NZ v Commissioner of Police, NSW Police

[2006] NSWADT 332

CITATION:	NZ v Commissioner of Police, NSW Police [2006] NSWADT 332
DIVISION:	General Division
PARTIES:	APPLICANT NZ RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063279
HEARING DATES:	06/11/06
SUBMISSIONS CLOSED:	11/14/2006
DATE OF DECISION:	11/24/2006
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195
REPRESENTATION:	APPLICANT In person RESPONDENT W Pisani, agent
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

1 On 19 February 2003, NZ lodged an FOI application (signed on 30 January 2003) with the NSW Police for access to the following documents:

“The surname of man known as ‘Adam’ he lives at 47/1 Jensen Place Coogee and a copy of police report at Maroubra relating to the theft at Maroubra Junction Home in 1996 by Patricia. See my letter enclosed.”
2 The attached letter dated 20 January 2003 (addressed to Mr Dakin) stated:
“I am requesting FOI information as per the related theft at Maroubra Junction Nursing Home periods from 1996 – 1997. It involved Patricia ... and a female patient, as there was a theft the patient was in her care.

The time-frames January 1996 to September 1997.”

3 In response to this application, a delegate of the Commissioner, Mr M Dakin, made a determination dated 26 March 2003, releasing in full 9 pages of documents provided by the Eastern Beaches Local Area Command, but otherwise finding “no record containing the surname of the person Adam” and “no record concerning the 1996 incident”. NZ wrote to Mr Dakin on 6 May 2003 asking him “[t]o check time-frames January 1996 to September 1997”.

4 Since then, NZ has been involved in an ongoing exchange of correspondence with the Police over this and other matters, including as to alleged breaches of her privacy by the Police. As a result of significant confusion between the parties, partly, it appears, as a result of the volume of NZ’s correspondence, while NZ believed she had applied for an internal review of the determination dated 26 March 2003 and subsequently repeatedly asked for a response to her request, the Police considered she had never made a formal request for an internal review. Eventually, following a planning meeting with the parties conducted by the Tribunal, NZ lodged a new application for internal review, namely her letter dated 7 January 2006. In this letter, NZ referred to “Other FOI required for my internal review” and listed 35 matters/documents in respect of which she seeks access.

5 On 28 June 2006, the Acting Deputy Director of the Compliance Law Division of the Legal Services Branch of the NSW Police, J Philippi, a delegate of the Commissioner, issued an internal review determination. The delegate noted that NZ’s application for internal review made various submissions and requests in relation to 35 matters/documents, and said:

“the Applicant’s internal review appears to broaden, to a considerable extent, the scope of the Applicant’s application, and we note that we are not required under the Act to deal with requests for documents falling outside the ambit of an original application ...

Accordingly, the matters raised and the documents requested in the Internal Review application do not, in fact, require our attention given that the Applicant failed to identify the same in her original request.”

6 However, the delegate went on to say that since this matter has been ongoing for more than three years, although the internal review would only deal with the scope of documents identified in NZ’s original application, a search for the supplementary documents requested had been carried out and the Police would be in a position to deal expediently with a fresh application for these documents lodged by NZ. (NZ has since lodged a further FOI application identifying the 35 matters/documents as the subject of her application.)

7 The delegate stated that on both NZ’s original and internal review applications, “thorough and exhaustive searches have been conducted by this agency to locate any documents which relate to and fall within the ambit of the above requests of the Applicant”, including at the Eastern Beaches Local Area Command:

“These enquiries have involved manual searches of documents held by that Command, and current electronic records on the Computerised Operational Policing System (‘COPS’). These searches have failed to result in the discovery of any documentation pertaining to the Application.

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

I note that this determination appears to deviate from that of Mr Dakin, however I note the documents released by him in respect of this matter merely disclosed that this agency was unable to locate documents falling within the scope of the request.”

8 On 24 July 2006, NZ lodged an application for review of this decision with the Tribunal. In her application, NZ submitted that she had been denied her legal rights because none of the 35 documents listed had been provided to her. She contended that “all the information is on the system”.

9 At the hearing, which was conducted by telephone because NZ suffers from agoraphobia, NZ repeated that she had applied for an internal review on many previous occasions, although she acknowledged there might be some confusion because of the volume of correspondence over more than three years. She disputed Mr Pisani’s submission that the jurisdiction of the Tribunal was limited to the scope of her original FOI application. NZ also said she is certain the Police did report on the theft at Maroubra Junction and that a report must therefore exist.

10 Mr Pisani said the Commissioner relies on the internal review determination, and submitted that NZ’s request for 35 documents in her application for internal review was outside the ambit of NZ’s original FOI application and, also, outside the jurisdiction of the Tribunal in terms of its review of the reviewable decision.

11 The Tribunal directed the parties to provide the Tribunal with a copy of both NZ’s original FOI application and her application for internal review. NZ asked that on receipt of those documents, the Tribunal make a decision, with the benefit of the above oral submissions but otherwise ‘on the papers’. Mr Pisani agreed to this. The parties duly complied with the direction and provided the required documents.

Discussion

12 Section 16(1) of the Freedom of Information Act 1989 (‘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. Section 24(1) provides for the determination of FOI applications by the agency, and s 28(1) for notices of determination to be given to the applicant. Section 47 states that a person who is aggrieved by a determination is entitled to an internal review of the determination on lodging a written application for review addressed to the principal officer of the agency, lodged at an office of the agency within 28 days after notice of the determination was given. Relevantly, the Tribunal’s jurisdiction is founded in s 53(1) which states that a person who is aggrieved by a determination made by an agency may apply to the Tribunal for a review of the determination.

13 Section 63 of the Administrative Decisions Tribunal Act 1997 requires that in determining an application for review of a reviewable decision, the Tribunal “is to decide what the correct and preferable decision is having regard to the material before it”, and in doing so, “may exercise all the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision”.

14 In my view, it is quite clear from these provisions that in the present matter the Tribunal’s power is limited to reviewing the original determination made on 26 March 2003. This means that in the present matter, the Tribunal is not empowered to review the part of the internal review decision that determined that the additional 35 documents identified by NZ in her internal review application received on 7 January 2006 were outside the scope of the internal review. However, I note that NZ has now made a fresh FOI application for access to these documents and, of course, it follows that should she be aggrieved by the determination of that application and by the outcome of a consequent internal review, she may apply to the Tribunal for a review of that decision.

15 Turning to the determination dated 26 March 2003, I note that NZ’s original FOI application lodged on 19 February 2003 sought access to specified documents in relation to the period January 1996 to September 1997. In his letter dated 26 March 2003, the decision-maker, Mr Dakin, said that in response to NZ’s application:

“a search was carried out on the New South Wales Police Computerised Operational Policing System (COPS) and also inquiries were directed to Eastern Beaches Local Area Command. I have subsequently been provided with documents. I have examined the documents and determined, this date, as follows:
1) Release in full documents provided by Eastern Beaches Local Area Command (9 pages);

2) There is no record containing the surname of the person Adam

3) There is no record concerning the 1996 incident.”

16 It appears from the internal review decision dated 28 June 2006 that the nine documents released by Mr Dakin relate to the search itself and the lack of success in locating any documents falling within the scope of the FOI application.

17 I am not persuaded by NZ’s submissions that there is any evidence to suggest that the Police have not conducted adequate searches. In Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195, at par 69, the President, O’Connor DCJ, emphasised that mere assertion of non-compliance is not enough. There must be “some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists”. I am also not satisfied that there is any evidence to suggest that the Police have otherwise not responded to NZ’s application as required by the FOI Act. Thus, the decision under review must be affirmed.

Decision

18 The decision under review is affirmed.