondent. With one exception, as found above, this goes beyond that which had been requested by the applicant.

59 These amendments should be made to all electronic and hard copies of the Memorandum and the respondent should provide the applicant with a copy of the amendments within 28 days of this decision.

Orders

60 For the reasons set out above the Tribunal makes the following orders:

Application No 053279 :

The decision of the respondent is set aside and in substitution thereof a decision to:

a) remit, pursuant to s.63(3)(d) of the Administrative Decisions Tribunal Act 1997, the matter of the applicant’s request for a copy of the applicant’s original handwritten Officer Report, for the respondent to conduct a systematic and thorough search for that Report in accordance with the recommendations contained in these reasons for decision;

b) the respondent to reconsider the matter as remitted above, within 28 days of this decision; and

c) grant the applicant access to a full copy of Information Report TFS 085.99 in so far as it relates to the verbatim account of the applicant’s Officer Report. That full copy to be provided within 28 days of this decision.

Applications No 053347:

1. The decision of the respondent is set aside and in substitution thereof a decision to amend the Memorandum of Deputy Superintendent Maa dated 20 August 2003 in accordance with these reasons for decision as set out in para [55] and [56].

2. The respondent to provide the applicant with a copy of the amendments that have been made to the hard copies and the computerised versions of the Memorandum within 28 days of this decision.