Jeffries v South Australia Police No. Dcaat-02-328

JEFFRIES v SOUTH AUSTRALIA POLICE
[2003] SADC 2
Judge Anderson
Civil

This is an appeal pursuant to Section 40 of the Freedom of Information Act 1991 (“the Act”). It follows an external review completed by the Police Complaints Authority subsequent to an earlier internal review by the South Australia Police (“SAPOL”).
That initial review arose from an incident which occurred on 28 November 1996 and led to the creation of several SAPOL documents. It was in relation to part of the contents of some of these documents that the Appellant initially sought amendment pursuant to Section 31 of the Act.
As a consequence of the external review conducted by the Police Complaints Authority, pursuant to Section 39 of the Act, there remains an issue concerning the contents of two SAPOL documents. It is in relation to those documents only that the appeal was instituted. Those documents are known as “Advice of Decision not to Prosecute - RF1390” and “Police Apprehension Report”.
The Appellant appeared in person to prosecute her appeal and the agency (SAPOL) was represented firstly, by Ms Panagiotidis and, subsequently, by Mr Goldsmith.
Section 48 of the Act places the onus in such an appeal upon the agency seeking to justify the determination. The relevant determination for this purpose is that made by the agency to the original documents as identified in accordance with the directions of the Police Complaints Authority made on 14 May 2002.
Section 30 of that Act, pursuant to which the Appellant’s original application to the agency was made, is in these terms:
“30. A person to whom access to an agency’s documents has been given may apply for the amendment of the agency’s records if-
(a)the document contains information concerning the person’s personal affairs; and
(b)the information is available for use by the agency in connection with its administrative functions; and
(c)the information is, in the person’s opinion, incomplete, incorrect, out‑of‑date or misleading.”
The agency, through its counsel, accepts that the matters the subject of appeal are both concerning the Appellant’s personal affairs and is information which is available for use by the agency in connection with its administrative functions. Thus, Section 30(a) and (b) are satisfied. The agency does not concede that the information is “incomplete, incorrect, out-of-date or misleading”. Thus, in accordance with Section 35 of the act, in view of its failure to agree that Section 30(c) is made out, the agency has refused to amend its records as requested by the Appellant except as directed by the Police Complaints Authority.
Notwithstanding an offer by the agency to add a notation to the relevant documents so as to set out such information as the Appellant claims is necessary to complete or bring the documents up‑to‑date, the Appellant maintains her claim for amendment. She is dissatisfied with the directions given by the Police Complaints Authority in relation to the two documents earlier identified.
In her Notice of Appeal, the Appellant identifies, by reference to the directions of the Police Complaints Authority contained in his letter of 14 May 2002, the entries in the two documents with which she is dissatisfied.
In relation to the document “RF1390 - Advice of Decision not to Prosecute” which is the Exhibit LP-03 to the affidavit of Sergeant Pettet - Exhibit P1 - filed in support of the Respondent’s position, the Appellant identifies the following form of words as requiring amendment:
“(1) ........................
(A)“There is also some concern over victims credibility” (Page 5 No. 4 and Page 7, 3^rd paragraph)
(B)“and failed to complain of any injury” (page 5 No.4,3^rd Paragraph)
(C)“Nil Independent witnesses” (Page 6 No.6)”
In relation to the document “Apprehension Report” which, in its amended form after compliance with the Police Complaints Authority directions of 14 May 2002, is exhibit LP-02 to the affidavit Exhibit P1, the Appellant seeks amendment of the form of words set out in this form:
“(2)........................
(A)“Victim recognised the driver of the red vehicle as being Jane Cooper” (Page 6 part of No.7)
(B) “There are no independent witnesses” (Page 6 No.6)”
[In each instance, the words in parentheses refer to the Police Complaints Authority letter of 14 May 2002.]
Finally, the Appellant takes issue with the manner of amendment as directed by the Police Complaints Authority on 14 May 2002 - “By way of a thin line through them so they can still be read.”. The Appellant seeks to have the form of words set out in paragraphs 1 and 2 of the Notice of Appeal as above identified obliterated by a heavy black line.
At the outset of the hearing, the Appellant complained of a lack of strict compliance with the initial agency review in that there was no compliance with Section 36(2)(b)(iii) of the Act.
It seems from the available documents that this may be so, but the complaint is overtaken by the subsequently sought internal review which, in accord with Section 38 of the Act, “confirmed” the earlier decision. No further reasons for such a decision are required.
Thereafter, the Appellant exercised her rights pursuant to Section 39 of the Act and sought and received an external review by the Police Complaints Authority. He seems to have given considered reasons for his conclusions before he made directions in accord with that Section. There is no requirement that he comply with Section 36(2) of the Act.
Paragraph (1)(A) on the Notice of Appeal seeks amendment to the words “There is also some concern over the victims credibility” in the RF1390. As this is a conclusion or opinion based on other matters, it is necessary to consider them first.
These words are part of a longer entry in the RF1390 considered by the Police Complaints Authority at paragraph 4 of his letter of 14 May 2002. He determined that that part of the larger entry which referred to the Appellant’s alleged failure to report any injury to the police, was incorrect. These words were directed to be lined through so as to remain able to be read and as such, are subject to appeal in paragraph 3 of the Notice of Appeal as to method. It is convenient to consider this method of amendment now because it is relevant to paragraphs (1) and (2) of the Appeal if the Appellant is successful.
Ms Panagiotidis for the Respondent submitted that this was the appropriate direction. She relied upon Re Wiseman and Department of Transport (1984) 12 ALD 707 @ 36. She submitted that it was serious to amend Government records and that such amendment was a matter not intended by Parliament to be taken lightly and consequently, the direction of the Police Complaints Authority was most appropriate, i.e. line through the offending words with a notation referring to his direction in order that they may still be read, albeit with the notation.
There is no method of amendment directed in the Act.
In Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135 paragraph 12 sets out a quotation from Rendit J in G v Health Commission of Victoria (unreported 13 September 1984) in these terms:
“Decisions under the US Privacy Act have established that under its comparable provisions, the scope of an application to amend records is not to be confined to the area of factual misrepresentation as distinct from statement of professional opinion. Thus in R R v Department of Army (1980) 482 F Supp 770 at 774 Gesell J stated: ‘It would defy common sense to suggest that only factually erroneous assertions should be deleted or revised, while opinions based solely on these assertions must remain unaltered in the individual’s official file. An agency may not refuse a request to revise or expunge prior professional judgments once all the facts underlying such judgments have been thoroughly discredited. This position is reinforced in the Act’s legislative history, where there are clear indications that insidious rumours and unreliable subjective opinions as well as simple factual misrepresentations fall within the ambit of the Act’s strictures.’.” (emphasis added)
The Police Complaints Authority thought those words to which I have referred, but which are not mentioned in paragraph (1) of the Notice of Appeal, to be incorrect. In my opinion, if that is so, and I am satisfied for the reasons which he gave that he is correct, then the factual assertion is wrong and should be obliterated completely. If it is wrong, then it can be taken to be “thoroughly discredited” (ibid).
As there is nothing in the Act directing the powers of this Court in an appeal such as this, I proceed on the basis that it has open to it the same authority as is given to the Police Complaints Authority in Section 39(3)(b) and, “may if satisfied that a different determination should be made in the circumstances of the case ..... direct the agency to make a determination in specified terms”.
In this regard I direct the agency to amend this record by striking through the words “Victim also failed to mention any injury to the Police” in heavy black line.
The affidavit which is referred to by the Police Complaints Authority is an affidavit which, it is accepted, was provided to the Police at the time of the creation of the Police Incident Report. This was not in the original papers present for the Appeal and it was agreed that a copy would be forwarded to me for the purpose of use in determining the appeal. It came to me by letter of 9 September 2002 from the office of the Respondent’s solicitors.
The allegation that the Appellant “failed to complain of any injury” is in this sentence: “There is also some concern over the victim’s credibility as she failed to mention the incident to the principal of the school concerned just after the incident occurred and failed to complain of any injury.” (RF1390).
From the papers available to me, it does not appear as though the investigating officer spoke to the school principal.
Presumably, the creator of the RF1390 was the investigating officer in 1996, although I note a different identity number on that document than on the Police Incident Report - the new P2 to which the Appellant’s affidavit is attached.
I agree with the Police Complaints Authority that when the affidavit is read there is no support for the assertion in the RF1390 that there was a failure “to mention the incident to the principal”. The assertion is incorrect and for the reasons given earlier, should be deleted in like manner. There is no evidenced intention by the Parliament to maintain the historical integrity of records which are factually incorrect.
The Police Complaints Authority was unable to say that there was an error in the determination so as to render the allegation that there was a failure to complain of any injury to the principal as incorrect.
Whilst this conclusion was not subject to specific mention in the Notice of Appeal, as it is a matter which underpins the conclusion or opinion as to the Appellant’s creditability, I consider that it must be passed upon in order that that conclusion or opinion be considered in its proper context.
If the only support for this conclusion was the content of the Appellant’s affidavit, and none other is mentioned, I respectfully disagree with the Police Complaints Authority. There is simply no evidence on the topic. Neither is it addressed in the Apprehension Report.
In my opinion, for a determination to be supported there must be something to underpin it. If that is not so, why is there cast upon the agency the onus set out in Section 36(2)(b)(iii) which, as I have said, was clearly not discharged at the outset in this matter?
As there is no support on this topic, I consider the statement to be incorrect. It also should be obliterated by a heavy black line. Again, there is no benefit in maintaining the historical integrity of a factual error.
This leaves the allegation relating to the Appellant’s credibility, as set out in paragraph (1)(A) of the Notice of Appeal.
As I have emphasised by reference to the quotation from Leverett, it is established that where the factual basis supporting a judgment has been discredited, it is not possible to refuse to expunge that earlier judgment. That the Police Complaints Authority has, correctly in my view, characterised the statement as to credibility as an opinion, does not take it out of this category.
The concern as to the Appellant’s credibility expressed in the RF1390 is plainly based upon the facts which follow it in the text of the document. As I am satisfied that those facts are all incorrect, there is no basis for the opinion or judgment as to her credibility to remain and those words should be likewise expunged.
Consequently, all of those words in the RF1390 in relation to which the Police Complaints Authority directed that there be a striking through “so as to permit it to be read” are to be amended by the putting of a heavy black line through them and I direct the agency accordingly.
I recognise that the effect of this direction is to disrupt the historical integrity of the RF1390. However, that is as it must be for I am unable to see that it was the intention of Parliament to preserve the historical integrity of incorrect factual assertions and any opinion based thereon. There is support for this conclusion in the absence in the Act of any direction at all as to the manner or method of amendment. In addition, the objects of the Act are in these terms:
“3.(1) The objects of this Act are to extend, as far as possible, the rights to the public-
(a)to obtain access to information held by government; and
(b)to ensure that records held by government concerning the personal affairs of members of the public are not incomplete, incorrect, out-of-date or misleading.” (emphasis added)
In my opinion, this determination in relation to the matters referred to in paragraphs (1)(A) & (B) and (3) of the Notice of Appeal achieves this objective.
I turn to paragraph (2) of the Notice of Appeal.
In the external review by the Police Complaints Authority, he found the words within the Apprehension Report “Victim recognised the driver of the red car as being Jane Cooper” were correct. He reached this conclusion by reference to the affidavit of the Appellant to which I have previously referred.
There were other words within this document, and which are set out at paragraph 7 of the Police Complaints Authority report, which he found to be incorrect and in need of amendment. He then directed that it be amended in the same form as I have earlier described.
It seems that because of the nature of the electronic recording methods of the agency, that when this directive was put into effect, the relevant words were lost and the present form of the electronic record of the exhibit LP02 of P1 is all that remains in the agency.
The Appellant was, for some reason, critical of this fact, even though she has, for apparent technical reasons, received a greater benefit than the Police Complaints Authority intended. Nothing can now be done about her good fortune in receiving a more effective amendment than was intended.
Had this not occurred, and had there been an appeal in relation to the directed method of amendment, I indicate, for the purpose of completeness only, that I would have made a direction in like terms to those where I earlier was satisfied that the allegation, the subject of the Appellant’s application, was incorrect and for like reasons.
However, in relation to the words in paragraph (2)(A), the subject of appeal in the Apprehension Report, I am satisfied that the conclusion of the Police Complaints Authority is correct and that it is fair to conclude from her affidavit that, at the time of the happening of this incident, the Appellant, because of the presence in the allegedly offending red vehicle of the boy whom she knew, she concluded that the female driving was his mother. Indeed, this is exactly what she said she “realised” in her affidavit. In these circumstances the precise status and title of that person, as referred to in submission by the Appellant, is irrelevant.
The application as to paragraph (2)(A) of the Notice of Appeal is refused.
Paragraphs (1)(C) and (2)(B) refer to the assertion in both the RF1390 and the Apprehension Report to the effect that there were no independent witnesses to the incident on 28 November 1996.
The Police Complaints Authority determined that the use of the word “witness” in this context was “.... to describe somebody who has been identified as being able to give relevant evidence .....”. I respectfully agree with this conclusion.
Plainly, there are no such persons in relation to this incident.
The Appellant sought to call evidence from her husband as to conversations had with a staff member at a Community & Family Services centre adjacent to where the incident occurred to the effect that there were persons there who may have seen what occurred and so, in that sense, may have been witnesses, but who were never identified by the agency.
Irrespective of whether any such person exists, the manner of conduct of the investigation did not identify any such person. Thus, at the time these documents were created, there were no independent witnesses and so, in each instance, the assertion is not incorrect. That being so, there can be no direction in relation to it.
That the Appellant’s husband may have had conversations which may eventually, if followed up, have led to the identification of one or more witnesses to the incident, is not to the point. Even now these persons have not been spoken to and so when the documents were prepared or ‘since the agency’s determination was made” (Section 39(3)(b)) there are not any independent witnesses in the sense in which that word has been used in the documents. Thus, the evidence of the Appellant’s husband would have been of no use to her in this appeal.
When the appeal was called back on on 13 September 2002, the Appellant handed up a document which is a copy of a facsimile apparently sent from the Elizabeth Police Station to the Appellant on 11 November 2000 by a Constable Bavey.
Attached to it are notes which the Appellant told me she had made from her conversation with Constable Bavey on 2 November 2000.
There is nothing in this document, on the assumption that I am able to refer to it, which in any way establishes that the school principal, to whom reference is made in the papers, was a witness to the incident. Indeed, the Appellant’s affidavit strongly indicates to the contrary. He can only have known what he was told of the incident by those involved in it. As such, he is not a witness in the relevant sense and, again, there is no benefit in hearing evidence on this topic.
The orders necessary to dispose of this appeal are, for the reasons which I have given, as follows (by reference to the Notice of Appeal):
1. Paragraph (1)(A) and (B): appeal allowed and directions given.
2.Paragraphs (1)(C) and (2)(A) and (B): appeal refused and Police Complaints Authority direction confirmed.
3.Paragraph 3: appeal allowed and directions given.

[2003] SADC 2

21 January 2003