Kiernan v Commissioner of Police, NSW Police - [2007] NSWADT 207

No judgment structure available for this case.

CITATION: Kiernan v Commissioner of Police, NSW Police [2007] NSWADT 207

DIVISION: General Division

PARTIES: APPLICANT
Teresa Kiernan
RESPONDENT
Commissioner of Police, NSW Police

FILE NUMBER: 063419

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 27 June 2007

DATE OF DECISION:
10 September 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: access to documents - adequacy of search - access to documents - document available from agency

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35
Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195
Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187

REPRESENTATION:
APPLICANT
In person
RESPONDENT
W Pisani, Solicitor

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 10am on 22 October 2007.

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:

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 No. 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 NSW 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 NSW 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.”

2 The Commissioner failed to determine the application within the 21-day period provided for under the FOI Act. Accordingly, pursuant to Section 24(2) of the FOI Act, the Commissioner was deemed to have refused the application. Ms Kiernan then sought an internal review in relation to the deemed refusal.

3 On internal review the Commissioner’s delegate made the following determination:

2. To refuse release of the following electronic documents, pursuant to Section 25(1) of the Freedom of Information Act on the grounds of the exemption listed at Clause 6(1) of Schedule 1 of the Act:-

(b) CCTV Tape 574;

(c) CCTV Tape 575;

(d) CCTV Tape 576; and

(e) CCTV Tape 577.

4 Ms Kiernan has now applied for external review of that determination. The matter was listed for hearing on 16 May 2007 but was adjourned prior to evidence being heard. It was re-listed for hearing on 27 June 2007 but prior to that date the parties agreed that the matter should be determined on the papers without the need for further hearing.

Relevant Legislation

5 Section 5 of the FOI Act relevantly provides:

(1) The objects of this Act are to extend, as far as possible, the rights of the public:

(a) to obtain access to information held by the Government, and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

(2) The means by which it is intended that these objects are to be achieved are:

(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and

(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and

(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.

(3) It is the intention of Parliament:

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

(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.”

6 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act.

7 Section 24 of the Act provides:

(1) After considering an application for access to a document, an agency shall determine:

(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and

(b) if access to the document is to be given-any charge payable in respect of the giving of access, and

(c) any charge payable for dealing with the application.

(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates.

(2A) Nothing in subsection (2) prevents an agency from determining that access should be given to the document even though more than 21 days have elapsed after the application was received by the agency. Sections 64 and 65 apply to access given pursuant to such a determination in the same way as they apply to access given pursuant to any other determination under this Act.

(3) This section does not require an agency to determine an application that the agency has transferred to another agency under section 20 or has refused to continue to deal with under section 22.

8 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(4)(a) provides, in part, that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted.

9 Section 27 of the Act provides:

(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.

10 Section 61 of the FOI Act provides that the burden of establishing that the determinations are justified lies on the agency.

11 Clause 6 of Schedule 1 of the FOI Act provides:

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

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

12 The Commissioner relies on the reasoning presented in regard to the internal review determination. This states in part:

Reasoning Process

Points 11 & 13 of the Application

Points numbered 11 and 13 of the Application appear to infer that there is an onus on this agency to produce information, conduct investigations, or generally answer questions in response to Ms Kiernan's request under the Act. The investigations requested by Ms Kiernan include a request that we investigate the occurrence of a TIE upgrading project on 28 October 2005, and to substantiate the decision to refuse the Applicant bail. Indeed, the entire tenor of the Application appears to be one of complaint against the conduct of this agency and its officers generally, with reference to the Applicant's dealings with the same.

It is my belief that this is not the case, and that the FOI application process is not a possible avenue for individuals to pose questions and to be provided with appropriate answers. Within the scope of the Act, there is no requirement or obligations upon agencies to conduct research, or to create or bring documentation into existence to satisfy an application. Furthermore, the Act does not require the agency to respond to or conduct research in relation to questions posed by applicants. The Act rather provides for individuals to be given access to documents held by government agencies.

The Applicant has failed to request specific documents, but rather has requested that this agency conduct a general search for material which may substantiate her allegations, as canvassed above. Indeed, it appears that the Applicant seeks an enquiry into the conduct of an officer or officers of this agency, and I note that the FOI places no obligation on this agency to conduct any such enquiry.

We accordingly refuse to conduct any such investigations as requested by the Applicant, given that there is no obligation imposed by the Act on this agency to carry out the same. We note that there are appropriate avenues through which the Applicant is able make complaint in respect of the behaviour of individual police officers and in respect of this agency generally, by approaching the NSW Ombudsman or the internal NSW Police complaints management team.

Accordingly, I hereby advise that no record or document, as described by the Applicant in points 11 and 13 of her application, exists, and the Applicant is so advised pursuant to Section 28(1)(b) of the Act.

Point 12 of the Application

I note, after perusal of this portion of the Applicant's request, that the Applicant again appears to seek this agency conduct a general enquiry into the conduct of its officers, and in this respect, I refer her to my comments above.

However, I note that we have located one document, namely, a Form 7 ("Reason for Bail Decision") document, which appears to fall within the broad ambit of this request generally, given that it supplies the reasons for the Applicant's bail refusal. I note that the Applicant would already have been served with a copy of this document, and accordingly I have determined to release a further copy of the same in full to her,

Point 10 of the Application

I have located the following video tapes falling within the ambit of point 10 of the Applicant's request:-

1. CCTV Tape 573;

2. CCTV Tape 574;

3. CCTV Tape 575;

4. CCTV Tape 576; and

5. CCTV Tape 577.

I decline to comment on the allegations made by the Applicant in the latter part of this point of her application, for reasons similar to those canvassed above.

After viewing the video tapes listed above ("the documents in issue"), I have determined to reach a decision in respect of the same in light of the exemption listed at Clause 6(1) of Schedule 1 of the Act.

Exemption pursuant to Clause 6(1) of Schedule 1 of the Act Personal affairs

Although the term "personal affairs" is not defined in the Act, a general definition of the same can be garnered from the body of case law on the subject as being “matters of concern to the private individual” [Re Williams and Registrar of Federal Court of Australia (1985) 3 AAR 529 at 531] and include information regarding a person's name, address, telephone number, age, criminal investigations or charges, marital/de facto/domestic relationships, taxation/financial affairs and medical affairs.

His Honour Justice Kirby expanded on this definition further in the matter of Perrin [(1993) 31 NSWLR 606], and held the view that the scope of the term "personal affairs" should be determined in the light of the democratic objectives which were the object of the Act, with particular reference to the facts of the case at hand.

Therefore, the exemption is to ensure that the competing public interests of preserving personal privacy, and ensuring that individuals having access to the workings of government by being able to apply for information being held by the government, are balanced appropriately. The Act attaches considerable significance to the personal affairs of a natural person, and such information will be protected unless the public interest is seen to outweigh the importance of preserving the privacy of personal affairs.

The exemption will only be applicable where:-

2. in circumstances where disclosure to the applicant would involve an unreasonable disclosure of the third party's personal affairs.

Does the information contained in the documents relate to the Applicant's personal affairs?

The contents of the video tapes disclose footage of the Surry Hills Charge Room for the date of 27 March 2005. I have viewed the same, and confirm that the material contained therein includes personal information relating to parties other than the Applicant, by way of visual display in the footage of the faces of various persons other than the Applicant.

Accordingly, as material contained within the documentation outlined above concerns the personal affairs of persons other than the Applicant, they satisfy the first limb of the test (above) in relation to personal information.

Would disclosure be unreasonable in the circumstances?

In reaching a decision as to whether disclosure would be reasonable in the circumstances, I have taken into consideration the fact that the documents in issue (that is, the video tapes) must be assessed in light of the fact that disclosure, as defined by the Act, is disclosure to the whole world and not merely the Applicant, as the Act contains no provision to impose conditions on how the Applicant can use or disseminate the information provided.

When considering whether disclosure is unreasonable; matters such as the circumstances of the incident, including the nature and content of the information, the circumstances in which the information was obtained and the likelihood of the information being information that the person concerned would not wish to be disclosed, should be examined [Re Chandra and Minister for Immigration and Ethnic Affairs (1989) 6 ALN 257]

Much of the information contained in the footage relates to persons other than the Applicants, in particular, to other parties meeting with Police, and being charged, within the Surry Hills Charge Room. The information includes reproduction of all persons meeting with Police in Surry Hills Charge Room on the date of 27 March 2005, and footage of these other persons. I have also taken into account the fact that these persons are dealing with Police in relation to criminal offences with which they have been charged, and in my view, for these reasons the documents in review are of peculiar sensitivity.

Further, there is no evidence within the footage to suggest that these parties (other than the Applicant) displayed on the video footage, consented to disclosure of their images to the world at large. On the contrary, it is clear, in my view, (particularly in relation to those persons who had been charged) that they would desire such information to remain private.

Consequently, I am of the view that disclosing such information would be prejudicial to those persons' affairs [As held in Re Anderson (1986) 11 ALD 355] and thus would be unreasonable in the circumstances.

Conclusion

In coming to this conclusion I have examined all relevant interests and have taken into account the circumstances of the incident. As noted above, I must subject the facts of the matter at hand to a balancing test, by considering the public interest considerations both in favour of and against disclosure of the information and displaying that the factors against disclosure outweigh those in favour of disclosure.

I have also looked at the documentation as a whole and in accordance with the finding in Re Wong and Department of Immigration and Ethnic Affairs [(1984) 2 MR 208 at 210], I have found that the context in which the information appears, that is, the context of a police investigation, render such information to be of a sensitive nature.

Accordingly, for these reasons I am of the view that an exemption pursuant to Clause 6(1) of Schedule 1 of the Act applies to the personal affairs information contained in the documents reviewed above.

However, in keeping with the objectives of the Act, I have also considered the document in light of Section 27(1)(c) of the Act (cited in full above), which provides that, in the case of a document from which sounds or visual images (as making arrangements for the Applicant to view such images.

I am of the view that in the circumstances it would be appropriate for the Applicant to obtain access to the document in issue by viewing the same, and I invite the Applicant to make mutually agreeable arrangements, in writing, for such access with Local Area Commander, Superintendent Donnolley of Surry Hills Police Station.

13 The Commissioner also relies of affidavit evidence provided by Sergeant Sean Lewis of the Surry Hills Local Area Command and Ian Elgey of the Business Technology Services Section of the New South Wales Police.

Sergeant Lewis’ evidence

14 Sergeant Lewis gave evidence that he was tasked with investigating a complaint in relation to a number of officers lodged by Ms Kiernan. He annexed a copy of the complaint file to his affidavit. He also gave evidence that he undertook a further search on the Police TRIM (Tracking Records Information Management System) for any other correspondence received from Ms Kiernan. No further correspondence was identified or located as a result of that search.

15 Sergeant Lewis gave evidence that he conducted a number of inquires which included a search for any document which may have referred to Senior Constable Matthew O’Neil allegedly disclosing Ms Kiernan’s residential address. The documents located are contained within the complaint file.

16 He said that he is not aware of any other searches that may reasonably be conducted in an attempt to locate any such correspondence.

17 Sergeant Lewis viewed four videotapes of the charge room of the Surry Hills Local Area Command. The cell area is not recorded. He said that the Surry Hills Local Area Command does not videotape the cell area and he is not aware of any police policy or standard operating procedure, which requires the cell area to be video taped. The 'NSW Police Standard Operating Procedures for Video Surveillance in Police Charge Rooms and other locations in Police Stations' does not require the cell area to be video taped. A copy of that document and copies of the tapes have been provided to the Tribunal.

18 Sergeant Lewis also gave evidence that he conducted an audit of the police Computerised Operational Policing System. That audit revealed that there were four other persons in custody throughout the time that Ms Kiernan was in custody at the Surry Hills Police Station on 27 March 2005. He said that he would expect these persons to be depicted at some point on the tapes. He said that he is not aware of any police policy or standard operating procedure that limits police access to persons in custody to more than one officer.

Mr Elgey’s evidence

19 Mr Elgey is team leader within the police Infrastructure Services where he is responsible for implementation of new IT projects within the NSW Police service.

20 Mr Elgey gave evidence that NSW Police implemented the Technical Infrastructure Enhancement (TIE) project over a period of two years commencing in late 2004. A key component of this project was the systematic upgrading, refreshing or replacing all personal computers at every site within NSW. In each situation, the PC had its hard drive either totally erased, or physically destroyed and replaced so that a standard version of Windows XP could be installed. Also included was the replacement of a number of superseded personal computers at various locations. He estimated that approximately 12,000 PC's were effected by the TIE project.

21 He said that he is aware that the Surry Hills LAC was converted to Windows XP in 2005. He provided an excerpt of the TIE Master Schedule specific to the Surry Hills. This document indicates that the bulk of work was conducted from 26 April 2005 to 5 July 2005. These dates included staff training in relation to the operation of the relevant systems. He said that the area commonly known as the muster room (which included the Front of House) at the Surry Hills LAC had nine PCs, four of which were replaced on 25 October 2005. The old PCs were physically removed, and the hard drives permanently erased. Of the remaining PCs, three were updated on 27 April 2005; a further PC was updated on 5 August 2005. The remaining PC was physically replaced on 5 January 2007. Mr Elgey included a schedule relating to the TIE project in his affidavit.

Ms Kiernan’s case

22 Ms Kiernan asserts that the Commissioner’s determination that the CCTV tapes be made available for viewing does not answer her request for all footage. The content of those tapes is only of the charge room. She requested all video surveillance of all custody situations she was in on 27 March 2005. She says that this is significant because is trying to prove that she was assaulted in the cells and needs the video footage to prove this. The Commissioner has declined to give her access to the video footage of herself in the cells where she says she was assaulted by police officers.

23 Ms Kiernan provided written submissions in support of her application. In her submissions she responded to the evidence presented on behalf of the Commissioner. In part her submission states:

If the affidavit is considered despite the applicant's request, the appellant insists the annexure referred to in the affidavit of Sgt Sean Lewis should not be confidential and should have been provided to the applicant. There should be nothing secret about NSW policy documents and police standard operating procedure for video surveillance in police charge rooms and other locations in police stations as this publicly funded video equipment is in the public's interest to avoid police violence and police frame-ups. It is a public issue and it is not in the public interest for the police to make this policy confidential or to have any other control over video surveillance.

If the affidavit is considered despite the applicant's request, it is to be noted that Sgt Sean Lewis claims at numbered paragraph 4 he viewed four video tapes 52, 53, 54 and 55 and says that the content was the same as he previously viewed in July 2005. Mr Scholz say in the NSW Police Review determination of 29 September 2006 that he viewed tape 573, 574, 575, 576 and 577.

The Review permitted the applicant access to view the tapes but not possession of copies as she requested.

Arrangements to view these tapes failed and were accompanied by false allegations made by Mr Pisani 16 May 2007 that the applicant had been 'asked to leave' the viewing meeting of 26 April 2007 at Surry Hills Police Station, the same place of her arrest. It is important to note that the viewing failed because all of the tapes offered at that viewing did not have any footage of the date or time of her arrest or of her. All the footage was of other people and the time and date counters were set in 2006. The tapes had either been wiped over or were substitutes. False allegations that she was asked to leave will not alter this fact or the following one.

At the same meeting a previous Tribunal Order to permit the applicant to view the photostat of the whole police notebook was to be executed. However, this was not present and instead an excerpt of the notebook was offered of the same she had procured via a previous subpoena before she made the FOI request to view the whole of the police notebook. Inspection of the excerpt tended to show that it had been faxed by Mathew O'Neil as it was faxed from Goulburn Education Services and contained his handwriting on the fax coversheet. As such, this Order was not complied with and Mathew O'Neil continues to be allowed to control maladministration in regards to the applicants FOI and subpoenas about him. Subsequent correspondence to Commander Donnelly by the applicant reporting these two issues and requesting access has been ignored to this day.

The applicant should be allowed to possess all the footage of her arrest of the 27 March 2005. This footage will show that Mathew O'Neil lied under oath in police statements and in the Local Court about events that occurred whilst she was in custody. It will show that he and another officer went into the cells area which is necessary evidence for the applicant to prove that she was assaulted in the cell, and if there is no footage of this incident due to a practice of not recording people in cells then it is necessary for her to obtain this evidence to argue that entering the cell area under those conditions is contrary to practice. One particular policy it is contrary to is the Code of Conduct for Crime where custody management is to be managed by different police officers than investigating police officers to avoid abuse, and as such the footage is necessary to show that these non-custody managers were entering the cell area which is reserved for custody managers.

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. It will necessary for such arrangements to be stipulated in a Tribunal Order so that the police cannot use the opportunity to destroy evidence or otherwise muck around.

The affidavit of Ian Elgey deposed 3 April 2007 should not be allowed as it is contrary to the Freedom of Information (FOI) Act and is an abuse of process. The Police's internal review of 29 September 2006 says at page 3 paragraph 2, in response to the applicant’s request at numbered paragraph 11 that the FOI Act "does not require the agency to respond to or conduct research in relation to questions posed by applicants. The Act rather provides for individuals to be given access to documents held by government agencies." Whereas oral, written submissions, witnesses and historic documentary evidence can be supplied to the Tribunal about the past TIE project, this affidavit not a historic document but rather is one that is produced instead of providing the historic information about the TIE project sought in numbered paragraph 11 in the application. This affidavit becomes a historic document after being so produced in response to not complying with the application, and can be produced as evidence in the future in other courts, tribunals or proceedings to cover themselves about citing a TIE project as an excuse not to provide evidence of electronic originals of police statements existing in computers which were last saved on a date that prove they were edited later than they were sworn to have been - evidence of a false arrest. If a NSW public sector agency has a TIE investigation there must be historical evidence of it. No thing happens in executive government informally. There will be evidence in the form of memos, minutes from meetings, project management schedules, signed off authorisations, invoices and the like. This is the historical evidence in existence where the documents to comply with the FOI request will come from. An response to the application that tends to show these documents do not exist will tend to show that no TIE investigation affected the loss of evidence in the computer that police statements were written on. However, the affidavit from Mr Elgey suggests that it did. This is the same tactic used in the disappearance of the police notebook. The substance of the FOI request was not supplied but an affidavit was instead.

24 Ms Kiernan has asserted that she is aware of the existence of documents that fall within the scope of her request that have not been provided to her. She has not presented any evidence in support of that assertion.

25 In Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 the President of the Tribunal held that where an applicant raises an argument that an agency has failed to locate relevant documents, and puts before the Tribunal some credible material or submissions which persuade the Tribunal that an arguable case exists, the Tribunal has jurisdiction to determine whether the agency has failed properly to determine the application so that there is a deemed refusal of the application for the purposes of section 24(2) of the FOI Act.

26 The issue of what constitutes an adequate search was considered by Deputy President Hennessy in Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]-[15]:

Re Anti-Fluoridation Association of Victoria and Secretary to Department of Health

15 The Tribunal noted in Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 that in determining whether an agency holds a document, evidence of searches carried out to locate the document will be relevant. The Tribunal observed at [19]:

All the Tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches or the reference of the cases to the Ombudsman

27 In Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187, President O’Connor DCJ stated at [30]:

What constitutes a ‘sufficient search’ will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency’s recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant.

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.

29 Ms Kiernan has sought “all video surveillance of all cells and custody situations I was in at Surry Hills Police Station on 27th March 2005”. This is a very broad request. It is not narrowed to the period of time that she was at the Surry Hills Police Station. I have viewed the tapes that have been provided and I agree that they contain images of other individuals. I also agree with the Commissioner’s view that the exemption in Clause 6(1) of Schedule 1 of the FOI Act is applicable to those images. I note however, that the vast majority of the material contained on the tapes does not fall within the scope of that exemption. I also note that much of the material on the tapes relates to activity at the Surry Hills Police Station on 26 March 2005 and is therefore outside the scope of Ms Kiernan’s request.

30 Section 27(1)(c) of the FOI Act provides that in the case of a document from which visual images are capable of being reproduced, access to the document may be given by making arrangements for the person to view those visual images. I note that the Commissioner offered this. It seems that some issues arose in regard to Ms Kiernan’s attempt to take up the offer and I am not aware of whether those issues have been resolved. 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 The right of access created by section 16 of the FOI Act is for access to “an agency’s documents”. A “document” is “held” by an agency if the agency has an immediate right of access to it, or it is in the possession or under the control of an officer of the agency. Nothing in the FOI Act requires an agency to create a document so as to provide specific information requested by an applicant. 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. It is appropriate that the matter be remitted to allow a further search to be undertaken. This search is to be finalised within 21 days of the date of this order.

32 Ms Kiernan has sought 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. 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.

33 Ms Kiernan has sought to be provided with documentation that addresses her previous query to Surry Hills LAC as to why Mathew O'Neil disclosed her 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. The Commissioner’s delegate was critical of the way in which she framed this request and interpreted it as request that the agency “conduct a general search for material which may substantiate her allegations”. The delegate refused to conduct any such investigation.

34 I do not agree with the delegate’s interpretation of the request. In my view it is reasonable for an applicant to identify existing documents by describing them. I agree with Ms Kiernan’s observation that it is often the case that applicants “are not familiar with a document's identifying labels and contents when information is sought that they have not yet been privy to, or that has been withheld from them, and this is the very reason why they are applying. It is also the case that an applicant may make a FOI application to prove that a class or kind of document does not exist”.

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. This search is to be finalised within 21 days of the date of this order.

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Administrative Decisions Tribunal Act

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Citations

Kiernan v Commissioner of Police, NSW Police [2007] NSWADT 207

Most Recent Citation

Kiernan v Commissioner of Police, New South Wales Police (No. 2) [2008] NSWADT 52

Cases Citing This Decision

5

Kiernan v Commissioner of Police, New South Wales Police (No. 3) (GD) [2010] NSWADTAP 32

Kiernan v Commissioner of Police, New South Wales Police (No. 2) (GD) [2010] NSWADTAP 18

Kiernan v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 38

Cases Cited

5

Statutory Material Cited

2

Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 200

Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195

Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35

CITATION:	Kiernan v Commissioner of Police, NSW Police [2007] NSWADT 207
DIVISION:	General Division
PARTIES:	APPLICANT Teresa Kiernan RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063419
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	27 June 2007
DATE OF DECISION:	10 September 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - access to documents - document available from agency
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187
REPRESENTATION:	APPLICANT In person RESPONDENT W Pisani, Solicitor
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 10am on 22 October 2007.