Mizzi v Commissioner of Police (NSW)

[2013] NSWADT 150

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Mizzi v Commissioner of Police, NSW Police Force [2013] NSWADT 150
Hearing dates:	On the papers
Decision date:	02 July 2013
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decision under review is affirmed.
Catchwords:	Access to information - adequacy of search
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009
Cases Cited:	Camilleri v Commissioner of Police [2012] NSWADT 5 Chant v Gwydir Shire Council [2012] NSWADT 20 Cianfranco v Director General of Department of Commerce and Anor (No 2) [2006] NSWADT Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 Smith v Commissioner of Police [2012] NSWADT 85
Category:	Principal judgment
Parties:	Raymond Richard Mizzi (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	R Mizzi (Applicant in person) Crown Solicitor's Office (Respondent) N Case, Office of the Information Commissioner
File Number(s):	123192

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant, Mr Mizzi, has applied to the Tribunal for review of a determination by a delegate of the Commissioner of Police under the Government Information (Public Access) Act 2009 ("the GIPA Act").

Background

1. In July 2011, the Applicant made an access application under the GIPA Act for:

"Police report provided to Toukley Local Police, Main Road Toukley on the 14th December 2010 at approximately 4pm, by Raymond Mizzi. Made in relation to defamation and claims of paedophilia and response to malicious gossip made by Jodie Mizzi, her children and her Mother which include the incidence on Saturday 11 December. Included details of seating and school teacher clearance."

1. He sought the information so that he can better understand why Police took certain actions.

1. On 20 September 2011 the Respondent made a determination to release a redacted version of an event recorded on the Respondent's Computerised Operational Policing System ("COPS") - COPS Event record E 42618225 dated 12 December 2010. Pursuant to section 58(1)(b) of the GIPA Act the Respondent determined that it did not hold other information requested by the Applicant.

1. On 21 October 2011, the Applicant requested that the Office of the Information Commissioner ("OIC") conduct a review of the Respondent's decision. The OIC prepared a report dated 19 June 2012 in which it was recommended:

a.Under section 93 of the GIPA Act, Police make a new decision by way of internal review, within 15 working days from the date of this report.

b.In making a new decision Police consider the guidance provided in this report and re-apply the public interest test to the information.

c.Police consider if they need to consult third parties in relation to the personal information being considered for release to Mr Mizzi, and if so provide such notice to Mr Mizzi of that and consult with third parties as required.

d.Police consider if the information redacted from the event summary is contained in a report to which section 29 of the [Children and Young Persons (Care and Protection) Act 1998] applies.

1. In accordance with the recommendation of the OIC, the Respondent was prepared to conduct an internal review of the matter. It requested that the Applicant complete an "application for an internal review" form by 13 July 2012. The Applicant filed his application with the Tribunal on 13 July 2012.

1. The Applicant subsequently advised the Tribunal and has served documents in the proceedings to the effect that the Respondent that he attended Toukley Police Station on 13 December 2010, not 14 December 2010.

The issues

1. This Respondent made two decisions in relation to the Applicant's access application:

a.A decision that the information requested was not held pursuant to section 58(1)(b) of the GIPA Act; and

b.A decision to release the COPS Event record E 42618225 dated 12 December 2010.

1. The Tribunal has jurisdiction to review the first of those decisions pursuant to section 80(e) of the GIPA Act.

1. It is common ground that the COPS Event record E 42618225 does not fall within the scope of the Applicant's access application.

1. As noted above, the Applicant subsequently advised that he attended Toukley Police Station on 13 December 2010, not 14 December 2010. He therefore seeks information in relation to that attendance ("the Applicant's modified request").

1. The Tribunal's jurisdiction to review decisions of an agency in respect of an access application is pursuant to section 100 of the GIPA Act which provides:

100 Review of decision by ADT

A person who is aggrieved by a reviewable decision of an agency may apply to the ADT for a review of the decision (referred to in this Division as

"ADT review" ).

Note: A reviewable decision does not have to be internally reviewed or reviewed by the Information Commissioner before it can be the subject of ADT review.

1. Section 80 of the GIPA Act sets out the types of decisions that are reviewable by the Tribunal. Section 80 provides:

80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are "reviewable decisions" for the purposes of this Part:

(a) a decision that an application is not a valid access application,

(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,

(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

(d) a decision to provide access or to refuse to provide access to information in response to an access application,

(e) a decision that government information is not held by the agency,

(f) a decision that information applied for is already available to the applicant,

(g) a decision to refuse to confirm or deny that information is held by the agency,

(h) a decision to defer the provision of access to information in response to an access application,

(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),

(j) a decision to impose a processing charge or to require an advance deposit,

(k) a decision to refuse a reduction in a processing charge,

(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,

(m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).

1. The reviewable decision is a decision that the Respondent does not hold information concerning the Applicant's attendance at Toukley Police Station on 14 December 2010.

1. The Tribunal does not have jurisdiction to determine any issue in regard to information sought by the Applicant concerning his attendance at Toukley Police Station on 13 December 2010. This does not fall within the scope of the original access application.

1. The Tribunal is to determine whether the Respondent's determination that it does not hold the information that the Applicant has sought is the correct and preferable decision.

1. The question arises as to whether the Respondent has conducted reasonable searches for the information sought. In that regard, section 53 of the GIPA Act is relevant. Section 53 provides:

53 Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

The material before the Tribunal

1. The Respondent relies on:

(i) open and confidential statements, dated 25 September 2012, prepared by Ms Rosalia Dunlop. Each addressed the searches undertaken in relation to the Applicant's request. Ms Dunlop's evidence is that the Respondent does not hold a report provided by the Applicant to Toukley Local Police on 14 December 2010;

(ii) a Supplementary Statement of Ms Dunlop dated 26 November 2012 in relation to further searches in response to the Applicant's evidence, and the revised date of attendance on 13 December 2012;

(iii) open and confidential statements, dated 27 November 2012, prepared by Senior Constable Sternbeck.

1. The Applicant relies on:

(i) an email dated 15 October 2012 from the Applicant's former solicitor, suggesting that the Applicant attended the Toukley Police station on 13 December 2010;

(ii) an undated card from Senior Constable Sternbeck;

(iii) a chronology of events leading to the Applicant's report to Toukley Local Police; and

(iv)An email dated 18 October 2012 from a witness indicating that the Applicant had informed her that he had attended the Toukley Police station. The witness cannot recall specific dates.

Has the Respondent conducted reasonable searches for the information sought?

1. The material on which the Applicant relies suggests that he attended the Toukley Police station on 13 December 2010 and had a conversation with Senior Constable Sternbeck. He asserted that he gave a report to the Toukley police on that occasion.

1. The Respondent contends that it has conducted reasonable searches in response to the Applicant's original access application. Ms Dunlop's 25 September 2012 statements indicate that:

(i)she conducted a search of COPS in order to search for a record of a report provided by the Applicant to Toukley Police Station on 14 December 2010. No record of such a report was found;

(ii)she identified the staff working at Toukley Police Station on 14 December 2010 and examined their official notebooks. She found no record of the Applicant in the notebooks for 14 December 2010;

(iii)Official notebooks and COPS are the only places where a record of the information the Applicant has requested would be kept.

1. Ms Dunlop's 26 November 2012 statements indicate that:

(i)she had conducted a search of only staff working the day shift on 14 December 2010, because the Applicant had requested in his application information with respect to his attendance on 14 December 2010 at 4.00pm, which coincides with the day shift;

(ii)Senior Constable Sternbeck was not captured in her previous searches because he was working the night shift, specifically from 6pm on 13 December 2010 until 6am. Senior Constable Sternbeck did not work after 6am on 14 December 2010;

(iii)she also searched COPS with respect to the Applicant's attendance on 13 December 2010 and found no record of a report made by the Applicant on 13 December 2010;

(iv)her searches of COPS for 13 and 14 December 2010 capture any time on either of those dates.

1. Senior Constable Sternbeck's 27 November 2012 statements indicate that:

(i)on 13 December 2010 he was working at Toukley Police Station undertaking station duties;

(ii)he recalls speaking with the Applicant at Toukley Police Station, but he does not recall the exact date;

(iii)he looked up the Applicant's details on the COPS system and he saw that another police officer, Senior Constable Petherbridge, had already created an event on the COPS System in relation to the matter, which was under investigation;

(iv)upon identifying that Senior Constable Petherbridge had carriage of the matter, he provided the Applicant with a "referral card", in which he wrote his name on the card, and also the contact details for Senior Constable Petherbridge, so that the Applicant could contact her with regard to the incident;

(v)he did not make a record of the conversation he had with the Applicant on COPS or in his notebook;

he did not recall receiving any documents from the Applicant.

1. The Respondent submits that the evidence from Senior Constable Sternbeck is consistent with the searches otherwise conducted by the Respondent. Senior Constable Sternbeck was not working on 14 December 2010 and had not made a record of his conversation with the Applicant.

1. It is further submitted that the evidence relied upon by the Respondent reveals that the search efforts to locate a record of the information sought by the Applicant has been reasonable in all the circumstances, particularly in conjunction with the evidence of Senior Constable Sternbeck and Ms Dunlop, and as such, the Tribunal should be satisfied that the Respondent does not hold a report provided by the Applicant to Toukley Police Station on 14 December 2010.

1. The Respondent contends that the Applicant's modified request is not reviewable by the Tribunal. Nevertheless, it is also submitted that reasonable searches have occurred in relation the Applicant's attendance at Toukley Police Station on 13 December 2010. As such, it is submitted that the Tribunal should be satisfied that the Respondent does not hold the information sought by Applicant in his access application and also that the Respondent does not hold a report provided by the Applicant to Toukley Police Station on 13 December 2010.

Consideration

1. Section 53 of the GIPA Act sets out the obligations of agencies in regard to searching for information sought by an access application. An agency must conduct such reasonable searches as may be necessary to find any of the information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

1. The issue of what constitutes a sufficient search has been considered in numerous matters under both the GIPA Act and the repealed Freedom of Information Act 1989.

1. In Smith v Commissioner of Police [2012] NSWADT 85 Judicial member Isenberg stated at paragraphs [26] - [28]:

26 As I observed in Camilleri v Commissioner of Police [2012] NSWADT 5, the ultimate question for the Tribunal is whether the agency's conclusion that it does not hold information is sound.

27 In making a decision as to the sufficiency of an agency's search for documents which an applicant claims to exist, there are two questions:

(a) are there reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,

(b) have the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

28 This approach, outlined in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464, has been consistently followed by the Tribunal in, for example, Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 at [52].

1. 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: see Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 at paragraph [30]; Chant v Gwydir Shire Council [2012] NSWADT 20 at [48].

1. It is not enough for the applicant to merely assert non-compliance on the basis of a general distrust of the agency: Cianfranco v Director General of Department of Commerce and Anor (No 2) [2006] NSWADT 195 at [69]. The Tribunal can assess the evidence to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them.

1. In this matter, there are reasonable grounds to believe that the Applicant attended the Toukley Police Station on 13 December 2010. On that day, he spoke with Senior Constable Sternbeck. It is possible that the Applicant provided a report to police on that day.

1. There are no reasonable grounds to believe that the Applicant attended the Toukley Police Station on 14 December 2010 or that he provided a report to police on that day.

1. The necessary searches in relation to 14 December 2010 would therefore be futile. While not required to do so, the Respondent has also undertaken searches in relation to 13 December 2010.

1. I accept the evidence of Senior Constable Sternbeck and Ms Dunlop. On the basis of that evidence, I am satisfied that the search efforts made by the Respondent to locate a record of the information sought by the Applicant has been reasonable in all the circumstances.

1. The Respondent has been unable to locate a report provided by the Applicant on either 13 December 2010 or 14 December 2010.

1. I am satisfied that the Respondent does not hold the information sought by the Applicant in his access application. It follows that the Respondent's decision should be affirmed.

Order

The decision under review is affirmed.

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Decision last updated: 02 July 2013