FK v Chief Executive, Roads and Traffic Authority

[2003] NSWADT 57

CITATION:	FK -v- Chief Executive, Roads and Traffic Authority [2003] NSWADT 57
DIVISION:	General Division
PARTIES:	APPLICANT FK RESPONDENT Chief Executive, Roads and Traffic Authority
FILE NUMBER:	023191
HEARING DATES:	17/02/2003
SUBMISSIONS CLOSED:	02/17/2003
DATE OF DECISION:	02/17/2003
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Beesley -v- Commissioner of Police, NSW Police Service [2000] NSWADT 52 B -v- Commissioner of Police, NSW Police Service [2000] NSWADT 168 DQ -v- Commissioner of Police, NSW Police Service [2002] NSWADT 215 DZ -v- Commissioner of Police, NSW Police Service [2002] NSWADT 274
REPRESENTATION:	APPLICANT In person RESPONDENT T F Robertson SC, barrister
ORDERS:	ORDERS MADE ON 17 FEBRUARY 2003; 1. Application dismissed. Decision under review affirmed.

1 The following is a revised version of reasons for decision delivered ex tempore at the conclusion of the hearing of Mr FK’s application for review. He applied for review of a determination made by the Roads and Traffic Authority (RTA) refusing access to certain documents that he had requested pursuant to the Freedom of Information Act 1989.

2 The application for review was filed on 23 August 2002, following internal review by the RTA of its original determination.

3 The Tribunal has been assisted by a detailed chronology of the history of Mr FK's dealings with the RTA which was provided by Mr Robertson SC, counsel for the RTA.

4 In response to an earlier request, the RTA provided Mr FK with a copy of the record held in his name on its driver licence history database. Mr FK has questioned various elements of that record. He has queried a series of entries which show him as having held a driver licence since 1976.

5 The two requests that the RTA refused on the basis that it could not locate any records that met the request were:

(1) for a copy of any application for a driver licence bearing his name and signature in connection with licence number 9433WL; and to the address that was stated in that application.

(2) for any RTA record in the name of ‘Smith’ [a pseudonym used in these published reasons in place of an actual name given by Mr FK].

6 The only issue raised formally by the application for review was that of whether the RTA had undertaken an adequate search for the records requested by Mr FK. The Tribunal has explained the approach that it takes to this question in a number of cases starting with Beesley -v- Commissioner of Police, NSW Police Service [2000] NSWADT 52. See also B -v- Commissioner of Police, NSW Police Service [2000] NSWADT 168, DQ -v-Commissioner of Police, NSW Police Service [2002] NSWADT 215 and DZ -v- Commissioner of Police, NSW Police Service [2002] NSWADT 274.

7 As it transpired, Mr FK raised a number of issues in the course of the planning meetings and at the hearing. Some attempt was made to respond to these issues, on the part of the RTA through Mr Robertson, and also on the part of the Tribunal.

8 To understand Mr FK’s concerns, it is necessary to refer briefly to his personal history as he recounted it at hearing. He is Australian-born, has spent most of his adult life in the Merchant Navy and regards himself as a resident of England. He visits Australia frequently, often for relatively significant periods of time. He disputes that he has ever been licensed to drive in Australia. He claims that he has always driven in Australia under the rules that permit visitors with overseas licences to drive without a local licence.

9 The RTA stated that it did have a record on the DRIVES system under the name of Mr FK (which has been annexed to the affidavit of Mr Carruthers that it filed in the proceedings). That record under the name of Mr FK does show a short history of issuance of unrestricted licences commencing in 30 August 1976 when Mr FK was 43 years old.

10 Mr FK’s position, as explained earlier, is that he in fact never held an RTA licence (or as it was then known a Department of Motor Transport licence). In a sense his FOI request for the underlying application papers is a request through which he seeks to in fact demonstrate that there is no record. This is to be contrasted with the usual FOI request that an agency might be expected to encounter, and that is a request from someone who believes that the relevant record actually exists.

11 So I think that is one of the oddities that has bedevilled this case - the FOI access system is in fact being used by the applicant to seek to prove the non-existence of a record.

12 On the other hand the licence information held in the DRIVES system would tend to point towards the existence of the record sought (a driver’s licence application in his name) without necessarily proving it.

13 Mr Jennings of the RTA gave evidence today from his long history of involvement with RTA record keeping as to the various systems that have been in use. As at 1976 records were kept in paper form. Subsequently the information held on paper records has been transferred to computer databases, first of all the KICS system then the DRIVES system and along the way decisions were taken to destroy most underlying paper records.

14 I accept Mr Jennings’ evidence as providing a reasonable administrative explanation for the inability to produce a record in the terms of the application. As I have said we have got the oddity in this case that the application is in fact made by an applicant whose belief is that the record he has requested does not exist.

15 It does not seem to me that the FOI Act is actually set up as a statute that is designed to give definitive replies to requests of that kind; especially in circumstances where the agency has its own administrative record which tends to suggest, based on historical practice, that there would have been an underlying record.

16 Now, as to the second matter in issue, that is the existence or otherwise of information regarding an RTA customer record in the name of ‘Smith’. The RTA response is simply that its system as it exists today does not disclose any such record.

17 It seems to me that that is really a complete answer to that part of Mr FK’s request.

Other Issues

18 There has been a range of other issues canvassed in this case beyond the question of whether the search inquiries made by the RTA were sufficient.

19 Those questions have to do, as best I can understand it, with the persistent assertion by Mr FK that he is a driver in good standing in Australia; and he is discontented over the suggestion made to him by the police after a recent accident that he was an unlicensed and therefore a disqualified driver in Australia.

20 Again, the FOI proceeding that is before us today does not really provide a vehicle for addressing that question.

21 Mr FK is also concerned, as I understand it, that there are records existing in Government Agencies, in particular, the Police, linking his present name to the name of ‘Smith’. He has indicated today that in fact his original birth name was ‘Smith’; and that in 1968 approximately he changed his name by deed poll from ‘Smith’ to FK.

22 The background to this concern relates to the recent accident. According to him the Police database showed a possible connection between his name now and his former name of Smith. He has a copy of a record provided by the Police showing that link.

23 He is concerned at how records today would still maintain a link between his current name and his old name.

24 Mr Robertson helpfully from my point of view, based on his experience in criminal law, has put forward a couple of possible explanations. He has not done that by way of evidence, but just as suggestions as to how police systems sometimes make links between peoples’ current name and their past names.

25 Mr FK referred to the Police record that he had obtained, that describe him as a person who uses ‘aliases’, one of which is ‘Smith’. That is obviously, if understood in that way, very offensive to a person who does not use aliases.

26 On the other hand it may simply be a term used in police circles to describe other names that a person may have used or have held officially. If it is used with that connotation it may be that there is nothing offensive about it. Because in this circumstance, Mr FK, does acknowledge that there was a time in his life until he was aged about 35 that he was known by the other name.

CONCLUSION

27 I may not have managed to tick off all the issues that are of concern to Mr FK, but so far as matters that were formally before the Tribunal today the issues are narrow ones.

28 They are simply issues of whether the RTA has sought properly to respond to Mr FK's application and has done so by means of an adequate search. I am satisfied from the material before me that it has.

29 There was really no significant material put in contradiction by Mr FK. He has referred me to, I think notorious, information connected with the administration of the old Department of Motor Transport and the RTA to do with a generation of false records; and the misuse of licence information - a set of circumstances that was not at one time confined in Australia to the New South Wales agency.

30 But it seems to me that that state of affairs as it once existed does not bear in any relevant way on the matter we are dealing with here today.

31 These observations dispose of the application.

Further Comments

32 I make the following comments in an attempt to bring some closure to the concerns raised by Mr FK.

Accuracy of the RTA Driver History Record

33 I have got no reason to doubt that we are dealing with a record today which is thought by the RTA to be an accurate and reliable record (i.e. the driver history record, which includes references to court hearings and convictions).

34 If Mr FK has issues that he wishes to continue to pursue by way of the accuracy of that record and its amendment, Mr Robertson, I think has helpfully indicated what those courses of action might be.

35 Mr FK was critical of two aspects of the record – the Court history, information provided to the RTA by the Attorney General’s Department; and the history against his name showing him as holding various RTA licences.

The Court History

36 As I understand what Mr FK said today, he accepts that one entry that is in the RTA driver history record that relates to the Sydney District Court event of 1990 is accurate; but he does not accept the other entries as to other driving offences as being ones that relate to him.

37 The RTA is simply a secondary record keeper when it comes to the Court listings found in its records. That information is supplied to it by the Attorney General’s Department. If we were to revisit this case or another case like it, I think we would be looking to have the Attorney General's Department really deal with issues as to the adequacy of the Court data.

38 It may be that Mr FK is right, given the history that seems to surround the motor vehicle with which he is connected in Australia [he said that it was used by several overseas resident people who had cause to stay in Sydney from time to time in connection with their work, such as airline pilots], that there may be some possibility of misrecording of court information under his name.

39 But I think ultimately that will have to be taken up through the Attorney General's Department and they may in turn want to involve the Police.

The RTA Licence History

40 Then there is an issue about the accuracy or otherwise of the entries in respect of the unrestricted licences. Mr FK says, as I understand it, that those entries should not be there at all. As noted earlier, his position is that he has never taken out a licence in Australia. Again, that is a matter I think that will have to be taken up separately with the RTA.

41 I can not myself see any difficulty in having the record include a notation that simply records his point of view, if that has not already occurred.

42 In concluding I directed the following remarks to Mr FK.

43 I should indicate finally, Mr FK, that I appreciate the detail of your submissions in the matter. Also I have not read the sealed envelope [as the contents do not bear on the adequacy of search issue. The envelope contained various papers going to his claim of alleged inaccuracy and his licence situation in England, and other matters]. I have heard what you have had to say about it today. My intention will be to return it to you. I do not see any need for it to remain on the Tribunal’s file.

44 But just to conclude, as I see matters today, basically the application you put in has been properly responded to by the RTA. You may have other rights arising from the second FOI application or arising from the Privacy Act application. They are not before us today.

45 My sense of it is that your issues really lie with the state of underlying records when it comes to the court entries, and when it comes to the history of the licences issued to you.

46 You have one view, they have another view. It is not clear to me how it can be resolved otherwise than by notation on the RTA file. So I just say that as a set of observations designed to bring some end to this matter as it involves the RTA.

47 I can not take the issue obviously any further today of how the ‘Smith’ name and your present name have become linked. But I think the one thing I have clarified today is that the ‘Smith’ name was a prior name of yours which I had not understood previously.

48 I will leave the proceedings at that. Your application, Mr FK, on this occasion, is dismissed.