McDonald v Commissioner of Police, NSW Police Service
[2003] NSWADT 111
•05/19/2003
CITATION: McDonald -v- Commissioner of Police, NSW Police Service [2003] NSWADT 111 DIVISION: General Division PARTIES: APPLICANT
Richard Herbert McDonald
RESPONDENT:
Commissioner of Police, NSW Police ServiceFILE NUMBER: 023029 HEARING DATES: 15/11/2003 SUBMISSIONS CLOSED: 11/15/2002 DATE OF DECISION:
05/19/2003BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - adequacy of search - access to documents - confidential material - access to documents - law enforcement & public safety - access to documents - legal professional privilege - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - confidential material - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - legal professional privilege MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1982 (Vic)
Freedom of Information Act 1989
Police Service Act 1990CASES CITED: Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39
Waterford v The Commonwealth (1987) 163 CLR 54
Walden & Toni v Leichhardt Municipal Council [2001] NSWADT 81
Esso Australia Resources Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1999) 168 ALR 123
Grant v Downs (1976) 135 CLR 674
Gill v Brisbane City Council (Queensland Information Commissioner, 6 June 2001)
Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No 2) [1972] 2 QB 102
Waterford v Commonwealth of Australia (1987) 163 CLR 54
BY -v- Director General, Attorney General’s Department (No. 2) [2003] NSWADT 37
Re Gold and Australian Federal Police and National Crime Authority (1994) 37 ALD 168
Accident Compensation Commission v Croom [1991] 2 VR 322
Watkins v Chief Executive, Road Traffic Authority [2000] NSWADT 11
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Neary -v- The Treasurer, New South Wales [2002] NSWADT 261
Beesley v Commissioner for Police [2000] NSWADT 52REPRESENTATION: APPLICANT
M Gibian, barrister
RESPONDENT
J Tunks, solicitorORDERS: 1. The determination of the agency in respect of Documents 37A, 37B, 85 and 120 is affirmed.; 2. The determination of the agency in respect of Document 120 is varied. An edited version of the document is to be released with all references to names of persons other than the applicant deleted.; 3. The determination of the agency in respect of item 31 of the original request and items 32 to 34 of the original request is not affirmed, and the request in those respects is remitted to the agency for further consideration and a further response to the applicant within 30 days of the date of this determination.; 4. Liberty to the parties to apply within 14 days in respect of the terms of Order 3.
1 This application seeks review of a determination made under the Freedom of Information Act 1989 (FOIA) by NSW Police (the agency) to refuse his request for access to certain documents.
2 The applicant was at the time of making the original request and while the proceedings were before the Tribunal a constable suspended from duty. The grounds for his suspension related to performance concerns. The applicant had commenced service in November 1995. The applicant has been engaged in industrial proceedings against the agency over his suspension.
3 The original request was made in writing on 31 December 2001. It was a detailed request, identifying 35 categories of information to which access was sought; commencing with his personnel and medical files, moving on to psychological assessments and then for documents connected with the applicant’s involvement in a large number of operational situations. The request also sought documents in relation to the handling of various internal complaints and allegations – some made by the applicant and some against the applicant.
4 On 7 February 2002 the applicant lodged an application for review by the Tribunal of the agency’s original determination (issued 24 January 2002). At that time the agency had not completed its internal review of the determination. That was done on 13 March 2002. The internal review determination became the decision subject to the application for review.
5 The agency decided to release to the applicant the whole of his personnel file and the whole of his medical file. As to the remainder of the categories of documents sought, there were some releases in full and some were refused on the basis that there were other means by which the information could be obtained lawfully. But the most common reason given for refusing to release the documents sought was that the documents were ‘not currently held by this agency’, and ‘in accordance with s 28(1)(b) of the Act, the applicant is hereby advised’. Section 28(1) of FOIA provides:
6 This answer was given in relation to 20 categories of documents requested: see page 8 of the internal review determination. It was said that these documents were no longer under the control of the agency as they had been delivered to the District Court in response to a subpoena arising from criminal proceedings occurring there.
‘ 28. Notices of determination
(1) An agency shall cause written notice to be given to the applicant:
(a) of its determination of his or her application, or
(b) if the application relates to a document that is not held by the agency---of the fact that the agency does not hold such a document.’
7 There were a number of planning meetings leading to a reduction of the scope of the dispute. Final hearings took place on 30 July 2002 and 15 November 2002. As a result of evidence tendered on 30 July 2002 further enquiries were made by the agency, and further documents relevant to the original request were located.
8 The issues that now remain to be resolved are:
(i) the claims for exemption in support of the refusal to disclose six documents.
(ii) the adequacy of the search undertaken by the agency in respect of certain documents that were requested and have not been located.
(i) Claims for Exemption
9 (a) On the Ground of Legal Professional Privilege. This issue was dealt with at the hearing held on 30 July 2002.
10 At item 29 of the request, the applicant had sought access to:
11 The proceedings on 30 July 2002 dealt with the question of whether the document(s) covered by item 29 of the request were properly the subject of claims for exemption on the basis of legal professional privilege. An agency may refuse to disclose a document on the basis that the contents are subject to legal professional privilege. The relevant exemption is at cl 10 of Schedule 1 to FOIA, which provides:
‘29. All documents specifically relating to any investigation, analysis, review or similar description by Mr Michael Day, Solicitor from the DPP on secondment to the Special Crime and Internal Affairs Command, of allegations and complaints made by myself. I have been informed from Mr Richmond at SCIA that Mr Day has completed a document of the abovementioned nature that is approximately 30 pages in volume.’
12 The Tribunal has dealt in a number of cases with the criteria to be applied when determining whether a document is the subject of legal professional privilege; see, for example, Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39. The availability of legal professional privilege to protect the communications of government legal officers was resolved in favour of conferring protection in Waterford v The Commonwealth (1987) 163 CLR 54. This is not a case where any question of possible waiver of the privilege was raised, as to which see generally Walden & Toni v Leichhardt Municipal Council [2001] NSWADT 81.
‘ 10 Documents subject to legal professional privilege
(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.’
13 The Tribunal is obliged to ensure that it does not expose exempt matter in its reasons for decision. Section 55 provides:
14 In this case the agency produced the exempt document, and made submissions in camera as to why it should be afforded protection.
‘ 55. Procedure for dealing with exempt matter
In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.’
15 An open session followed the in camera session. The applicant and his solicitor, Mr Gibian, were, with the approval of the agency, informed that the document in issue was headed ‘legal advice’ and relates to the various complaints that the applicant has made against senior officers of City East Region, and had to do with the possibility of s 181D proceedings being instituted against the applicant. Section 181D of the Police Act 1990 empowers the Commissioner, by order in writing, to remove a police officer from NSW Police if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. Various safeguards surround the power of summary removal.
16 They were told that it was organised into 14 headings corresponding to each of the complaints made. The Tribunal advised that the document contained recitals of the facts that are seen as relevant by the author, and conclusions are expressed as to the legal significance of those facts in terms of the relevant responsibilities of the police officers. There are also conclusions expressed as to whether the complaints themselves breached any standards applicable to the applicant. The Tribunal also advised that whilst the advice alluded to s 181D proceedings, and the initial reason for the advice being tendered appeared to have more to do with whether the police officers against whom complaints had been made by the applicant had breached any relevant standards. The agency released over the luncheon break on 30 July, after this description had been given, the full text of the handwritten file note (previously the subject of a claim for exemption in connection with item 28 of the request) containing the instructions to Mr Day giving rise to his advice. The handwritten note is Ex B in the proceedings for 30 July 2002. The note on Office of Internal Affairs letterhead commences as follows:
‘please review this matter. Mr McDonald claims a ‘general city east’ ‘cover up’ of his complaints. McDonald is currently the subject of 181D proceedings.’
The note then goes on to give the names of persons with whom contact can be made for further information.
17 Mr Gibian said that it was the understanding of he and his client that summary removal proceedings were no longer contemplated against his client. If that was the case, and if the document in issue related to that possibility, then the circumstances no longer existed under which it was appropriate to treat the document as subject to legal professional privilege. This submission focuses on the question of whether the advice has been given for use in ‘actual or pending legal proceedings’.
18 But that does not dispose of all the possible circumstances to which legal professional privilege may attach. A document is protected by legal professional privilege if it is created for the dominant purpose of obtaining or giving legal advice or assistance, or for use in actual or pending legal proceedings: Esso Australia Resources Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1999) 168 ALR 123. The importance of this decision is that the High Court overruled the narrowing of the test for legal professional privilege by the High Court in 1976 in the case of Grant v Downs (1976) 135 CLR 674. In that case the High Court had held that for an advice to obtain the benefit of the privilege the ‘sole purpose’ for its creation must be to render legal advice or assistance. If a document had both a ‘legal’ and ‘non-legal’ purpose for its creation then it should not be accorded protection. On the other hand Barwick CJ expressed a less restrictive view, and considered that it would be sufficient to gain protection that the ‘dominant purpose’ for the creation of the document was one of ‘legal’ advice or for use in connection with legal proceedings. Barwick CJ’s represented a narrowing of the understanding as to the common law position as it had previously prevailed in Australia (see Esso at [39] per Gleeson CJ, Gaudron and Gummow JJ), but was, clearly, less restrictive than the ‘sole purpose’ approach.
19 It was against this background that Mr Gibian made a further submission, and raised for the Tribunal’s consideration the question of whether the advice was given by Mr Daly in his capacity as a legal adviser, or in some other capacity. In Esso, also at [39], Gleeson CJ, Gaudron and Gummow JJ referred to situations where the report or advice in issue might not have a ‘legal’ justification of the kind required to attract the privilege. Referring to the pre-1976 experience of determining whether the protection should apply they said:
- ‘In many cases the reports would result from established corporate or bureaucratic procedures, and the individual who made the report would simply be following instructions. It may be necessary to understand the internal procedures, or the objectives of some person of higher authority, in order to identify the purpose or purposes for which reports are prepared.’
21 The question, I agree, is whether the ‘dominant purpose’ for the preparation of the document was to provide legal advice or assistance. I accept that if an officer who happens to be legally qualified and admitted to practice is engaged to undertake a review that has an essentially administrative character then any resulting advice should not be given the protection of the legal professional privilege exemption. Work done in an executive capacity rather than pursuant to a relationship of lawyer and client would not be protected: see further Gill v Brisbane City Council (Queensland Information Commissioner, 6 June 2001) at [33] ff; also, Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No 2) [1972] 2 QB 102 at 129 per Lord Denning MR. It may be that there are other heads of exemption that could apply to such a document, for example internal working documents. It is important, I accept, that the legal professional privilege exemption only be utilised in contexts where the specialist advising skills that flow from legal training and experience are being employed; and they are provided in an arms-length relationship of the kind that exists between a lawyer and client.
22 In this instance Mr Day was legally qualified. He was an in-house lawyer. As noted earlier, this is not a barrier to the application of legal professional privilege: see Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 61. The advice was provided under the letterhead ‘NSW Police Service, Court and Legal Services, Operational and Special Advice Unit.’ It refers to the instructions giving rise to the advice. I have reviewed the document. Without exploring the detail of the document, it involves the exercise of independent judgment involving the application of legal knowledge in relation to such matters as to the strength of a complaint having regard to the evidence, the way the evidence of the complainant is likely to be evaluated by an independent body, as well as the way in which certain statutory provisions might be applied. I am satisfied that the document has, at least as its dominant purpose, the rendering of legal advice. The recommendations were not ‘merely administrative in character’: Gill at [37].
23 I am satisfied that the whole document is one to which the legal professional privilege has properly been applied. I have considered whether the document could be released in part; and do not consider that would be a practical course to adopt.
24 The claim for exemption is made out.
25 (b) On the Ground of Protection of Identity or Existence of a Confidential Source of Information; or Disclosure of Information Obtained in Confidence. These claims were dealt with at the hearing on 15 November 2002.
26 This part of the proceedings contained a session where evidence was given in camera without the applicant and his legal representatives being present. As noted earlier, the Tribunal must not in its reasons disclose exempt material: FOIA s 55.
27 Four documents were the subject of a claim for exemption as restricted documents protected by cl 4(1)(b) of Schedule 1 to FOIA (confidential source of information); and also the subject of a claim for exemption under one of the general categories of exemption, cl 13 of Schedule 1 to FOIA (information obtained in confidence). They were -
- · Document 37A , dated 3 August 2000: report from a police officer (said to be an informant).
· Document 37B, dated 3 August 2000: report from police officer (said to be an informant).
· Document 85, dated 23 May 2000: report from Chief Inspector Lapham referring to a report from a police officer (said to be an informant).
· Document 120, dated 21 August 2000: a contemporaneous note involving a person named Charles Miranda.
- ‘ 4 Documents affecting law enforcement and public safety
(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: …
(b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, …’.
- ‘ 13 Documents containing confidential material
A document is an exempt document: …
(b) if it contains matter the disclosure of which:
- (i) would otherwise disclose information obtained in confidence, and
(ii) could reasonably be expected to prejudice the future supply of such information to the Government or to an agency, and …
(iii) would, on balance, be contrary to the public interest.
…’
31 Read literally - without reference to the heading of cl 4 and other indications of context contained within cl 4, without regard to the overall scheme of the categories of exemption, and without regard to the objectives of the Act - the view might be formed that this exemption is designed to protect the existence or identity of any person who desires that their identity not be known and who gives direct or background information about some other person’s conduct relevant to the administration of a law of any kind passed by the Parliament that imposes regulatory or other sanctions in respect of that conduct.
32 I have expressed the view in a recent decision, BY -v- Director General, Attorney General’s Department (No. 2) [2003] NSWADT 37 that a more guarded approach should be adopted. If the context in which the document in issue has been generated is one that falls outside the scope of cl 4(1)(b) then the question of the degree of confidentiality that should be afforded to the document (including in relation to the existence or identity of the author of the report contained in the document) can still be examined by reference to cl 13. In BY (No 2), I endorsed a line of authority that supports a more guarded reading of the cl 4(1)(b) exemption. In that decision I gave the following account of the relevant law:
- 46 In Accident Compensation Commission v Croom [1991] 2 VR 322 the Appeal Division of the Supreme Court of Victoria addressed the scope of the equivalent Victorian provision. Here the agency responsible for assessing accident compensation claims sought to withhold its medical practitioner's confidential report on the applicant. The Court was not satisfied that the exemption at s 33(1)(c) of the Victorian Freedom of Information Act 1982 was applicable. That exemption provides that a document is exempt if it 'would, or would be reasonably likely to - ... disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law.'
47 Young CJ referred to the imprecise quality of much of the language of the FOI law. He indicated at 324 his agreement with the views of O'Bryan J on the interpretation to be given to the words 'the enforcement or administration of the law'.
48 O'Bryan J examined the statutory context in which the words appeared, and the kind of governmental interests that were addressed. He concluded at 328 that:
- 'A careful examination of all of the paragraphs in s 31 indicates to me that for a document to fall within one of the exemptions it should have a connection with the criminal law or with the legal process of upholding or enforcing civil law.'
- 'The plain meaning one might ascribe to this paragraph is that it is concerned with the protection of the 'informer' and not with the protection of a potential witness who would prefer not to be identified. Public interest has dictated for a long time the need to protect the true 'informer' but a reluctant witness has never attracted the immunity at common law.
... In my opinion, the words 'confidential source of information' do not apply to a potential witness in a civil proceeding who would prefer to remain anonymous for the time being. A potential witness cannot clothe himself with secrecy in relation to the administration of the law unless he is able to invoke 'informer' immunity. Nor may an investigator confer upon a potential witness 'confidential' status until it is convenient to his principal to reveal the name and address.'
- 'The phrase "administration of the law" in the context of similar legislation in Victoria was considered by Young CJ in Accident Compensation Commission v Croom [1991] 2 VR 322 where, at 324, His Honour said, to be exempt a document "should have a connection with the criminal law or with the processes of upholding or enforcing civil law". The Costigan Royal Commission was concerned with the investigation of numerous allegations of extensive criminal activity. Whilst it was an investigation carried on at the behest of the executive government (in this case both Commonwealth and states) rather than a trial conducted in a court, it would, in the tribunal's view, be an unduly narrow approach to characterise the activities of that Royal Commission other than as being concerned with the "administration of the law". It clearly has "a connection with the criminal law" and, therefore, falls within the ambit of the phrase as described by Young CJ in Croom's case, supra.'
- '37 I agree with the submission [by the agency] that this case provides appropriate guidance for interpreting cl 4(1)(b) of the NSW FOI Act. However, I consider that it does not support the application of that exemption to the present documents, but indeed the contrary. In my opinion, it indicates that the words "administration of the law" should be given a narrow meaning which requires the documents to be "concerned with the process of the enforcement of legal rights or duties."
38 The words "administration of the law" have no established or fixed meaning, and if given a broad reading are capable of encompassing most activities of any government authority. In my opinion, the statutory context of the words shows that such a reading was not intended.
39 The immediate context is the collocation with "enforcement of the law". I am inclined to think that cl 4(1)(b) is referring to only one type of document, for which "enforcement or administration of the law" provides a composite description of one element. Even if two alternative elements are referred to, "administration of the law" takes colour from the other element. The two elements share a connection with "law enforcement" in a broad sense of referring to the policing of criminal laws or civil obligations. The language of the exemption is directed at establishing for FOI purposes an exemption comparable with the "police informer" privilege in courts, with the reference to "or administration of the law" reflecting the extension of the privilege to informers not only to police agencies but also in some analogous situations (c.f. D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 230, 232, 241).'
34 Allegations of police officer ‘misconduct’ can cover conduct which might involve breaches of the criminal law. On occasions matters of internal complaint may turn into criminal investigations. Those factors may place the documents within the scope of cl 4(1)(b). In the case to which I have referred (BY) the misconduct alleged was, if proven to the requisite standard, criminal in character, but it was given to a body involved in the accreditation of candidates for entry into a profession. It did not have, as I see it, a context which suggest that it was given with a view to criminal investigations being undertaken. This case is not as clear.
35 Another reason for caution in the approach to be adopted in interpreting the various exemptions found in cl 4 is that those exemptions do not possess the balancing tests typical of many of the general exemptions and the rights of review of decisions to apply those exemptions and the companion exemptions in cl 1 (Cabinet documents) and cl 2 (Executive Council documents) are truncated. There are special limitations placed on the citizen’s ordinary rights of review where an exemption invokes cl 4 [and also cll 1 and 2]. (See the special provisions in the Act relating to ‘restricted documents’ (FOIA s 57; and ss58A, B, C; and my decision in BY -v- Director General, Attorney General's Department (No 1) [2002] NSWADT 79.)
36 As noted, if the cl 4(1)(b) exemption is not applicable, it will remain possible to deal with the issue of the degree of confidentiality to be attached to the document, including in relation to the identity or existence of the source of its contents, by reference to cl 13(b). It is not necessary to take this discussion any further.
37 Conclusions in respect of Documents 37A, 37B, 85 and 120. I have concluded that Documents 37A, 37B and 85 have properly been the subject of a claim for exemption under cl 4(1)(b) and cl 13(b). I have concluded that Document 120 has properly been the subject of a claim for exemption under cl 13(b).
38 Public Interest Considerations. The Tribunal has considered public interest considerations in the context of its examination of the applicability of cl 13(b). (In line with a decision delivered after this matter was heard, the Tribunal has not considered public interest arguments to the extent that they rely on a public interest override discretion said to derive from s 25 of FOIA: see generally Neary -v- The Treasurer, New South Wales [2002] NSWADT 261.)
39 [FURTHER CONFIDENTIAL REASONS IN SUPPORT OF THESE CONCLUSIONS ARE RELEASED ONLY TO THE RESPONDENT: CONFIDENTIAL APPENDIX A TO THESE REASONS.]
40 (c) On the Ground Only of Disclosure of Information Obtained in Confidence. As to Document 120, I have examined this document in the confidential reasons (Appendix A). There is, as I see it, no strong public interest case for withholding an edited version of this document. Though they may be known to the applicant by other means, all references to names of persons other than the applicant should be removed from the document and it should be released.
- (ii) Adequacy of Search Issues
42 The documents thought to exist and sought by the applicant were the following, using the terms of his original request:
- Item 12: ‘All documents created by the NSWPS that are in the nature of a threat, assessment or similar that specifically relate to threats made towards myself by members of the Saad family and associates.’
Item 31: ‘All documents specifically relating to a review of my suspension by the then Deputy Commissioner Jarrett about the 30/08/01.’
Items 32-34:
‘32. Any document in the nature of an assessment or similar conducted by the Internal Witness Support Unit Command (IWSU) that specifically relate to myself only.
33. All documents forwarded by myself or any other member of the NSWPS to the IWSU that specifically relate to myself only.
34. All documents forwarded by the IWSU to myself or any other member of the NSWPS that specifically relate to myself only.’
Item 35: ‘All documents specifically relating to the decision of the Court and Legal Services Command to withdraw legal representation (police prosecution) in the matter of Police v Saad in which I was the person in need of protection ‘PINOP’. The informant in the matter was Inspector Greenrod of Harbourside LAC. Mr Holmes, Mr Redfern and Mr Bell all of Court and Legal Services have possibly created documents in relation to this issue.’
44 He said that tracer requests were made to various parts of the service, including Redfern Local Area Command (LAC), Special Crime Internal Affairs, the IWSU and the Deputy Commissioner, Field Operations. Mr Dakin referred to the scale of the applicant’s original request giving rise to the Unit generating 26 separate requests across the entire agency for relevant documents (ts 18).
45 As to item 12 (threat assessment material) Mr Dakin said that based on his operational experience he thought there were four possible locations of any such material, LAC Redfern, LAC Rose Bay, the IWSU and the Region Command of City East Region. He said that he personally contacted each of these locations. He made follow up requests to the commander of the IWSU (Chief Insp Lapham), and she confirmed twice that she had made all material that it held available. In his view, he had exhausted all lines of enquiry as to the existence of documents of the kind described and none had been located.
46 The applicant drew attention to a reference to the making of a threat assessment in material produced to the Tribunal on 30 July 2002. Mr Dakin agreed in cross examination that there was such a reference, specifically that following alleged threats against the applicant by members of the Saad family a full threat assessment was made.
47 Mr Dakin said that it did not necessarily follow, based on his knowledge of police practices, that a document would result from the making of a threat assessment. He acknowledged that a situation involving threats against a police officer was one that would warrant serious consideration. He was challenged on the likelihood that such a matter would not be the subject of any record. He said ultimately he must rely on the advice from the LAC and in this case in particular Chief Inspector Lapham. He said that he had specifically asked C/I Lapham about any threat assessment document.
48 In the course of the luncheon break on 15 November, following Mr Gibian’s cross examination during the morning, further enquiries were made to Regional Commander, Inspector Adams leading to the location of material relating to the specific threat assessment made by Mr Adams. This outcome met the applicant’s concerns in respect of this aspect of the request (see ts 76-77).
49 As to item 31 (review of applicant’s suspension) Mr Dakin referred to sending tracer requests to the Deputy Commissioner’s office. The applicant’s personnel file had been obtained. One document was produced in response to this aspect of the request: a one page memorandum from the Deputy Commissioner to the applicant. No document recording the Deputy Commissioner’s review of the suspension decision (which review, it was acknowledged, had occurred) was found there. It was noted that Deputy Commissioner Jarrett was no longer a member of the service.
50 In cross examination the question was raised of whether it had occurred to Mr Dakin to make enquiries of the employee management section. Mr Dakin agreed that this section had a role in the treatment and support of suspended officers. He said that to his knowledge the unit held very few documents, and he had formed the view on this occasion that any contact with the officer in charge, Inspector Trusty, would be futile.
51 As to items 32-34 (assessments as to whether applicant should be given protection and support as an internal witness as to alleged police misconduct, and related material), Mr Dakin referred first to the operational difficulty of making direct contact with the IWSU. He said that the IWSU operates anonymously and it can only be reached through various intermediate contact points. He explained that mail addressed to it is left at an accepted transfer point and it is then picked up anonymously and given to the appropriate officers. Following receipt of its material in relation to the applicant, he reiterated that he had been informed twice, once in writing and once by telephone, by C/I Lapham that everything the Unit had had been made available. On this basis, Mr Dakin had concluded that there were no documents held which related to this area of the applicant’s request.
52 Mr Dakin agreed in cross examination that the only documents produced from C/I Lapham’s area that related to the applicant were ones containing communications between the applicant and C/I Lapham (ts 44).
53 As to item 35 (withdrawal of representation in the Saad matter), Mr Dakin said the position now was that after the last hearing on 30 July 2002 he had made further inquiries of a solicitor in the Legal Services section, Mr Howard Bell. He visited him and found that he had two folders in his possession relating to the case at the Local Court where the applicant had sought apprehended violence orders against members of the Saad family.
54 This material had now been made available to the applicant. Mr Dakin said it had been frustrating to find so much material in the possession of one of the solicitors, and not to have had it made available in response to the original tracer requests.
55 Ms Sommer Bath, records clerk, Legal Services Command of the NSW Police also gave evidence on the searches that had been undertaken within that Command (pertinent to item 35). She advised that she had done a computer search under the applicant’s name in the file index system kept by the Command known as ‘the Solicitor’s Companion’. She had located two files only, and they had been made available. Her evidence essentially was that unless the name of the applicant was in the file title itself, the search capabilities did not extend to finding references to names within the contents of files. Her evidence was not challenged in any significant respect.
56 As a result of questions from counsel for the applicant, Mr Dakin acknowledged that there were documents in the folders that might be relevant to the issue of withdrawal of legal representation by the Crown Solicitor. He said that he was unable to say conclusively whether they were treated as relevant, as it could not be seen from the file whether they were used by the relevant decision-maker in making the decision to terminate assistance. In re-examination Mr Dakin said that he had confirmed with Mr Bell the previous day (14 November 2002) in preparation for the hearing that Mr Bell had made available all materials relating to the applicant.
Applicant’s Criticisms of the Adequacy of Search
57 The applicant’s primary criticism of the police searches went to the failure to produce any evidence of what those who received the tracer files requests did once they received the requests. See further his affidavit, Ex HH.
58 Counsel for the applicant, Mr Gibian, noted that the steps taken were to send out tracer requests and then rely on the diligence and preparedness to assist the respondents to the request. It was acknowledged that sometimes Mr Dakin did make further enquiries. Mr Gibian made it clear that no criticism was meant of Mr Dakin who he saw as putting into effect an existing system.
59 As to the three items that remain in issue (items 31, 32-34 and 35), Mr Gibian submitted, basically, that it was not sufficient to rely on the result of the tracer sent to Deputy Commissioner Jarrett’s office (item 31), the assertions of C/I Lapham without detail as to what steps had been engaged in (items 32-34), and that, while some material had been found, none of it he said related to the withdrawal of representation and an AVO matter (item 35). The agency replied that a realistic approach had to be taken to what could be done, that, in particular C/I Lapham had mentioned having spent 12 hours searching, and Mr Bell (the holder of the files found in relation to item 35) had said he had made everything in his possession that was relevant available.
Assessment
60 Mr Dakin explained that he heads a unit with four staff. The unit handles numerous requests. The applicant’s request was clearly one of great scale. I accept in general terms that there are practical and resource limits that face Mr Dakin and the unit in the discharge of its responsibilities under FOIA. I also accept that the unit is called on to deal with an organisation of great spread and complexity, and one with onerous responsibilities. Mr Dakin also explained that there are increasing levels of security within certain parts of the organisation especially those that deal with protected witnesses and special forms of internal inquiry.
61 Mr Gibian’s criticisms of a system that substantially or totally relies on ‘tracer’ requests were cogent. At first glance it is difficult to see what alternative to ‘tracer’ requests (and acceptance of answers received) exists for a small FOI unit servicing a significant case-load affecting such a large agency with (necessarily often) tense and adversarial interactions with the public.
62 The FOI Unit will, I accept under the arrangements as depicted, often have to rely entirely on the senior officers of such units and trust that their replies are candid and frank. These considerations must feed into the question of what is an ‘adequate search’ in the circumstances.
63 Ultimately the responsibility to meet the requirements and spirit of the FOI Act lies with the agency as a whole and its commanders. There must remain, as I see it, some capacity for the FOI Unit to ‘go behind’ the answers that are received to tracer requests, especially where the answers appear to lack credibility having regard to what is known about the circumstances giving rise to the request. These issues arise in this case.
64 Mr Dakin was placed, as I see it, in a virtually impossible situation when it came to the requests addressed to C/I Lapham. The IWSU undertakes responsibilities of the highest sensitivity with the need to ensure very high levels of security and anonymity.
65 I have noted Mr Tunks’ submission that for the purposes of FOIA Mr Dakin is the delegate of the Commissioner. Nonetheless in my view there needs to be some additional mechanism to ensure that the FOI Unit can obtain satisfaction that reasonable searches have been undertaken when dealing with sensitive operational areas. As Mr Gibian observed, there were assertions from a senior officer of the IWSU that all that needed to be done had been done, but the details of what was done were not made known to the Tribunal (other than the reference to 12 hours of searching).
66 The question is raised as to whether in some circumstances an officer of great seniority and with trusted access to the specially secure units (such as the IWSU) may need to be involved in forming a view as to whether a satisfactory reply has been given to an enquiry from the FOI Unit.
67 The Tribunal can not, I consider, be reasonably satisfied that adequate steps have been taken to locate documents relating to items 32-34.
68 Nor on the present material can the Tribunal, I consider, be satisfied that the agency has undertaken an adequate search in relation to item 31. I do not consider it credible, on the present material, that such an important matter as the review of a suspension by the second-in-command of the entire Police Service did not give rise to any detailed documentation. There is no statement from the former Deputy Commissioner (Jarrett) who undertook the review. Such a statement was, perhaps, impossible to obtain.
69 Nonetheless, one would have expected that the police system for the documenting of such a process, and the keeping of that documentation, did not turn on whether the person who made the decision was still the occupant of the office. In my view there needs to be a more authoritative explanation for such an odd outcome: that no substantive documents existed in relation to a Deputy Commissioner’s review of a suspension. There was no material in this case from anyone with a close understanding of the suspension-review system as to what procedure was followed at the time, and what protocols existed in relation to the documentation of the process and the decision on review.
70 The Tribunal acknowledges the great efforts that Mr Dakin and the FOI Unit have made to respond to a very large and difficult request. The request has already consumed considerable time, effort and resources. Nonetheless, the Tribunal is not able to conclude that the agency has undertaken an adequate search in relation to items 31 and items 32-34.
71 I am satisfied by the responses given in relation to item 35. As I see it, the terms of the original request have been reasonably responded to, and were (in the ultimate) the subject of adequate searches.
72 The question remains as to what steps should now be taken. I have adopted a form of order which provides that the determination is ‘not affirmed’ in relation to specified items. The order then remits the specified items to the agency for further consideration and a further response to the applicant within 30 days of this determination.
73 As this, so far as I am aware, is the first case in which there has been a finding by the Tribunal that searches were not adequate, I will give the parties liberty to apply within 14 days if they wish to seek any clarification or better formulation of Order 3, as it appears below.
Order
- 1. The determination of the agency in respect of Documents 37A, 37B, 85 and 120 is affirmed.
2. The determination of the agency in respect of Document 120 is varied. An edited version of the document is to be released with all references to names of persons other than the applicant deleted.
3. The determination of the agency in respect of item 31 of the original request and items 32 to 34 of the original request is not affirmed, and the request in those respects is remitted to the agency for further consideration and a further response to the applicant within 30 days of the date of this determination.
4. Liberty to the parties to apply within 14 days in respect of the terms of Order 3.
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