Johnston v Commissioner of Police, NSW Police Force

[2009] NSWADT 181

CITATION:	Johnston v Commissioner of Police, NSW Police Force [2009] NSWADT 181
DIVISION:	General Division
PARTIES:	APPLICANT Phillip Johnston RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	083233
HEARING DATES:	29 April 2009
SUBMISSIONS CLOSED:	29 April 2009
DATE OF DECISION:	10 July 2009
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Access to documents- available for inspection in accordance with agency’s policies and practice
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Chapman v Commissioner of Police, New South Wales Police [2004] NSWADTAP 16.26 Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 Johnston v Commissioner of Police, New South Wales Police Force (GD)[2008] NSWADTAP 82 McGuirk v Commissioner of Police, New South Wales Police [2008] NSWADT 328
REPRESENTATION:	APPLICANT In person RESPONDENT K Sato, solicitor
ORDERS:	Decision under review affirmed

1 On 15 June 2008 the applicant applied to the respondent pursuant to the Freedom of Information Act 1989 (the FOI Act) for access to:

1. A copy of the In Car Video File LDKOWI related to infringement 4018414593

2. Training or Operational Manuals related to the In Car Video equipment fitted to AL37DG

3. Police Operational Guidelines related to the use of In Car Video Equipment

4. Policies related to access and release of copies of in-car videos

5. Copies of maintenance records & certificates of accuracy for the in car video equipment as fitted to AL37DG

2 The respondent did not make a determination within the prescribed time. On 8 July 2008 the applicant requested an internal review of a deemed refusal. The respondent did not make a determination within the prescribed time, and on 29 July 2008 the applicant applied to the Tribunal for review.

3 At the first planning meeting I made an order pursuant to s56(2) of the FOI Act allowing further time for the respondent to deal with the access application by 13 October 2008. A determination was made by the Manager, Freedom of Information Unit, dated 7 October 2008. The determination stated that in relation to item 1, the car video file is protected by copyright and thus pursuant to s27(3)(c) access in that form was refused; and further that the NSW Police Standard Operating Procedures allow a person or their representative to make arrangements to view the video free of charge, and pursuant to s25(1)(b1) of the FIO Act access was refused. Documents 2 to 5 were exempt under clause 4(1)(c), (e) and (h) of Schedule 1 to the FOI Act, and it is not practicable to delete exempt matter. Document 6 was released in full.

4 There were further discussions both at planning meetings and otherwise between the parties, during which the scope of the application for review was narrowed. On 6 November 2008 by consent I ordered that certain pages of the document entitled “In Car Video – Master Standard Operating Procedures” Version 2.1 issued in June 2007 (the SOP) be released to the applicant. At a subsequent planning meeting I made directions for filing and serving of witness statements and submissions on the remaining issue in dispute, namely whether the applicant was entitled to have access to a copy of the video footage or whether, as contended by the respondent, s25(1)(b1) of the FOI Act applies.

5 The respondent filed its written submissions on 8 January 2009. The respondent filed two witness statements, by Sergeant Michelle Portlock and Inspector John Lipman. The applicant filed his written submission on 10 February 2009, including a letter dated 15 June 2008 addressed to Commander Donna Adney outlining his contact with Surry Hills Police Station concerning viewing the video footage. The respondent filed its submissions in reply on 23 February 2009.

6 On 2 March 2009 the applicant wrote to the Tribunal requesting that the matter be listed for hearing, as Inspector Lipman and Superintendent Adney were required for oral evidence. The matter was listed for directions on 18 March 2009. On 9 March 2009 the applicant requested leave to issue a summons to Inspector Lipman and Superintendent Adney.

7 At the directions hearing the applicant submitted that Inspector Lipman was the author of the SOP, and that evidence from Superintendent Adney was necessary as she was the head of the Surry Hills local area command and thus ultimately responsible for any non-compliance with the policy regarding use of in car video footage. The respondent’s representative agreed that Inspector Lipman should be available for cross examination. The respondent’s representative submitted that there would be no legitimate forensic purpose served by having evidence from Superintendent Adney as the issue was whether or not s25(1)(b1) applies. I refused leave to issue the summons to Inspector Lipman and Superintendent Adney. The respondent agreed to file, on a confidential basis, a copy of the video footage.

8 A hearing was held on 29 April 2009 and oral evidence was given by Inspector Lipman and by the applicant. Both parties exercised their right to cross examine the other’s witness.

Relevant legislation

9 Under section 16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency’s documents. This right is subject to other provisions of the FOI Act, including s25, which provides:

25 Refusal of access

(1) An agency may refuse access to a document:

(a) if it is an exempt document, or

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions, or

(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or

(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices, or

(c) if it is a document that is usually available for purchase, or

(d) if it is a document that genuinely forms part of the library material held by the agency.

(e) (Repealed)

(2) (Repealed)

(3) An agency shall refuse access to a restricted document that is the subject of a Ministerial certificate.

(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):

(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and

(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.

(5) Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.

10 Section 27 of the FOI Act makes provision for the form in which access is to be given:

27 Forms of access

(1) Access to a document may be given to a person:

(a) by giving the person a reasonable opportunity to inspect the document, or

(b) by giving the person a copy of the document, or

(c) in the case of a document from which sounds or visual images are capable of being reproduced, whether or not with the aid of some other device—by making arrangements for the person to hear or view those sounds or visual images, or

(d) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of sound—by giving the person a written transcript of the words recorded in the document, or

(e) in the case of a document in which words are contained in the form of shorthand writing or in encoded form—by giving the person a written transcript of the words contained in the document, or

(f) in the case of a document in which words are recorded in a manner in which they are capable of being reproduced in the form of a written document—by giving the person a written document so reproduced.

(2) If an applicant has requested that access to a document be given in a particular form, access to the document shall be given in that form.

(3) Notwithstanding subsection (2), if the giving of access in the form requested:

(a) would unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions, or

(b) would be detrimental to the preservation of the document or (having regard to the physical nature of the document) would otherwise not be appropriate, or

(c) would involve an infringement of copyright subsisting in matter contained in the document,

access in that form may be refused but, if so refused, shall be given in another form.

(4) If an applicant has requested that access to a document be given in a particular form and access in that form is refused but given in another form, the applicant shall not be required to pay a charge in respect of the giving of access that is greater than the charge that the applicant would have been required to pay had access been given in the form requested.

(5) This section does not prevent an agency from giving access to a document in any other form agreed on between the agency and the person to whom access is to be given.

(6) An agency may refuse to give access to a document unless any charge payable in respect of dealing with the application, or giving access to the document, has been paid.

11 The jurisdiction of the Tribunal to review a determination by an agency is conferred by s53, which relevantly provides:

53 Right to make a review application

(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

...

(3) For the purposes of this section, a person is aggrieved by a determination:

(a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36—if the determination is to the effect that:

(i) an agency or Minister refuses to give the person access to a document, or

(ii) access to a document is to be given to the person subject to deferral, or

(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the person, or

(iv) access to a document is to be given to the person subject to a charge for dealing with the access application, or for giving access to a document, that the person considers to be unreasonable, or

(v) a charge for dealing with the access application is payable by the person being a charge that the person considers to have been unreasonably incurred, or

(b) in the case of a determination that relates to an application made by some other person under section 17, 34 or 36, in respect of a document to which one or more of the provisions of Division 2 of Part 3 applies—if:

(i) an agency or Minister should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or

(ii) an agency or Minister should have, and has, taken such steps but the determination is not in accordance with the views of the person, or

(c) in the case of a determination that relates to an access application made by the person under section 40, 47 or 49—the determination is to the effect that an agency or Minister refuses to amend the agency’s records or that Minister’s records, as the case may be, in accordance with the application,

and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections.

...

12 The respondent submits that it is not controversial that the applicant was issued with an infringement notice for a speeding offence on or around 20 May 2008; that shortly after that date he contacted the Surry Hills Highway Patrol office and requested to view the in car video (ICV) footage of the offence; that Sergeant Portlock located the ICV footage on the computer system; that the applicant attended Surry Hills Police Station on 12 June 2008 and viewed the ICV footage; and that the applicant was not charged any money for viewing the ICV footage. The respondent submits that it may refuse to provide the applicant with a copy of the ICV footage because it has been made available to him for inspection free of charge and in accordance with its policies and practices. The respondent referred to its written policy issued in October 2002 titled “In Car Video Master Standard Operating Procedures” which details the general procedures and training information for the ICV system. The respondent submits that the Tribunal has no jurisdiction to consider the appropriateness or validity of its policy decision not to make copies of ICV footage available to the person. While initially claiming that release of the ICV footage would infringe copyright, in the written submissions of 8 January 2009 the respondent confirmed that it is now relying only on s25(1)(b1) of the FOI Act.

13 The respondent provided a witness statement from Sergeant Portlock, in which she sets out the sequence of events from the telephone call made by the applicant requesting that he view the ICV footage of 20 May 2008, to 12 June 2008. In paragraph 9 Sergeant Portlock states:

At around 3.30pm on that day, Mr Johnston attended Surry Hills Police Station and he was escorted into the HWP Supervisor’s office by me, where he viewed the ICV footage for his alleged speeding offence on a computer.

14 Sergeant Portlock provided a copy of the ICV Viewing Log kept at Surry Hills Police Station, which includes an entry for 12 June 2008 in the applicant’s name.

15 Inspector Lipman provided a witness statement and gave oral evidence. In his witness statement Inspector Lipman states that he has been employed as a police officer for around 27 years and is currently Commander of the Traffic Technology Section, Traffic Services Branch. At paragraph 2 Inspector Lipman states that he was involved in preparing and reviewing the draft SOP before it was finally approved. In paragraph 3 Inspector Lipman summarises the standard practice for using the ICV system in the traffic patrol context.

3.The NSWPF introduced the In-Car-Video (ICV) system for use by highway patrol officers to assist in safely stopping motor vehicles and recording their interaction with drivers. I summarise below the standard practice of the NSWPF for using the ICV system in the traffic patrol context:

(a) Police officers will return on the ICV system, in order to record audio and visual footage, when they are pursuing or otherwise following a vehicle with the intention of stopping or detaining that vehicle.

(b) After the vehicle is stopped, the police officer’s discussion with the driver is captured by the ICV system. It is standard operating procedure for police officers to turn off the IXCV system only when the driver has driven away.

(c) If a police officer decides to issue an infringement notice to the driver, and the driver asks to view the event, he or she informs the driver at that time that the driver may view the ICV footage free of charge at the river’s local police station, by mutual arrangement.

(d) Also, at the time an infringement notice is issued, the police officer normally gives to the driver a “Request for Viewing” at that time. An example of this card is annexed to my statement and marked “B”.

(e) After a driver requests his or her local police station to view ICV footage, the Highway Sergeant at that station will then organise for the ICV footage to be found on the server at the Police Station or Investigative Systems Support (ISS) if the files have been transferred. This will usually occur within 2-5 working days of a request being made.

(g) ICV footage is generally only viewable on certain computers which are designated as having access to the area of the server where the footage is located.

16 Inspector Lipman stated that at the time the ICV system was implemented and the SOP drafted a general policy was adopted not to release copies of ICV footage to drivers. Inspector Lipman explained this policy in the following terms:

6...This is because the NSWPF cannot control subsequent use or publication of the ICV footage by drivers. For example, I have seen America ICV footage of drivers downloaded onto video-sharing websites such as “YouTube”, which may be viewed by members of the public. The NSWPF was concerned that downloading such footage could encourage certain sections of the community to deliberately flout the law and enjoy some notoriety in doing so. Alternatively, such footage might be sold for entertainment purposes. I have viewed American ICV footage that has been downloaded onto YouTube it is well understood in eh policing community that the publication of ICV footage can undermine police attempts to prevent speeding and other traffic offences. For this reason, the NSWPF implemented the policy that no driver would be provided with a copy of his or her ICV footage.

7. However, in implementing the ICV system, the NSWPF accepted that members of the public might have an interest in viewing the footage and that it might be subject to a right to request access under the Freedom of Information Act 1989 (FOI Act). To accommodate these competing policies, the NSWPF decided that drivers would be given access to inspect and view their ICV footage at their local police station, free of charge.

17 The applicant submits that the respondent cannot rely on s25(1)(b1) in circumstances where there has been a failure to comply with policy. In a letter dated 15 June 2008 addressed to Donna Adney, Local Area Commander Surry Hills, the applicant outlines the sequence of events from the issuing of the infringement notice on 20 May 2008 to his viewing of the ICV footage at Surry Hills Police Station on 12 June 2008. In this letter the applicant states that after speaking to Sergeant Portlock and arranging an initial appointment for 22 May 2008, he telephoned Surry Hills Police Station approximately 18 times, leaving messages for Sergeant Portlock, who did not respond to the messages. In his written submissions the applicant submits that the respondent’s policies and practices concerning the ICV system were not complied with. The applicant submitted that the respondent’s SOP provides under the heading “Authority to release” that release of “routine police operations or investigations” can be authorised by the officer in charge of the operation or investigation or the relevant Local Area Commander or specialist equivalent; that every other type of captured image apart from ICV footage is available for purchase; and that it is in the public interest to release the ICV footage.

18 In oral evidence the applicant outlined the sequence of events from the time his car was stopped on 20 May 2008, and identified what he alleged were major breaches of policy. The applicant’s evidence was that after his car was stopped he asked whether there was a recording and where he could get a copy, and did not get an answer; that he was not given a copy of a “Request for Viewing” card in the form referred to by Inspector Lipman; that he had to track down the particular police station through the registration number of the police vehicle; that it took considerable time before he was able to arrange to view the footage, whereas the policy refers to 2-3 days; that the audio recording went on and off at various times; and that while he viewed the video he did not have a reasonable opportunity to view it extensively.

Consideration

19 The respondent relies on s25(1)(b1) of the FOI Act to support its decision to refuse to provide the applicant with a copy of the ICV footage recorded on 20 May 2008, on the basis that access to ICV footage is available, free of charge, for inspection by the person concerned, in accordance with its policy set out in the document “In Car Video – Master Standard Operating Procedures” (the SOP).

20 The SOP provides policy for viewing of ICV footage by officers within the NSWPF (at p77); viewing by an accused person and or legal representative (at p78); production of ICV DVDs where a copy of recorded events is required as an exhibit in evidence or for the purpose of viewing at a distant location (at p79); and procedures for release of footage tot eh media. The SOP includes commentary on “Other Situations for Release”, including to the Ombudsman’s office. In relation to release under the FOI Act, the SOP states:

Under Part 3, Section 25 of the Freedom of Information Act 1989 Number 5 an Extract is outlined below, a copy of a recorded media file will NOT be provided to person/s outside NSW Police except where a court order has been issued.

The NSW Police policy of “free to view” recorded media files at HWP Offices permits an exemption under FOI (see below).

21 The SOP then sets out s25 of the FOI Act, with paragraph 25(1)(b1) highlighted in bold.

22 Under the heading “Viewing of Recorded ICV Media by an Accused Person and/or Legal Representative” the SOP sets out the procure to be followed “if a request is received from an accused person and/or his/her legal representative who has an ICV card (issued at the completion of the vehicle stop) detailing the ICV recorded media file number, time and date or a Traffic Infringement Notice detailing an ICV recorded media file number”. Under this procedure, if the media file is located on a local server, it is to be shown at a mutually agreeable time; if a copy DVD is required under the Request for Media Procedures, “the file can be shown at a mutually agreeable time”.

23 I am satisfied, based on the SOP and the evidence of Inspector Lipman, that the respondent has a practice of allowing persons recorded on the ICV system to view the footage recorded of them at a local police station. The issue is whether this means that the document (namely, the video recording) is “available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices” for the purposes of s25(1)(b1) so that the respondent is entitled to refuse to provide a copy of the footage to the applicant in response to his request for access.

24 In Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Deputy President Hennessy considered s25(1)(b1) in the context of access to a police officer’s notebook. Deputy President Hennessy concluded:

27 This provision applies to documents that are available to members of the public free of charge under a general policy of public access. I am not satisfied that it is the normal policy or practice of the Agency to provide access to police notebooks to members of the public. Under s 27(1) of the FOI Act, access to a document can be given to a person by giving the person “a reasonable opportunity to inspect the document” or “by giving the person a copy of the document.” Telling a person that they can contact another person to request access to a document is not giving them a “reasonable opportunity to inspect the document.” Accordingly, under s 63(3)(c) of the ADT Act the decisions in respect of paragraphs 1(d) and 1(f) are set aside. In substitution for the Agency’s decision to refuse access, a decision is made to provide the Applicant a copy of the documents requested.

25 Deputy President Hennessy also considered access to footage from a surveillance camera, and stated:

57 The Agency refused access in accordance with s 25(1)(b1) of the FOI Act on the basis that the footage could be inspected at the Agency. The Agency has provided no reference to or evidence of the policy or practice that would permit the Applicant to access information of the kind requested under paragraph 3. As indicated earlier, section 25(1)(b1) applies only to those documents that are available to all members of the public free of charge under a general policy of public access. I am not satisfied that it is the normal policy or practice of the Agency to provide such information to members of the public.

26 I note that while this decision was set aside on appeal, this issue was not considered by the Appeal Panel: Chapman v Commissioner of Police, New South Wales Police [2004] NSWADTAP 16.

27 In contrast to the position in Chapman, in this matter the practice of allowing individuals to view ICV footage relating to them arises under considered, clearly articulated, written policy in the form of the SOP. I accept the evidence of Inspector Lipman that this policy was first formulated in 2002 at the time the respondent was introducing the ICV system. While access is restricted to those with a legitimate interest in viewing the footage, namely the individual concerned or their legal representative, and does not extend to the public at large, I am satisfied that this is, to use the term used in Chapman, a “normal policy or practice” of the respondent to make a document in the form of ICV footage available for inspection at the agency.

28 Judicial Member Higgins considered the application of s25(1)(c) in McGuirk v Commissioner of Police, New South Wales Police [2008] NSWADT 328. Higgins JM rejected an argument that s25(1)(c) only applies to documents available to all members of the public who wish to purchase them, in the following terms:

21 In my opinion, the express words of paragraph 25(1)(c) of the FOI Act do not support such a narrow construction. It does not say that in order to come within the terms of this paragraph the document must be one that is available for purchase by all members of the public who choose to purchase it. The purpose of this paragraph is to preserve those circumstances where an FOI applicant can obtain access to a document by purchasing it from a government agency. If this was not the case then all documents which are available for purchase from an agency would be sought under the FOI Act. Accordingly, in my opinion the paragraph must be read in the context of the application that is before the agency for determination and the initial question for the agency is whether the document sought by the FOI applicant is one that is usually available for the FOI applicant to purchase. The answer to that question in this application is yes, the transcript of the proceedings for which he has sought access is available to him to purchase.

29 In my view it is arguable that the reasoning in McGuirk is applicable to s25(1)(b1). Agencies such as the respondent collect and hold information about individuals, and access to that information must be limited in accordance with the provisions of the Privacy and Personal Information Protection Act 1998 and the FOI Act, including clause 6 of Schedule 1. Reading s25(1)(b1) in the context of the application that is before the agency, the document sought by the applicant is one that is available to him for inspection in accordance with the SOP.

30 The applicant submits that the respondent cannot rely on s25(1)(b1) in circumstances where there has been a failure to comply with policy. In his oral submissions the applicant referred to the showing of ICV footage on television, which indicates that people have obtained access to ICV footage regardless of the policy.

31 In cross examination Inspector Lipman was questioned about compliance with the policy. Inspector Lipman stated that the SOP set the parameters for police and was policy not law. Inspector Lipman stated that there could be a range of issues such as technology or times when the equipment fails to record. Inspector Lipman stated that it would be a breach of the policy for an officer to turn off the audio; failing to issue a Request for Viewing card would not be a breach. Inspector Lipman stated that he was not aware of instances where ICV footage had been released.

32 I agree with the applicant that an individual who is not informed at the time of the issuing of a traffic infringement notice (either verbally or in the form of a Request for Viewing card) that they are entitled to make arrangements to inspect ICV footage of the incident, may not realise that such a practice exists. Inspector Lipman conceded that there might be circumstances where, for example, audio recording on the ICV might not be complete. In my view neither instances of non-compliance with the policy nor technical difficulties associated with the recording detract from the general position that processes are in place for individuals to view ICV footage relating to them. I am satisfied that this constitutes availability for inspection in accordance with the agency’s policies and practices, and the respondent is entitled to refuse access to the document under s25(1)(b1).

33 The next issue is whether or not access should be ordered on the basis that to do so is the correct and preferable decision. In Cianfrano v Director-General, Premiers Department [2007] NSWADT 216 the President noted that there should be strong grounds to justify the exercise of this residual discretion, and set out at [27] some of the factors relevant to the exercise of the discretion. In this instance, the applicant argues that the policy has been departed from; that he was tenacious in overcoming four major breaches of the policy so that he could view the footage; and that providing access is in accordance with the objects of the FOI Act. The respondent relied on its policy that there should be release only in the context of court or other legal proceedings, or in accordance with the media release policy. I am not persuaded that there are strong grounds justifying the ordering of access to a copy of the ICV footage. Whether or not I agree with the reasoning behind the policy of refusing to provide a copy of footage other than where required as part of a court or other legal process, or where authorised in accordance with the Public Media Procedures, the respondent has adopted its policy and practice for a considered reason, and I am not persuaded that there is any reason to depart from it.

34 There are two points to note in conclusion. In its written submissions the respondent argued that if s25(1)(b1) does not apply, the respondent’s decision under s27of the FOI Act as to the form in which access is to be given is a determination in respect of which the Tribunal has no jurisdiction. At the conclusion of the hearing I indicated that if I concluded that s25(1)(b1) did not apply, the applicant would be provided with an opportunity to make submissions on the question of whether a decision under s27 as to the form of access is reviewable. Since I am satisfied that s25(1)(b1) does apply, it is not necessary to further consider this question.

35 The second matter relates to the applicant’s application for leave to issue the summons. As noted above, Inspector Lipman was available for cross examination, and the applicant exercised his right to do so. The respondent did not provide a witness statement by Superintendent Adney and opposed the summons for her to be called. It is for the respondent agency to decide how it will discharge the onus that s61 of the FOI Act places on it of establishing that its determination is justified: Johnston v Commissioner of Police, New South Wales Police Force (GD)[2008] NSWADTAP 82. Inspector Lipman is an experienced and senior officer who was involved in drafting and reviewing the SOP, and whose evidence went to implementation of the policy. Given my conclusions on the applicant’s submissions concerning compliance with policy, I am satisfied that no legitimate forensic purpose would have been served by a summons directing Superintendent Adney to give evidence.

Order

36 Decision under review affirmed.