Lee v Commissioner of Police, NSW Police (GD)

[2006] NSWADTAP 20

Appeal Panel - Internal

CITATION:	Lee v Commissioner of Police, NSW Police (GD) [2006] NSWADTAP 20
PARTIES:	APPELLANT Steven Lee RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	069008
HEARING DATES:	28/04/06
SUBMISSIONS CLOSED:	04/28/2006
DATE OF DECISION:	05/11/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Pearson L - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	fail to apply principle correctly to the facts
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053123
DATE OF DECISION UNDER APPEAL:	01/09/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Re Anti-Fluoridation Association of Victoria and Secretary to Department of Health (1985) 8 ALD 163.
REPRESENTATION:	APPELLANT In person RESPONDENT W Pisani, agent
ORDERS:	Mr Lee’s appeal on a question of law is dismissed; Leave to extend the appeal to the merits is refused.

Introduction

1 Mr Lee applied to NSW Police under the Freedom of Information Act 1989 (FOI Act) for:

"Copies of master tapes 38 and 40 recorded during Operation Merlin that was admitted into evidence and used at trial."

2 The trial referred to in the application is his trial for the murder of Feng Shi. Mr Lee was convicted of that murder and is currently serving a term of imprisonment. He requested copies of the tapes because he says that the officer in charge of Operation Merlin, Sergeant Joseph Khalifeh, and the interpreter involved, incorrectly translated the tapes. NSW Police were unable to find the tapes and Mr Lee applied to the Tribunal under the FOI Act for a review of that decision. The Tribunal was satisfied that NSW Police had conducted an adequate search for the tapes and that consequently they did not “hold” any documents within the scope of Mr Lee’s request. Mr Lee has appealed to the Appeal Panel of the Tribunal against that decision. He participated by phone with the assistance of a Mandarin interpreter. Mr Pisani represented NSW Police as agent.

Appeal Panel’s jurisdiction

3 An appeal may be made to the Appeal Panel on any question of law. With the Appeal Panel’s permission, an appeal may extend to the merits of the Tribunal’s decision. (See s 118 of the Administrative Decisions Tribunal Act 1997 (ADT Act).) Mr Lee appealed on questions of law and sought leave to appeal on the merits.

Legal principles relating to adequacy of search

4 Under s 16(1) of the FOI Act “[a] person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.” The term “agency’s document" is defined in s 6 to mean “a document that is held by the agency.” Section 6(2)(e) provides that “a reference to a document held by an agency includes a reference to a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency”. Section 24(1) relevantly provides that after considering an application for access, an agency shall determine whether access is to be given or refused, and if access is to be given, any charge payable in respect of giving access. Section 28(1) requires an agency to give written notice to the applicant of its determination of the application. If the application relates to a document that is not held by the agency, the agency must give written notice of the fact that the agency does not hold such a document.

5 A determination by an agency such as NSW Police not to give a person access to a document because the agency does not hold the documents is a reviewable decision. (Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52.) The onus is on NSW Police to establish that its decision is justified. (See s 61 of the FOI Act.) There are two issues. The first is whether there are reasonable grounds to believe that the requested documents exist and are held by the agency. If the first question is answered in the affirmative, the next question is whether the agency has taken all reasonable steps to find the documents and is satisfied that they are not held by the agency. The adequacy of efforts made by an agency to locate documents the subject of an freedom of information access application are to be judged by having regard to what is reasonable in the circumstances: Re Anti-Fluoridation Association of Victoria and Secretary to Department of Health (1985) 8 ALD 163.

6 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.

7 In its Reasons for Decision, the Tribunal summarised the efforts that NSW Police had made to find the tapes at [6] and [7]:

At the time of Operation Merlin Detective Sergeant Khalifeh was attached to the Region North West Major Crime Squad (“RNWMCS”) based at Parramatta and he was later transferred to Blacktown Local Area Command. He has since retired and is no longer a serving NSW Police Officer.

The RNWMCS was disbanded in late 1996 and the general procedure adopted at the time relating to case file items, such as the master tapes sought by Mr Lee, was that they were entered as exhibits at the nearest Police Station, which in this case was Parramatta Police Station. Following receipt of Mr Lee’s FOI application, a search was conducted in an effort to locate master tapes relating to Operation Merlin. This included a search of the Parramatta and Blacktown LAC Exhibit Sections. These searches proved to be unsuccessful. The only items relating to Operation Merlin that were located are 10 tapes that are cuts from master tape 38.

8 The Tribunal concluded at [30] and [31] that:

I am unable to offer any opinion on the whereabouts of the two tapes or whether or not they have been destroyed other than to say that if the tapes were destroyed it was not done in accordance with proper procedure.

Having formed that view, it follows that I am satisfied that there are no documents held by the agency that falls within the scope of Mr Lee’s application.

9 Mr Lee told the Appeal Panel that he believes the tapes have either been destroyed or Sergeant Khalifeh has them in his possession. After reading Mr Lee’s written submissions and listening to his oral submissions, his grounds of appeal come down to two points. Firstly, he says that the Tribunal should have directed or ordered NSW Police to provide complete and accurate evidence about the whereabouts of the tapes. Secondly, he says that the Tribunal should have done something about his allegation that Sergeant Khalifeh acted unlawfully by either destroying the tapes or keeping them in his personal possession.

Appeal Panel’s conclusion

10 Both these grounds of appeal are based on a misunderstanding of the Tribunal’s powers. The Tribunal’s function was to conduct a merits review of the decision of NSW Police to refuse access because they did not hold the tapes (ADT Act, s 63). When reviewing such a decision, the Tribunal is governed by the provisions of the ADT Act and the FOI Act. The Tribunal only has the power to do the things that those Acts authorise it to do. As we have said, all the Tribunal can do when reviewing a decision not to provide access because an agency does not hold certain documents is to assess the evidence provided by the parties. The Tribunal has no investigative powers. Relevant evidence includes the nature and strength of the applicant’s suspicions that the agency holds the documents and the adequacy of the agency’s efforts to find them.

11 The Tribunal had before it logically probative evidence of the searches that had been undertaken to find the tapes. The Tribunal examined that evidence and was satisfied that NSW Police had conducted an adequate search. The Tribunal was satisfied on the basis of that evidence that NSW Police does not hold any documents that fall within the scope of Mr Lee’s application. Mr Lee did not dispute that finding. His view was that the tapes have either been destroyed or Sergeant Khalifeh has them in his possession. If that is the case, then the tapes do not come within the definition of an “agency’s documents” because they are not “held” by the agency. It follows that Mr Lee has no legally enforceable right to be given access to them under the FOI Act. That is consistent with the Tribunal’s order to affirm the decision of NSW Police.

12 Mr Lee has not identified any error of law either in the way the Tribunal went about its task or in its reasoning process. He is understandably very dissatisfied with the fact that NSW Police has not been able to locate the tapes. From his point of view, those tapes are critical to a claim he wishes to make for wrongful conviction. However, the Tribunal does not have the responsibility for investigating whether the tapes are held by someone else, nor does it have the power to investigate allegations of police misconduct. Mr Lee’s appeal on a question of law is dismissed.

Extending the appeal to the merits

13 Mr Lee sought leave for the appeal to be extended to the merits of the Tribunal’s decision. Since the decision in Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 it is clear that there is no need to establish that the Tribunal has made an error of law before granting leave to extend the appeal to the merits.

14 As we have said, in Mr Lee’s view, the tapes have either been destroyed or are in the possession of Sergeant Khalifeh. On that basis, the Tribunal’s decision must be correct because NSW Police does not hold the tapes. The Tribunal was satisfied on the basis of rationally probative evidence that an adequate search had been undertaken. For those reasons, we do not grant leave for the appeal to be extended to the merits of the Tribunal’s decision.

Orders

Mr Lee’s appeal on a question of law is dismissed.

Leave to extend the appeal to the merits is refused.