Jacobs v Commissioner of Police, NSW Police Force

[2013] NSWADT 54

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Jacobs v Commissioner of Police, NSW Police Force [2013] NSWADT 54

Hearing dates:

26 February 2012

Decision date:

07 March 2013

Jurisdiction:

General Division

Before:

P H Molony, Judicial Member

Decision:

1. The application for an extension of time is refused.

2. The application for ADT Review is dismissed for want of jurisdiction.

Catchwords:

Government Information Public Access - time for seeking ADT review - extension of time

Legislation Cited:

Government Information (Public Access) Act 2009
Government Information (Public Access) Amendment Act 2012

Cases Cited:

ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271
Edwards v Department of Family and Community Services [2012] NSWADT 60
R v Jacobs [2009] NSWSC 235

Category:

Principal judgment

Parties:

Applicant - Greg Jacobs
Respondent - Commissioner of Police, NSW Police Force

Representation:

Applicant - in person
Respondent - K Rose

File Number(s):

123345

Publication restriction:

Nil

reasons for decision

Introduction

1. One 22 January, 2013 Mr Jacobs applied to the Tribunal to review a decision made by the Commissioner of Police (the Agency) on 18 April, 2012 under the Government Information (Public Access) Act 2009 (the GIPA Act). That was a reconsideration decision under s 93(3) and was made following a review of a previous internal review decision by the Office of the Information Commissioner. The Information Commissioner's reconsideration recommendations were made on 23 February 2012.

1. On 4 December 2012 Mr Jacobs filed an application to review the decision of 18 April 2012 with the Tribunal.

1. Following a planning meeting on 22 January, 2013 Mr Jacobs' application was set down for a preliminary hearing before me on 23 February, 2013 to determine:

(a) whether Mr Jacobs' application to the Tribunal was out of time; and,

(b) if so, whether the tribunal should extend time for the making of the application under section 101(4) of the GIPA Act.

1. These reasons relate to those issues.

The Evidence

1. In his statement dated 13 February, 2013 Senior Sgt Darren Brand, the coordinator of the Information Access and Subpoena Unit of the New South Wales Police Force, said that on 18 April, 2012 he finalised a reconsideration decision with respect to Mr Jacobs' access application. This occurred following receipt and consideration by the Agency of the Information Commissioner's recommendations. Mr Brand said that the documents being provided to Mr Jacobs in that decisions were scanned and burned onto a CD. The CD was attached to the notice of decision and posted to Mr Jacobs by ordinary post on 18 April 2012.

1. Mr Jacobs' evidence was that he received the CD, but that there was no notice of decision attached. When pressed on this in cross-examination, he said he had, "no clear recollection of getting the CD." He imagined it came in an envelope marked from the Police.

1. It should be explained that the information Mr Jacobs had sought access to related to events that occurred at his home on 10 March 2008. As a result of those events. Mr Jacobs was charged with the murder of his wife. He was tried before a judge alone, was found not guilty and acquitted: see R v Jacobs [2009] NSWSC 235. He explained that this had been a very traumatic experience. Dealing with issues relating to it still causes him to become very emotional.

1. Mr Jacobs' evidence was that when he received the CD in April 2012 he immediately put it in his computer, but had difficulty in reading the contents as he found he was swamped by his own emotions. At the time of receipt he thought that the Police were supplying additional documents in the CD in accordance with the recommendation of the Information Commissioner. When he looked further into the documents on the CD he realised that a lot were missing. When pressed as to when this occurred, he said he had first realised documents were missing in October 2012. This I note is some five months after he received the CD.

1. Mr Jacobs then contacted the Office of the Information Commissioner regarding the missing documents. He was advised to it take up with the Police. He then rang the Agency. He was told that he had been refused access to documents in accordance with the reconsideration decision made on 18 April 2012, which decision had been sent to him on that date. He asked for a copy of the decision to be sent to him again. He received it on 31 October 2012 together with another copy of the CD.

1. On 4 December 2012, he filed his application seeking review in this Tribunal.

1. Mr Jacobs's attention was drawn to paragraphs 96, 98 and 99 of the Information Commissioner's review report. In paragraph 96 the report makes a number of recommendations for the Agency to follow in "making a new decision. Paragraph 98 makes it clear that the information Commissioner's recommendations are not binding or reviewable under the GIPA Act. Paragraph 99 advised that, "if Mr Jacobs is dissatisfied with our recommendations or Police's response to our recommendations, Mr Jacobs may ask the ADT to review Police's Decision." Paragraph 100 advised Mr Jacobs that any application for ADT review "can be made up to four weeks from the date of this report (that is by 22 March 2012). After that date, the ADT can only review the decision if it agrees to extend the deadline."

1. Mr Jacobs agreed that he had read the Information Commissioner's review report, but insisted that his understanding was that the Agency would follow the recommendation made in the report. That is not the case.

Issues

1. The issues to be determined in this case are:

When was Mr Jacobs given the notice of decision dated 18 April 2012?

• When was the last day on which Mr Jacobs could apply for an ADT review within time?
• Whether the Tribunal should extend time for Mr Jacobs to make his ADT review application?

Relevant Legislation

1. Section 101 of the GIPA Act provides -

(1) An application for ADT review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for ADT review).

(2) If the decision is the subject of review by the Information Commissioner, an application for ADT review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review.

(3) If an application for ADT review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner's review is to end.

(4) The ADT may, on application by a person wanting to make an application for ADT review out of time, extend the time for the making of such an application by the person if the ADT is of the opinion that the person has provided a reasonable excuse for the delay in making the application.

(5) An application to extend the time for the making of an application for ADT review must be in writing unless the ADT dispenses with the requirement in a particular case.

(6) The time for making an application for ADT review may be extended under this section even if that time has expired.

1. Until its amendment by the Government Information (Public Access) Amendment Act 2012, with effect from 19 March 2012, the time for seeking a review under subsection (1) was "8 weeks" and under subsection (2) was "three weeks."

1. In addition section 126 of the GIPA Act contains relevant provisions with respect to the giving of notices by an agency. It provides -

(1A) A notice or notification under this Act that an agency is required or permitted to give a person may be given by:

(a) posting the notice to the person at the postal address provided by the person for correspondence in connection with the matter concerned, or

(b) such other method as may be agreed by the agency and the person.

(2) A notice or notification under this Act that is given by an agency to a person by being posted to the person at the postal address provided by the person for correspondence in connection with the matter concerned is considered to have been given to the person when it is posted by the agency.

When was Mr Jacobs given the notice of decision dated 18 April 2012?

1. Senior Sergeant Brand's evidence is that he posted the notice of decision and CD to Mr Jacobs on 18 April 2012. If his evidence is accepted then section 126(2) provides that is the date on which notice of the decision was given.

1. Mr Jacobs disputes this. First, he said that he did not receive a copy of the notice of decision with the CD, although when probed about this he had no clear recollection of getting the CD. That being the case, I do not consider his evidence with respect to the circumstances of his receipt of the CD and what came with it reliable.

1. Secondly, Mr Jacobs argued that the evidence of Sergeants of Police is not to be trusted. He citied personal experience with Sergeants relating to his murder charges as evidence of this. As I explained to Mr Jacobs, this is not a proper basis for rejecting the evidence of Senior Sergeant Brand.

1. It follows that I accept the evidence of Senior Sergeant Brand and find that the notice of decision was given on 18 April 2012.

The last day on which Mr Jacobs could apply for an ADT review within time

1. In the circumstances of Mr Jacobs's case there is a question as to which of the time limits for seeking an ADT review applies? Is it 40 working days form the date the reconsideration decision of 18 April 2012 was given (under s 101(1)), or 20 working days after he was notified of the completion of the Information Commissioner's review in accordance with (under s 101(2))? Both are capable of applying in the circumstance of a reconsideration decision following recommendations by the Information Commissioner.

1. This is so because s 101(1) applies to a "notice of the decision to which the review relates" and does not require that notice relate to an internal review. The language used applies equally to a reconsideration following recommendations by the Information Commissioner under s 93(3). Similarly, there can be no doubt that Mr Jacobs's application for an ADT review was made after Mr Jacobs notified of the completion of the Information Commissioner's review, indicating that the time limit is s 102(2) applies.

1. Which time limit applies was an issue that was not addressed by the parties. They assumed that the 40 working day time limit applied.

1. In my opinion this conundrum is best resolved by reference to the object of the GIPA Act. Section 3 provides -

(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2) It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information

1. Given the objects of the Act and the express legislative direction that the Act be interpreted to facilitate those objects, it is my opinion that the 40 working day time limit in s 101(1) applies. Such an interpretation enhances those objects by giving parties who have sought a review by the Information Commissioner forty days from the date a reconsideration decision is given to apply to the Tribunal.

1. It should be noted, however, that section 93(2) provides that the Agency "may" reconsider a decision having received a reconsideration recommendation from the Information Commissioner. It is not unknown for agencies to decide not to undertake a reconsideration, in which case the 20 working day time limit for ADT Reviews is likely to apply. This is an anomaly in the Act and one that can lead unwary applicants into difficulty.

1. It follows that Mr Jacobs had 40 working days from 18 April 2011 in which to make his application for ADT Review. The last day was therefore 15 June 2012.

1. Mr Jacobs did not make seek an ADT Review until 4 December 2012, nearly six months later.

Should time be extended for Mr Jacobs to make his ADT review application?

1. For the Tribunal to consider exercising the discretion to extend time section 101(4) requires that Mr Jacobs provide a reasonable excuse for the delay in making the application. It is well established that other factors such as the merits of the case, the length of the delay, any prejudice to the parties, and the public interest in accepting the late application are all matters to be considered in the exercise of the discretion: see ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 and Edwards v Department of Family and Community Services [2012] NSWADT 60.

1. In the present case Mr Jacobs argues that there is a public interest in understanding the events surrounding his being charged with murder by Police, given the Trial judge's conclusion that he should not have been charged. Further, the emotional trauma he suffered as result of those charges, and his difficulty in dealing with matters arising from them, and understanding he information he has been given, were matters he argued should be taken into account.

1. On the other hand the Agency argued that it would be prejudiced by now having to traverse the issues, and that Mr Jacobs' application was simply too late. The Agency forecast floodgates opening if the Tribunal were to extend time for nearly six months.

1. When one considers Mr Jacobs's evidence it is apparent that his principal excuse is that he did not receive the decision of 18 April 2012 until 31 October 2012. As I have already found that contrary to Mr Jacobs's evidence he did receive that decision at the same time as he received the CD in April 2012, that excuse cannot be accepted as reasonable.

1. That being the case Mr Jacobs argument is reduced to one concerning his claimed misunderstanding of the Information Commissioner's recommendations, the public interest in the issues he sought information about, and one that addresses his particular difficulties in processing the information supplied to him by the Agency in response to his request for access to information.

1. While I understand and accept that Mr Jacobs had real difficulty in dealing with the information, his anxiousness alone does not provide a reasonable explanation for the very long delay in making the application. Neither does his claimed failure to understand that the Information Commissioner was making recommendations only. Mr Jacobs' professed belief that the Information Commissioner's report was binding on the Agency (and that the Agency was therefore complying with it) is at odds with both the nature of those recommendations, and the express advice given by the Information Commissioner in her report.

1. While I accept that allowing him to proceed with his application would enhance the accountability of the Agency, Mr Jacobs' delay is too long to be readily explicable, especially as he was given the decision on 18 April 2012. I do accept that Mr Jacobs will be prejudiced if time is not extended as he will be denied access to all the information he seeks. On the other hand, I am not persuaded by the Agency's claim of potential prejudice. The reality is, however, that Mr Jacobs has not provided a reasonable excuse for the delay.

1. As a consequence I refuse to extend time.

Conclusion

1. It follows that Mr Jacobs's ADT Review application was made out of time, and that the Tribunal has no jurisdiction to determine it. The application is dismissed for want of jurisdiction accordingly.

Decision last updated: 07 March 2013