Kiernan v Commissioner of Police, New South Wales Police (No. 2)
[2008] NSWADT 52
•15 February 2008
CITATION: Kiernan v Commissioner of Police, New South Wales Police (No. 2) [2008] NSWADT 52 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Teresa Kiernan
Commissioner of Police, New South Wales PoliceFILE NUMBER: 063419 HEARING DATES: On the papers SUBMISSIONS CLOSED: 7 December 2007
DATE OF DECISION:
15 February 2008BEFORE: Montgomery S - Judicial Member CATCHWORDS: Freedom of Information Act - access to documents - adequacy of search - document available from agency - costs MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Cachia v Hanes (1994) 179 CLR 403
Kiernan v Commissioner of Police, NSW Police [2007] NSWADT 207REPRESENTATION: APPLICANT
RESPONDENT
In person
S Sheather, solicitorORDERS: The matter is remitted for reconsideration by the Commissioner pursuant to section 65 of the Administrative Decisions Tribunal Act 1997.
The matter is listed for further directions at 11am on 4 March 2008.
REASONS FOR DECISION
1 This is a review application under section 53 of the Freedom of Information Act 1989 (“the FOI Act”). Ms Kiernan applied under section 17 of the FOI Act in the following terms:
2 The background to the matter and applicable legislative provisions are set out in Kiernan v Commissioner of Police, New South Wales Police [2007] NSWADT 207 (“the first decision”). I made a number of findings in relation to the application and remitted the matter for reconsideration by the Commissioner pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). The matter was listed for a further directions hearing to take place after the Commissioner’s reconsideration.
“10. To be provided with all video surveillance of all cells and custody situations I was in at Surry Hills Police Station on 27th March 2005, or to be provided with documentation that explains why police officers were allowed to be alone with the prisoner where the prisoner has no witness and thus is vulnerable to assault and subsequent cover-up by police, and for that matter where police are then vulnerable to allegations, given that Sean Lewis's explanation that video surveillance is not recorded in cells due to toilets and protecting prisoners privacy is inadequate as New South Wales Police have no concerns about prisoners privacy or any of their rights, and if they did this would be explained in the documentation you are going to provide me.
11. To be provided with sufficient documents that prove that there was such thing as a TIE upgrading project of 28 October 2005 at Surry Hills Police Station that meant that computers were replaced in the muster room which meant that the electronic files I sought in the subpoena returnable on the 24th November 2005, District Court File Number 05/12/1249, by Commander Darrell Donnelly, were not able to be found, given that I do not believe that this is genuine and that I believe New South Wales Police are preventing me from proving that the police have lied under oath here in regards to these electronic files.
12. To be provided with documentation why I was refused police bail on the 27th March 2005, when I do not meet the requirements for police bail refusal under the New South Wales Bails Act, but rather Surry Hills Police made a false arrest and lied under oath many times to get a conviction and the illegitimate refusal of police bail was part of this process.
13. To be provided with documentation that addresses my previous query to Surry Hills LAC as to why Mathew O'Neil disclosed my address when serving an Application to Extend an AVO on 6 July 2005 when that AVO has my address marked 'not to be disclosed' by the court, and his application had a copy of the court order within it that said exactly that.”
3 The Commissioner’s delegate Chief Inspector Scholz, Deputy Director, Compliance Law Division, Legal Services, NSW Police, reconsidered the application. Following her reconsideration, on 28 September 2007 Chief Inspector Scholz made the following determination:
4 The matter came before me again on 22 October 2007. At that time it was apparent that Ms Kiernan had filed written submissions dated 12 September 2007 but that these had not been served on the Commissioner, and that Ms Kiernan had not received a copy of Chief Inspector Scholz’s determination. I made directions for those documents to be served and for the filing of further submissions be each of the parties. The parties agreed that the matter should be determined on the papers without the need for further hearing.
“I have perused the documents subject of the determination of Judicial Member Montgomery of 10 September 2007 which are identified as follows:
1. Letter from Ms Kiernan addressed to 'LAC Commander Surry Hills LAC Command' dated 12 July 2005 (2 pages)
2. Report of M. O'Neil dated 24 July 2005 (2 pages)
3. The Code of Conduct for Crime (136 pages)
I have determined to release the same in full to the Applicant.”
The first decision findings
5 In the first decision I stated:
Ms Kiernan’s case
“28 I am satisfied on the basis of the evidence provided on behalf of the Commissioner that the searches undertaken to try to locate the tapes that Ms Kiernan has sought is adequate. I am satisfied that there are no other video surveillance tapes showing the cells or the charge room at Surry Hills Police Station on 27 March 2005. In these circumstances I do not believe that any further search is likely to reveal such tapes. I do not direct further searches or the production of further evidence in relation to that issue. …
30 ... In light of the sensitive nature of the content of the tapes and the inclusion of others on the tapes, it is appropriate that access be limited to that provided for by section 27(1)(c) of the FOI Act. If Ms Kiernan has not already viewed the tapes it is my view that the Commissioner should make arrangements for her to do so.
31 ... I am also satisfied that there are no documents in existence “that explains why police officers were allowed to be alone with the prisoner where the prisoner has no witness”. However, Ms Kiernan has alleged that there has been a breach of Code of Conduct for Crime. I am unaware of whether the agency holds such a document and if so whether it provides for how an arresting officer is to deal with a prisoner and whether it permits police officers to be alone with the prisoner. The Commissioner has not addressed this issue and accordingly I cannot be satisfied that there are no further documents which fall within the scope of this aspect of Ms Kiernan’s request. ...
32 ... While I note that the Commissioner has not provided “evidence in the form of memos, minutes from meetings, project management schedules, signed off authorisations, invoices and the like” in relation to the TIE project documents, it is my view that Mr Elgey’s evidence is sufficient to prove that there was a TIE upgrading project in which computers in the muster room were replaced. I am also satisfied that as a consequence the electronic files that Ms Kiernan has sought were not able to be found. I do not require that the Commissioner undertake further searches or produce further evidence in relation to that issue. …
35 Ms Kiernan has previously expressed concern about the disclosure of her address notwithstanding that the court had indicated that the address was not to be disclosed. In this application she was seeking to obtain documents held by the agency, which addressed that issue. It is clear from documents contained within the complaint file annexed to Sergeant Lewis’s affidavit that the agency holds documents that fall within the scope of this request.
36 Two documents, which in my view are within the scope of the request, are the letter dated 12 July 2005 from Ms Kiernan addressed to ‘LAC Commander Surry Hills LAC Command’ and a report by M. O'Neil dated 24 July 2005. I note that no exemption has been asserted in relation to those documents. It is my view that Ms Kiernan should be given a copy of each of those documents.
37 In light of the refusal by the Commissioner’s delegate to conduct any search to ascertain whether the agency holds any documents falling within the scope of this request, it is appropriate that the matter be remitted to allow that search to be undertaken. ...”
6 Ms Kiernan provided written submissions in support of her application. In her letter dated 12 September 2007 she submitted:
7 Ms Kiernan provided further written submissions in support of her application and in response to Chief Inspector Scholz’s determination. By letter dated 21 November 2007 she submitted:
“This applicant supplies submissions for the hearing to take place on 22 October 2007 which appears to be taking place "on the papers" according to the decision the Tribunal sent to her on 10 September 2007. There is only one order made within this decision and that is that the matter is to be remitted for the purposes of the Commissioner to research for some of the requested documents. Otherwise, whilst deliberations are documented by Mr Montgomery within the decision to remit, all other aspects of the decision are not yet finalised as no orders are made or declined to be made.
Private affairs of persons in CCTV footage on 27 March 2005
... In my opinion there is CCTV of what happened once in the cells … and this is information that I want to possess to show various politicians and various courts ...
In Mr Montgomery's paragraph numbered 8 section 25(1) of the FOI Act it is acknowledged there is a practice available to delete exempt matter in order to give a document to the applicant. At his paragraph numbered 30 Mr Montgomery states that he regards the document contains exempt matter due to issues of personal affairs. I submit that it is the detained citizens who are exempt for sensitivity reasons but not police officers. In numbered paragraph 23 Mr Montgomery quotes my previous submission where I say (two thirds of the way down) "If necessary the applicant will pay for a reputable media company to blur faces of other civilians (but not police officers) so that the footage can be released to her ..." This, then, solves the problem of exempt matter. The whole CCTV footage can be possessed by me if the citizen's faces are blurred, and I had already offered to pay the cost. There are no grounds to blur the police officers faces.
I assert that I had already shut the door on the problem and Mr Montgomery cannot refuse me possession on the grounds that he is protecting the privacy of arrested citizens.
Superintendent Donnelley of Surry Hills Police Station, Local Area Commander
Superintendent Donnelley of Surry Hills Police Station is a most unsuitable person to make arrangements with to view footage. More things just go missing. When this writer last made arrangements with him to deploy a FOI order, which was to view this CCTV footage and a photostat of a whole police notebook (not an excerpt), the CCTV tapes were of the wrong year and the photostat of the notebook was not present ...
I request an Order from the Tribunal for viewing to take place in a recorded interview room at a police station with executive members of the Force conducting the process. Even better, I request the ADT to make an order that another state agency, who is politically disinterested, to conduct the viewing without any interference from the police so there can be no problems.
Mr Elgey's 'evidence' and 'affidavit', Sean Lewis's 'evidence' and 'affidavit'
Mr Montgomery has neglected to address the issue raised previously in my submissions about affidavits, and documentation being brought into existence for a FOI request when the documents already in existence are not provided.
I am confident a TIE investigation cannot occur within this agency without records being made about it at the time. That is how public administration works. If the documents were not produced there was simply an inadequate search.
In Mr Montgomery's paragraph 20 he says that Mr Elgey 'gave evidence' and that he provided schedules. However none of these things are historic, which is the nature of the documents the applicant wants. Mr Elgey is not required to give evidence about the past or provide affidavits. Affidavits are for courts or tribunals. The schedule Mr Elgey produced for the FOI request is dated posthumously to the FOI request.
...
That Mr Montgomery has no grounds to doubt the evidence the politically uninvolved professional Mr Elgey gives is irrelevant as new evidence about the subject of the documents was not requested and indeed cannot be ordered under the FOI Act which the Commissioner and Mr Montgomery each acknowledge.
Policy documents that would exist if custody management does not record cell areas and police are allowed to be alone with prisoners in such conditions. Policy on privacy due to toilets.
... I am told informally that there is a policy that the Force does not record the cells due to privacy reasons (toilets). If this was the case then a policy document would exist because this is the way that public administration works in this country. If the police cannot produce this policy document then they have not searched adequately or else they are lying and there is no such policy. ... This writer asks Mr Montgomery to reconsider if there is any truth to the rule the police refer to about this and if they should be left to withhold both the footage of the cells or the policy document explaining how they are entitled to do so.
Code of Conduct For Crime
The New South Wales Police Force's Code of Practice For Crime: (Custody, Rights, Investigation, Management and Evidence) … does provide for how an arresting officer is to deal with a prisoner, whether it permits arresting police officers to be alone with the prisoner without witnesses, and the separation of custody management from investigation to protect the citizen from bullying and false allegations.
Broad request
"… all video surveillance of all cells and custody situations I was in at Surry Hills Police Station on 27th March 2005" is narrowed to the period of time that I was at the Surry Hills Police Station.”
8 Ms Kiernan subsequently advised that on 30 January 2008 she had attended the Surry Hills Police Station to view the tapes. She stated in part:
“ Tribunal Orders
The New South Wales Police Force (NSWPF) are mistaken in thinking that any Orders have been made by Mr Montgomery in his document of 10 September 2007, other than the Order "The matter is remitted for reconsideration by the Commissioner pursuant to section 65 of the Administrative Decisions Tribunal Act 1997. The matter is listed for further directions at 10 am on 22 October 2007." There are no other Orders than this one. Mr Montgomery makes recommendations only in this document … These are not Orders. I cannot take them to the NSW Supreme Court and ask for a writ of mandamus, as they are only phrased as an opinion and Mr Montgomery's opinion cannot be enforced, only aired.
The document, rather, is the reasoning process behind the Order to remit the matter. All issues of my application are under remittance.
Compliance
Since last supplying submissions for this application the applicant was to attend Surry Hills Police Station again on 18 November 2007 to view the CCTV footage. This did not eventuate, as again the CCTV footage was not available at Surry Hills Police Station. ...
Adequate searches
I do not accept that adequate searches have been made. The applicant has asked for the material to be procured independently of O'Neil and other possibly interested persons and yet all roads continue to lead to Rome. It is not satisfactory for the NSWPF to run administrative systems that are conducive to not be able to find evidence in their interests, and then use this as a justification that sufficient searches have been made in proportion to their administrative systems.
NSWPF Decision of 22 October 2007 1, 2 and 3
The Code of Conduct for Crime is already possessed by this writer. ... As such this document does not qualify as documentation to be provided under my application number 10.
The applicant accepts the decisions 1 and 2 of 22 October 2007 to give her a copy of the letter from Ms Kiernan addressed to LAC Commander Surry Hills LAC Command and the two page report dated 12 July 2005 from O'Neil. The Code of Conduct for Crime is not accepted, as it does not qualify.
Where I think NSWPF have gone wrong and why I am not happy with their response of 22 October 2007
I still seek my FOI application and its submissions to be determined by the Tribunal. I still seek the costs listed at the bottom of my application.”
9 Ms Kiernan requested that the Commissioner present to the Tribunal a copy of tape 52 that does not black out between 2.26 am and 2.28 am (“the blacked out section”) and evidence that that section of the tape was not deliberately blacked out.
“Only tape 53 shows any member of the public. This tape does not show any thing of interest to me and I don't need it. The other three tapes are just of myself and police officers between 1.00 am and 8.00 am on 27 March 2005. A copy of these three can be issued to me to possess, as the privacy of arrested persons is not an issue, as they do not appear in the tapes. I would prefer both CD and video copies thanks.
Tape 52 blacks out between 2.26 am and 2.28 am. This timing is significant as the arresting police officer said that a dialogue occurred here beginning at 2.25 am. This alleged dialogue was recorded in his police notebook, which has sadly gone missing, and used adversely against me in court. The other tape that displays the same content but from a such a long distance, tape 55, is such poor quality, that I cannot prove that this dialogue certainly did not happen. There are suspicions that this close up footage has been deleted on purpose. …”
The Commissioner’s case
10 Mr Sheather appeared on behalf of the Commissioner and provided written submissions in response to those provided by Ms Kiernan. He summarised Ms Kiernan’s submissions in the following terms:
“27. The applicant submits in her letter dated 12 September 2007 that:
28. The applicant submits in her letter dated 21 November 2007:
A. “In my opinion there is CCTV of what happened once in the cells …”
B. "Mr Montgomery cannot refuse me possession (of the CCTV footage) on the grounds that he is protecting the privacy of arrested citizens"
C. "I request an Order from the Tribunal for viewing to take place in a recorded interview room at a police station with executive members of the Force conducting the process. Even better, I request the ADT to make an order that another state agency, who is politically disinterested, to conduct the viewing without any interference from the police so there can be no problems."
D. "The writer asks Mr Montgomery to reconsider if there is any truth to the rule the police refer to about this ('policy' of not filming/video recording of cells) and if they should be left to withhold the footage of the cells or the police document explaining how they are entitled to do so."
E. "... all video surveillance of all cells and custody situations I was in at Surry Hills Police Station on 21 March 2005" is narrowed to the period of time that I was at the Surry Hills Police Station."
F. "Since last supplying submissions for this application the applicant was to attend Surry Hills Police Station again on 18 November 2007 to view the CCTV footage. This did not eventuate as again the CCTV footage was not available at Surry Hills Police Station. Under these circumstances, I ask the Tribunal to make Orders that bypass the NSWPF and enable the applicant to access the material."
11 Mr Sheather provided a response on behalf of the Commissioner in relation to each of those issues as follows:
G. "I do not accept that adequate searches have been made ..."
H. "I still seek the costs listed at the bottom of my application." ”
12 In support of that submission Mr Sheather relied on the decision in Cachia v Hanes (1994) 179 CLR 403 as the basis of the principle that "costs" do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. Mr Sheather also relied on the decision in Sawires v Commissioner of Police, NSW Police [2006] NSWADT 34 where Hennessy DP applied this principle. The Deputy President stated that even if she was satisfied that there were special circumstances warranting an award of costs, Mr Sawires would not have been entitled to costs because he did not incur any liability for professional legal services.
30. Submissions in response to letter of 12 September 2007:
This issue has already been dealt with by the Tribunal at paragraph 28 of the written findings of Judicial Member Montgomery dated 10 September 2007.
A. “In my opinion there is CCTV of what happened once in the cells …”
31.
I note at paragraph 29 of Judicial Member Montgomery's decision that he is of the view that the exemption clause, section 6(1) of the Freedom of Information Act 1989, is applicable to the CCTV footage. The respondent maintains that this exemption is applicable. As Judicial Member Montgomery stated "In light of the sensitive nature of the content of the tapes and the inclusion of others on the tapes, it is appropriate that access be limited to that provided for by section 27(1)(c) of the FOI Act.
B. "Mr Montgomery cannot refuse me possession (of the CCTV footage) on the grounds that he is protecting the privacy of arrested citizens"
32.
It is the respondent's respectful submission that the Tribunal does not have the power to make such an order or impose such restrictions on the Agency.
C. "I request an Order from the Tribunal for viewing to take place in a recorded interview room at a police station with executive members of the Force conducting the process. Even better, I request the ADT to make an order that another state agency, who is politically disinterested, to conduct the viewing without any interference from the police so there can be no problems."
33.
The Tribunal has received evidence from the Respondent agency in relation to this issue and has accepted that evidence. The applicant is requesting the Tribunal to sit in appeal of itself, which clearly, it cannot do.
D. "The writer asks Mr Montgomery to reconsider if there is any truth to the rule the police refer to about this ('policy' of not filming/video recording of cells) and if they should be left to withhold the footage of the cells or the police document”
34.
The applicant's initial request for Internal Review was couched in the terms described above at paragraph 2. The Internal Review conducted by the Agency dealt with that very request in those terms. Judicial Member Montgomery stated at paragraph 29 of his written findings "This is a very broad request. It is not narrowed to the period of time that she was at the Surry Hills Police Station."
E. "… all video surveillance of all cells and custody situations I was in at Surry Hills Police Station on 27th March 2005" is narrowed to the period of time that I was at the Surry Hills Police Station."
This issue has been dealt with by the Tribunal and the decision of the Tribunal was unfavourable to the applicant. The applicant is, in essence, asking the Agency and the Tribunal to deal with a 'new' request for the documents in issue in order to overcome a deficiency in her initial application. In the respondent's submission, that is not appropriate, nor is it capable of consideration.
35. Submissions in response to letter dated 21 November, 2007:
36.
At 11.10 am Friday 7 December, 2007 I telephoned Superintendent Donnelly in relation to this issue. He advised me that arrangements were made for the applicant to attend the Station on 18 November, however, the police officer who had personal knowledge of the arrangements and was to assist in the viewing process was 'unavailable' that day. Subsequently, the tapes were not viewed by the applicant.
F. "Since last supplying submissions for this application the applicant was to attend Surry Hills Police Station again on 18 November 2007 to view the CCTV footage. This did not eventuate as again the CCTV footage was not available at Surry Hills Police Station Under these circumstances, I ask the Tribunal to make Orders that bypass the NSWPF and enable the applicant to access the material."
37. Superintendent Donnelly advised me that Inspector Karen Myers has since contacted the applicant and arranged another time and date for the applicant to view the tapes. …
39.
This issue has been addressed previously by Judicial Member Montgomery at paragraph 28.
G. "I do not accept that adequate searches have been made ... "
40.
I assume that the applicant is referring to a letter sent to the NSW Police, FOI Unit dated 14 July, 2006 where she asks for " reimbursement of the following fees by NSW Police: $18.00 for original FOI request; $18.00 for this request; $23 for a review of this one when you don't comply with it, $55 for another ADT fee to make NSW Police comply, $63.00 for subpoena returnable 28th November 2005 and $63 for subpoena returnable 6th February 2006, given that all these fees have been paid by me to expose the police's wrong doing and that they have not complied with any of them."
H. "I still seek the costs listed at the bottom of my application."
Section 88 of the Administrative Decisions Tribunal Act 1997 states that the "Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs."
41. In order for a party to get an order for costs the party must demonstrate that 'special circumstances' exist and that those special circumstances warrant an award of costs. ...
42. The respondent submits that there are no 'special circumstances' in this case that warrant an order of costs in favour of the Applicant and accordingly no order of costs should be made.
43. Even if it could be said that 'special circumstances' exist in this case, the applicant has not 'incurred' any legal expenses”
13 Mr Sheather argued that the same principle applies in the circumstances of this matter and accordingly no order of costs should be made.
Findings
14 I agree with Mr Sheather’s argument that the majority of the issues raised by Ms Kiernan were determined in the first decision. In her determination dated 28 September 2007 Chief Inspector Scholz fairly summarised the findings in the first decision as follows:
15 I do not agree with Ms Kiernan’s argument that all other aspects of the decision are not yet finalised. As indicated above, I made a number of findings in the first decision. I do not propose to revisit those issues which have already been determined.
“the matter was remitted to the Respondent for re-consideration by this Agency under section 65 of the Administrative Decisions Tribunal Act 1997 in relation to the following matters:
1. To make arrangements for the Applicant to view the relevant CCTV footage;
2. To release the letter of Ms Kiernan addressed to 'LAC Commander Surry Hills LAC Command' dated 12 July 2005 (2 pages);
3. To release the report of M. O'Neil dated 24 July 2005 (2 pages);
4. To conduct further searches in relation to the Code of Conduct for Crime; and
5. To conduct searches for documents that may indicate 'why Matthew O'Neil disclosed her address when serving an application to extend an AVO on 6 July 2005 when that AVO has her address marked 'not to be disclosed' by the court'.”
16 Chief Inspector Scholz determined to release in full (1) the Letter from Ms Kiernan addressed to 'LAC Commander Surry Hills LAC Command' dated 12 July 2005; (2) the Report of M. O'Neil dated 24 July 2005 and (3) The Code of Conduct for Crime.
17 Chief Inspector Scholz also caused searches to be undertaken in an effort to locate any other documents that fall within the ambit of Ms Kiernan’s requests.
18 In accordance with section 28(1)(b) of the FOI Act Ms Kiernan was advised that that the agency does not hold any further documents in relation to this matter.
19 On the basis of the material that is before me I am satisfied that the searches that the Commissioner’s delegate has undertaken were sufficient. With the exception of the search that I propose below, I do not think that the Commissioner should be required to carry out any further search in the matter.
20 In the first decision I stated that I was satisfied that there are no other video surveillance tapes showing the cells or the charge room at Surry Hills Police Station on 27 March 2005 other than the four tapes identified as tapes 52, 53, 54 and 55. I stated that I considered that it is appropriate that Ms Kiernan’s access be limited to that provided for by section 27(1)(c) of the FOI Act and that the Commissioner should make arrangements for Ms Kiernan to view the tapes.
21 It is apparent from the material filed by the parties that Ms Kiernan attended the Surry Hills Police Station on 30 January 2008 to view the tapes. She has asserted that part of one of the tapes (tape 52) was blacked out. As a consequence of that assertion I have reviewed the copies of the tapes that were filed with the Tribunal and I note that the Tribunal’s copy of tape 52 is also blacked out in the identified section. I have no basis on which I can conclude whether or not the tape has been deliberately blacked out. The Commissioner has not addressed this issue.
22 That being the case, it is my view that neither the copy of the tape numbered 52 that was filed with the Tribunal nor the copy that Ms Kiernan viewed is the complete tape. In the circumstances I am not satisfied that Ms Kiernan has been provided with an opportunity to view all of the tapes.
23 It is appropriate that the matter be remitted to allow the Commissioner to locate a copy of tape 52 in which the period between 2.26 am and 2.28 am has not been blacked out and make arrangements for Ms Kiernan to view the tape. If the period between 2.26 am and 2.28 am has been deliberately blacked out, the Commissioner is to advise Ms Kiernan and the Tribunal as whether any exemption is claimed in relation to the identified section.
24 This process is to be finalised within 21 days of the date of this order.
Orders
The matter is remitted for reconsideration by the Commissioner pursuant to section 65 of the Administrative Decisions Tribunal Act 1997.The matter is listed for further directions at 11am on 4 March 2008.
4
3
2