Hemeon v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 201

CITATION:	Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201
DIVISION:	General Division
PARTIES:	APPLICANT Rodney James Hemeon RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013305
HEARING DATES:	17/05/02
SUBMISSIONS CLOSED:	06/19/2002
DATE OF DECISION:	10/15/2002
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - adequacy of search - access to documents - personal affairs - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - personal affairs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Victims Support and Rehabilitation Act 1996
CASES CITED:	Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464 Ainsworth and Criminal Justice Commission; A and B (third parties) [1999] QICmr 10 (17 December 1999) B v Commissioner of Police, New South Wales Police Service [2000] NSWADT 168 Perrin's case (Commissioner of Police v District Court of NSW & anor) (1993) 31 NSWLR 606 Re Perton and Department of Manufacturing and Industry Development (1991) 5 VAR 149 Re Anderson (1986) 11 ALD 355
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	1 The agency's determination is affirmed.

1 On 3 January 2001 an incident occurred at the applicant’s home. The applicant states that several people came to his front door and eventually forced their way into his house, and an assault ensued. He states that his wife, who had been asleep, was woken up, and saw him being hit by these people. He described these people as ‘heroin addicts’ and ‘junkies’ who lived nearby. He and his wife made several calls to the police emergency number ‘000’ and two police cars attended, and a total (the applicant says) of six officers.

2 There was a police investigation. Statements were taken. Ultimately the police decided not to lay any charges. The applicant disagrees with the police decision, of which he was advised in May. On 20 June 2001 the agency received a request from the applicant under the Freedom of Information Act 1989 (FOIA). The request was a voluminous one, and is very detailed. It will not be set out in full here. It is attached to the chronology handed up by the agency at hearing. In summary, it covered, with some exclusions, all documents relating to the events of 3 January 2001 and their subsequent investigation by police; as well as documents relating to another incident at a nearby house relating to an alleged attack on the applicant’s son and father. The request specifically sought any tape recording of 000 calls made from the applicant’s home between 4.10 and 4.50 pm on the afternoon of 3 January 2001. It also sought records of any communications between the police and the Victims Compensation Tribunal (VCT) and reports supplied to the VCT arising from counselling sessions involving the applicant and his wife.

3 The agency’s determination was issued on 3 September 2001. There was a request for internal review. The internal review determination was issued on 29 October 2001. Under the original determination, 3 documents were released in full and 3 were released subject to deletions of exempt matter. Ten documents were not released. The exemptions relied upon pursuant to FOIA, s 25(1)(a) were cl 4(1)(a) (prejudice criminal investigation) and cl 13(b) (material obtained in confidence), Schedule 1.

4 In the determination on internal review the original determination was affirmed. The primary exemption relied upon was cl 6 (unreasonable disclosure of personal affairs). There was no reference to cl 4(1)(a). There was a reference to cl 4(1)(b) (informer protection). There were a number of ‘additional issues’ raised by the applicant in response to the original determination to which the agency responded. These matters went to matters to do with police conduct that go beyond the parameters of the Tribunal’s jurisdiction under FOIA, and will not be addressed in this decision.

5 On 13 December 2001 the applicant lodged the present application for review of the determination. In his view, a number of later disturbances at his home have been perpetrated by the people who were involved in the events of 3 January 2001. He attributes this to what he sees as the failure of the police to take action against the people who entered his home on 3 January 2001. In his application for review he lists various alleged events of harassment over the January-November period of 2001.

6 The Tribunal held several planning meetings early in 2002, leading to the agency making further inquiries. By letter dated 20 March 2002 two more documents were provided – a statement made by SenCon Roche; and a document comprising covering memorandum from Newcastle Communications Centre, 1 March 2002, a Computerised Incident Despatch System (CIDS) entry and pages 068 and 069 of the relevant Police Radio Log Book. The CIDS message refers to receipt of an 000 call, and the broadcast of a message to police vehicle BW 43 at 16:20, acknowledged 16:25 and to D162 at 16:30, acknowledged 16:30. In the case of the Police Radio Log Book all entries on p 068 are deleted and on p 069 all entries except for one are deleted. The disclosed entry shows ‘55’ in the left column, BW 43 next to it and under the column ‘Message’ the description ‘C’. In the covering memorandum it is stated that there were no transmissions logged between the relevant call signs and the radio operator.

7 The applicant and his wife are applicants to the VCT for compensation under the Victims Support and Rehabilitation Act 1996. As at the time of hearing of this application, they had not been successful in obtaining compensation. The applicant sees the material that he is seeking to obtain under FOIA as likely to assist in establishing that he and his wife were victims of a crime on 3 January 2001. He also says that there is a police report to the VCT depicting him as an attacker in the events of 3 January 2001.

8 The agency carries the burden of justifying its determination: FOIA s 61. As cl 4(1)(a) and (b), which were initially relied upon, belong to the ‘restricted documents’ category of exemptions (see Sched 1, Part 1; FOIA s 57), the Tribunal enquired as to whether the Premier (as Minister administering FOIA) intended to make any submissions, as contemplated by s 57. The Tribunal was advised that the Premier did not wish to make any submissions.

9 The agency presented written and oral submissions. In its written submissions it relied only on cl 6 (unreasonable disclosure of personal affairs) as the basis for the various deletions. It did not seek to rely on any cl 4(1) grounds of exemption. It emerged at hearing (the applicant participated by telephone) that the applicant essentially accepted the reasons giving for deleting names from the documents partly disclosed. His main concern was whether all documents had been located. He referred in that regard to the fact that further documents had been located subsequent to the original determination and made available to him. He also expressed concern over the general adequacy of the agency’s response to his requests, and asserted for example that three police cars had attended on the day, not only BW 43 and D 162 but also BW 18.

Adequacy of Search

10 The original determination included release of a cassette recording described as ‘detailing four 000 calls’. These calls are the subject of COPS system entries. The print-outs from this database were also fully disclosed. The print-outs record entries at 16:17, 16:18, 16:23 and 16:25 on 3 January 2001. Each of the documents includes a section which in each case states that Senior Constable Mills and a Probationary Constable Dillon attended the premises between 16:42 and 17:01.

11 The applicant had prior to hearing forwarded to the Tribunal an audio tape which he said showed that the police material was not accurate. He had also sent a tape to the solicitor for the agency (Ms Paterson). The Tribunal asked the agency to take the tapes away to have it forensically examined so as to ascertain whether it might shed any light on the question of whether the police material was or was not accurate.

12 On 18 June 2002, the agency filed a statement in the Tribunal made by a senior communications officer at the Sydney Police Centre, Malcolm McGregor. He concluded that the tapes were each identical, but were not official police tapes. They were of poor quality, and had been affected by obvious dubbing and recording over. He stated: ‘In my opinion, these tapes are tapes that someone has edited or ‘cut’ from material that was sourced from a ‘000’ call and a Fire Brigade conversation.’ He also confirmed that police and Telstra records show that the police received three calls, and that there was another call from the Fire Brigade to the police in respect of the applicant’s home address. Telstra records also show two calls forwarded to the Fire Brigade.

13 The applicant responded to this material by letter dated 19 June 2002 to the Tribunal. In the letter he describes the tape as the ‘re-recorded tape given to us by police’. He says that there are internal references in the recorded conversations that show that there must have been at least five calls.

14 In the letter he set out the sequence of the calls that he believes he and his wife made: 16.12, first ‘000’ call; 16.13, ‘000’ call to the Fire Department; 16.17, second ‘000’ call to police (he says this is missing); third call, 16.18; fourth call, 16.23 (he says this is missing); fifth call, 16.25.

15 As I understand it, he sees the two missing calls as important because they support his case in relation to the nature of the attacks, their gravity and his entitlement to be compensated. They also add strength to his concern that no charges were laid. He is critical of the slowness of the police response to the calls, and that it took them, he says, 30 minutes to arrive.

16 In that letter he also re-expressed his concern that a police notebook record of a statement given on the day, he believes, by one of the persons (who he describes as the ‘main attacker’ and has been described by him in other correspondence as a ‘drug dealer’) has not been located. He did not press objections to the deletions to most of the documents released.

17 The Tribunal is entitled to examine the question of whether an adequate search for records sought by way of an FOI request has been undertaken: see generally Beesley v Commissioner of Police [2000] NSWADT 52; a position which accords with the interpretation adopted in relation to the similar provisions found in the legislation in the Australian Capital Territory, see Beesley at [14] to [20].

18 The approach to be taken by the Tribunal in addressing that issue is dealt with in Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464; applied in Ainsworth and Criminal Justice Commission; A and B (third parties) [1999] QICmr 10 (17 December 1999) and B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168.

19 In Shepherd the Queensland Information Commissioner said at [19] the questions for consideration were:

‘(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.’

: The police have supplied a statement dated 5 January 2002 made by a person whose identity has been suppressed. The applicant believes that this is a statement by his main attacker, but he is firmly of the view that there should also be a notebook record of what he believes he said on 3 January 2002. He said he wanted the notebook material, as he believed the main attacker had incriminated himself in that statement, and that information would help him in his claim to the VCT.

21 The agency evidence relevant to this matter, and to the general question of the adequacy of the police search is contained in an affidavit filed 29 April 2002 by Sergeant Matthew Dakin, who is an officer responsible for FOI compliance issues. In his affidavit he sets out in detail the steps taken by the agency to locate documents affected by the applicant’s request as originally expressed (the request dated 20 June 2001), as expanded after the first notice of determination (determination given 3 September 2001, expanded request 25 September 2001), and as expanded after the determination on internal review (29 October 2001, expanded request, 3 November 2001). Further material was released to the applicant by way of letter dated 20 March 2002. The affidavit annexes various memorandums issued by the FOI compliance unit and responses received.

22 Sergeant Dakin states in conclusion that he is of the view that all reasonable steps have been taken to obtain all documents falling within the ambit of the request. The Tribunal is satisfied by the explanation.

23 The ‘Missing’ Calls: The evidence from Mr McGregor, of the Sydney Police Centre, has been outlined above as has the reply from the applicant.

24 It is not possible for the Tribunal to reach any firm conclusion as to whether there were two other calls to ‘000’. It may be that the answer is to be found in the possibility, canvassed at hearing, that there were two calls that went to 000 but were immediately redirected to the Fire Brigade; and there is no separate 000 record.

25 The Tribunal is satisfied with the agency’s explanation.

Documents Released with Deletions

26 The Tribunal’s understanding of the applicant’s position at hearing was that he was no longer pressing any claim in relation to the agency’s reliance on the personal affairs exemption and the law enforcement exemption to justify non-disclosure of the deleted portions of many other documents that have been located and released. But as submissions were put by the agency on this matter, and out of caution, the Tribunal will briefly deal with this aspect of the case.

27 (1): A 7-page COPS entry relating to the incident containing a series of action reports from the attending police and subsequent police who conducted interviews. The first entry of substance made at 01:51 on 4 January 2001 states that the incident arose from an ongoing problem and allegations were made by both parties as to assaults and harassment. It is then noted that all parties are to attend the local Police Station on 5 January 2001 to make statements. The officer in charge (SenCon Mills) entered a full report of his investigation on 9 April 2001 at 08:45.

28 It gives a detailed account of what he observed on attending the scene, and what he was told then and by way of statements about the events, what had triggered them and what they involved. All references to the names of persons are deleted except for the name of the applicant.

29 The report expresses the conclusion that that there is insufficient evidence to prove a prima facie case against any individual; and that based on the statements obtained and the physical evidence available there is insufficient evidence to support one party’s version over another’s. There is a further entry for 12 May 2001 noting that the applicant had expressed concern over the outcome of the investigation and pressing for the matters to be taken to court.

30 (2): The second document comprises a covering memorandum and an attachment. The attachment is a report dated 21 January 2001 from SenCon Mills to his supervisor and the memorandum is the reply from A/Sgt Akers. SenCon Mills’ report has three deletions: the names of the ‘alleged offenders’; the name of a person who supplied ‘an initial version of events’; and the name of a person at the scene (not being the applicant) who the police observed as having injuries. The supervisor’s memorandum in reply is released with one deletion: the name of a person from whom it was considered a statement should be obtained as the person was an independent witness.

31 (3), (4), (5), (6), (7), (8) and (9): A further 7 documents were released with similar deletions following internal review, being-

(3), (4) and (5): 3 witness statements;
(6): a memorandum from SenCon Mills dated 29 June 2001 responding to request from local area command for relevant documents in relation to the applicant’s FOI request;
(7): the first page of a sworn statement from SenCon Roche as to making copies of the audio cassette, which deletes the officer’s telephone number only;
(8): a memorandum from the same officer dealing with the same subject, which has no apparent deletions; and
(9): a series of pages being copies of the notebook entries made by investigating police.

32 The final document mentioned (the notebook entries) commences with a series of deletions which appear to relate to the personal particulars, name, date of birth, etc of each person of interest. Then the entries continue with the handwritten record of a statement commencing with a reference to time, ‘10.30am’. The next pages come, it would appear from the other officer’s notebook (the handwriting is different) and is the record of a statement made under the time ‘5.20pm’. References to names are deleted.

33 (10): The Police Radio Log, pages 68 and 69 (see para [6] of these reasons).

34 The Tribunal was provided in confidence with a full version of documents (1) to (10).

35 I have perused the material, and the deletions are consistent with the agency’s explanation.

Unreasonable Disclosure of Personal Affairs

36 This was the only exemption relied upon at hearing.

‘ 6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.’

37 It is reasonably apparent from the material released that the statements are statements from people involved in the events of 3 January 2001. The applicant is able to work out for himself who the authors are likely to be. If access were given under FOI he would know definitively. On this basis it might be argued that release to him of the unedited statements would not involve an ‘unreasonable’ disclosure. The difficulty with this position is that release under FOI is in effect release to the world, not release to an isolated applicant.

38 In this case the first issue is whether the disclosure of the names of people who make statements to police about events that are subject to police investigation involves a disclosure of information about their personal affairs. The second issue is whether the disclosure of the names of other persons to whom they refer in their statements would involve the disclosure of information about those persons’ personal affairs.

39 The question of whether a particular item of information about an individual falls within the description of ‘personal affairs’ can not be resolved by a fixed rule. The answer will vary depending on the context. This is clearly illustrated in the leading case, Perrin’s case (Commissioner of Police v District Court of NSW & anor) (1993) 31 NSWLR 606. Police investigative documents were released to the applicant under FOI, but the police officers’ names were deleted. The review tribunal, at that time the District Court, upheld an appeal by the applicant, Mr Perrin, against the deletions. The Court of Appeal dismissed the agency’s appeal against that decision. Kirby P at 622 endorsed as correct the following statement of the District Court judge:

‘If [counsel for the Commissioner] is right, the disclosure by the Commissioner of the name, rank and station of an officer who, in the course of his official duties, investigated a motor accident would amount to a disclosure of information concerning his personal affairs. In my view the information disclosed does not affect the officer as an individual; it affects him only in his capacity as an officer of a disciplined force, whose lot was intended to be happy. In the example I have given it would be otherwise if the disclosure included the officer’s private address, details of his domestic situation or the type of car he drives when off duty.’

40 At 622-626 Kirby P surveyed the case law on ‘information concerning personal affairs’. We will not reiterate that learning here, some of which was referred to in the agency’s submissions in this case. See also Cossins, Annotated Freedom of Information Act New South Wales (1997) [106.11].

41 Professor Bayne submits that one way to approach these issues is to ask ‘whether or not the subject of the information could reasonably expect to control the dissemination of the information to any member of the public’ (The Concepts of ‘Information relating to Personal Affairs’ and ‘Personal Information’, (1994) 1 AJAL 226 at 229. The word ‘affairs’ plays a role in determining the scope of the protection. In Perrin’s case at 625 Kirby P concluded his discussion stating: ‘[T]he name of an officer or employee doing more than the apparent duties of that person could not properly be classified as information concerning the ‘personal affairs’ of that person. The affairs disclosed are not that person’s affairs but the affairs of an agency.’ In so far as a contrary view was adopted in the case of Re Perton and Department of Manufacturing and Industry Development (1991) 5 VAR 149, Kirby P rejected that decision.

42 The events of 3 January 2001 concerned a conflict between people living near each other in the same neighbourhood. They occurred in the course of the daily interaction between people in the course of their private lives. The applicant sees what occurred as serious criminal conduct. On the other hand the persons who made the statements present the events as belonging to a history of conflict and tension between neighbours, and depict the applicant as an aggressor even though they admit they went to his home.

43 There was at least one independent witness to part (at least) of these events, and the events may well be more widely known. In their aftermath, they were attended by the police.

44 The approach adopted by the agency seeks to preserve the anonymity of the makers of the statements while giving the applicant the detail of what was said by the makers of the statements except in relation to the identities of other people mentioned in the statements, where anonymity is again preserved.

45 Viewed against this context, my conclusion is that disclosure of the names of the makers of the statements and disclosure of the names of the people to whom they refer would involve the ‘disclosure of information concerning the personal affairs of …[a] person’.

46 There is a more difficult question, as I see it, as to whether such a disclosure would be an ‘unreasonable’ disclosure at least in respect of the makers of the statements. As noted earlier, the applicant could make an informed guess from perusing the contents of the statements and from his knowledge of the people with whom there has been conflict as to the identities that have been suppressed. He may well also be able to do this in relation to the deleted identities of the other people to whom reference was made in the statements.

47 A number of considerations favour the conclusion that release of the identity information would be unreasonable in the present circumstances:

· The documents were generated, according to the agency, during an investigation by police in relation to allegations of illicit drug use, trespass and physical altercation.

· The release of the identities of the authors could lead to them being publicly named in connection with such allegations.

· Until such time as charges are laid and announced in open court, people are entitled to be protected from being publicly named as suspected criminals. See for example Re Anderson (1986) 11 ALD 355.

· Release of the names may contribute to the creation or exacerbation of tension between neighbours.

48 Against these considerations, the applicant submits that he needs the information to progress a claim before the VCT for compensation in relation to the events of 3 January 2001. This consideration is not a strong one. That Tribunal operates under statute, and has wide powers to inform itself. It can, if it sees fit, compel disclosure of the complete documents free of deletions: see Victims Support and Rehabilitation Act 1996, s 30 (wide powers of inquiry); and Schedule 2, cl 16 (Tribunal may compel attendance of witnesses).

49 For the above reasons and following inspection of the complete documents (submitted in confidence), I am satisfied that cl 6 is applicable to all of the information deleted with one possible exception. The document referred to as (7) above has the telephone number of SenCon Roche deleted. On the material before me, I am not able to reach a conclusion as to whether it falls within the scope of the exemption. If it is a private, home telephone number it would fall within the scope of the exemption. If it is an official number, it may not. Rather than reconvene, I will ask the agency to reconsider that question.

Conclusion

50 I have expressed a doubt as to whether one minor item of information has been appropriately withheld. Rather than seek to deal with this by way of a formal order, I will leave it to the agency to reconsider its determination in that regard.

Order

The agency’s determination is affirmed.