Patsalis v NSW Police (No 2)

[2004] NSWADT 185

CITATION:	Patsalis v Commissioner of Police, NSW Police (No 2) [2004] NSWADT 185
DIVISION:	General Division
PARTIES:	APPLICANT Michael Patsalis RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	033041
HEARING DATES:	16/12/2003, 09/02/2004, 24/06/2004
SUBMISSIONS CLOSED:	06/24/2004
DATE OF DECISION:	08/27/2004
BEFORE:	Britton A - Judicial Member
APPLICATION:	access to documents - personal affairs - access to documents - substantial and unreasonable diversion of agency's resources - Freedom of Information Act - access to documents - personal affairs - Freedom of Information Act - access to documents - substantial and unreasonable diversion of agency's resources
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Beesley v Commissioner of Police [2000] NSWADT 52 Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213 Patsalis v Commissioner of Police, New South Wales Police Service (GD) [2004] NSWADTAP 20 Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779
REPRESENTATION:	APPLICANT In person RESPONDENT D Patterson (16 December 2003, 9 February 2004) P McLaughlin (24 June 2004)
ORDERS:	1. The decision of the Repondent in respect of Item 3, Item 4 (as it relates to Mr Patsalis’ phone records), Item 5, Item 6 (as it relates to the two boxes and the photographs), Item 7 and Item 8 is remitted.; 2. The decision of the Repondent in respect of Item 4 (as it relates to Exhibit AX) and Item 6 (except as it relates to the two boxes and the photographs) is affirmed.

1 Michael Patsalis is currently serving a custodial sentence for the murder of Klaus Ludwig. He has made a request to the Commissioner of Police under the Freedom of Information Act 1989 (FOI Act) for a number of documents. Mr Patsalis explains that he needed these documents for an application he intended to make to the Supreme Court in relation to his conviction.

Background

2 Mr Patsalis’ FOI application was made on 20 August 2002. In a schedule to that application he set out ten categories of documents, referred to in these reasons as “Items”. The documents requested relate to the police investigation and Mr Patsalis’ subsequent trial and conviction for the murder of Mr Ludwig.

3 In a notice of determination addressed to Mr Patsalis, dated 11 February 2002 (the original decision), he was advised that a decision had been made to grant him access to the brief of evidence tendered in his trial for the murder of Mr Ludwig (the police brief), together with eight other documents. The balance of requested documents however were not released on the grounds that they were either exempt, could not be located, were not in the Respondent’s possession or because providing the document/s would involve a substantial and unreasonable diversion of resources.

4 At the request of Mr Patsalis an internal review was conducted. While not expressly stated, the notice of review dated 11 February 2003, indicates that the original decision had been affirmed.

5 Mr Patsalis’ representative requested a further review which was conducted by Michael Holmes, the Commissioner’s delegate who had conducted the internal review. In a notice of decision dated 10 March 2003, Mr Holmes found that the notice of internal review incorrectly cited s 28(1)(b) of the FOI Act (no documents held) as the ground for refusing documents under Item 5 of Mr Patsalis’ request. He advised that the documents had been refused under s 25(5) (unreasonable diversion of resources).

6 Mr Patsalis subsequently applied under the Administrative Decisions Tribunal Act 1997 (NSW) (the Tribunal Act) for an external review of that decision. In a decision dated 10 September 2003, Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213, President K O'Connor DCJ affirmed the Commissioner’s decision in respect of Items 1 and 2 and noted that the application in respect of Items 9 and 10 had been withdrawn. An appeal against that decision was dismissed (Patsalis v Commissioner of Police, New South Wales Police Service (GD) [2004] NSWADTAP 20).

7 With the consent of the parties, Acting President Hennessey reconstituted the Tribunal and I was appointed to determine the application in respect of the remaining documents i.e. Items 3, 4, 5, 6, 7 and 8 (Tribunal Act s 79(1)). These reasons concern the Respondent’s decision in respect of those documents.

Conduct of Proceedings

8 On 4 September 2003, President O'Connor set down the balance of Mr Patsalis’ application for hearing and directed the parties to file and serve all material on which they sought to rely. The Commissioner put on no material. Detailed submissions dated 20 October 2003 were received from Mr Patsalis.

9 At a hearing on 16 December 2003, it emerged that the scope of documents released to Mr Patsalis was in issue. Mr Patsalis asserted that he had not been granted access to the documents identified in Items 3-8. Ms Patterson, for the Commissioner, claimed that Item 3 (the logbook), Item 4 (the “Ludwig letter” and Mr Patsalis’ phone records) and Item 6 (documents produced in court relating to the murder of Mr Ludwig) formed part of the police brief which had been released to Mr Patsalis.

10 Mr Patsalis disputed this and pointed to the notice of Internal Review which stated that the logbook (Item 3) could not be found. He also disputed that the mobile phone records and the Ludwig letter were in the police brief. It was not possible to clarify the issue as neither party had a copy of the brief at the hearing (apparently Mr Patsalis’ solicitor had exercised a lien over his copy) and nor had one been filed with the Tribunal.

11 The matter was set down for a further hearing and the Respondent was directed to, first, file and serve material in support of the claim that the documents covered by Items 3, 4 and 6 had been released and, second, to put on submissions and evidence about the remaining documents.

12 These directions were not complied with and at a further hearing on 9 February 2004, the Respondent was again directed to put on submissions and evidence. Ms Patterson undertook to make further inquiries in respect of Item 4 and 6.

13 On two subsequent occasions these directions were repeated and not complied with. The Tribunal has not been advised if further inquires in respect of Items 4 and 6 were made. At the final day of hearing, Mr McLaughlin appeared for the Respondent and explained that he did not have carriage of the file and that the file could not be located because of a recent office move.

Relevant law

14 The issue for determination is whether the Commissioner, in refusing Mr Patsalis access to documents, made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law: s 63(1) of the Tribunal Act.

15 The objects of the FOI Act make it clear that the rights of the public to obtain access to government records are to be extended as far as is reasonably possible (s 5). Under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act. This right is exercised by making an application in accordance with s 17 which requires the applicant, among other things, to provide “such information as is reasonably necessary to enable the document to be identified”. The agency is required to assist this process of identification (s 19(1)) and can transfer the application to another agency that holds the document (s 20).

16 The agency must determine the application for access (s 24). It may do so only on grounds specified in the FOI Act. Section 61 places upon the agency the onus of proving that the determination was justified.

17 Section 25(1) provides that an agency may refuse access to a document:

(a) if it is an exempt document, or

(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions, or

18 An exempt document is defined by s 6 to include a document referred to in Schedule 1 of the FOI Act. In this matter, in respect to Item 5, the Commissioner’s delegate relied on the personal affairs exemption (clause 6 of Schedule 1) which 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.

19 Section 25(4) provides that an agency shall not refuse access to an exempt document if it is practicable to give access to a copy of that document from which the exempt matter has been deleted and if it appears that the applicant would wish to be given access to the amended copy.

20 Section 25(1)(a1) provides that an agency may also refuse access to a document if:

… the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions,

21 That provision must be read together with s 25(5) which provides:

Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.

22 In the absence of any written submissions from the Respondent I have relied on the notice of original decision, the internal and subsequent review and Mr Patsalis’ detailed written submissions. In addition, with the consent of the parties, I have had regard to Detective Inspector Jacobs’ evidence, given in Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213.

Item 3: the Log Book

“The Log Book in which were recorded details of all entries into and exits from the crime scene at Old Mona Vale Road. Terrey Hills in relation to the investigation into the murder of Mr K P Ludwig.”

23 The Respondent asserted that despite a “diligent search”, the logbook, which it now accepts was produced at the trial, could not be located.

24 The only evidence before me of any search was given by Detective Inspector Jacobs, the officer in charge of the investigation into the murder of Mr Ludwig. As conceded for the Respondent, the focus of his evidence was the search undertaken for the documents described under Items 1 and 2, in particular the “print out”. His evidence was to the effect that he copied and forwarded everything to the FOI Unit that he still held in relation to the trial. He located two volumes of material, the “brief of evidence”, and forwarded that, together with “other material” to the FOI Unit. (Exhibit R1 at par. [3] tendered in Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213).

25 It is not apparent whether Detective Inspector Jacob was requested to, or did, search all of the Respondent’s records for the logbooks. It may be that his search was confined to a particular section. The scope of his search may have been confined to Items 1 and 2. It may be that the Respondent’s FOI unit (the FOI Unit) commissioned further inquiries apart from those made by Detective Inspector Jacob. From the scant information before me I have simply no way of knowing.

26 In Beesley v Commissioner of Police [2000] NSWADT 52, in Re Smedley and Department of Business, the Arts, Sports and Tourism (1996) 41 ALD 779 and Re Hancock and Department of Resources and Energy (1986) 10 ALN N65 (among other decisions), it has been held that the Tribunal must be satisfied that a reasonable search for documents, which are unable to be located by the agency or authority concerned, has been undertaken before it can decide that a document is not within the agency’s possession and that, as a consequence, the decision not to release it to the applicant is the “correct and preferable” decision. If the evidence shows that an inadequate search has been undertaken or there is no evidence of a reasonable search, the agency may be taken to have refused access to the document. Whether such a deemed refusal will be found to be proper will depend on all the circumstances, but even so, an inadequate search will naturally reflect badly on the agency and its attitude to its obligations under the FOI Act.

27 There is little evidence of what has been actually been done by the Respondent in the course of his “diligent search” for the logbooks. The repeated failures by the Respondent to comply with the Tribunal’s directions suggest that rather than the search for documents being “diligent” it was both dilatory and superficial. This impression may be incorrect but, absent evidence of the archiving system used by the Respondent and the efforts made by his delegate(s) to locate the materials within Police archives, that is what we are left with. I am not satisfied at this stage that the Respondent has undertaken an adequate or reasonable search for the materials.

28 Accordingly, the decision in respect of Item 3 will be remitted to the Respondent.

Item 4: the Ludwig letter and Mr Patsalis’ mobile phone records

“The facsimile exhibits which are referred to in Detective Olens' Statement in particular the facsimiles from Gordon Police Station to Detective Jubelin including a) Mr Ludwig letter (which later became Exhibit AX in the trial) b) Patsalis mobile telephone records "Document" (produced and provided to Detectives at Gordon Police Station)”

29 Phone records In the original decision it was claimed that these documents were attached to Detective Olen’s statement and access had been granted to Mr Patsalis through the police brief. As Ms Paterson conceded at hearing, there is nothing attached to Detective Olen’s statement which could remotely be said to constitute “the Patsalis mobile telephone records document”. A cursory examination of Detective Olen’s statement shows that there are no phone records attached, however described.

30 The matter is remitted to the Respondent for a proper search to be undertaken.

31 ‘Ludwig letter’ Less straight forward is the Respondent’s decision in relation to the remaining documents namely “the facsimile exhibits which are referred to in Detective Olen’s statement in particular the facsimiles from Gordon Police Station to Detective Jubelin including a) Mr Ludwig letter (which later became Exhibit AX in the trial)”.

32 The Respondent’s delegates proceeded on the basis that Mr Patsalis had requested the “Ludwig letter” (Exhibit AX) to which access had been granted (see notice of original decision and internal review). It emerged at hearing that this was not the document Mr Patsalis wanted. Rather, as he explained, it was “Mr Ludwig’s letter that was also facsimiled off to detectives at a particular police station…I would seek to have an original or photocopy of the fax” (see Transcript, 9 February 2004, page 26, at line 5).

33 In a statement dated 13 April 1996, tendered at trial, Detective Olen stated that on 12 April 1996 he was handed a handwritten letter marked “K. Peter Ludwig” at Gordon police station. It is not clear whether that letter was the same one he claims he was handed some time later (see Detective Olen’s statement at par [8]). But in any event he makes no reference to having faxed a letter to Detective Jubelin or anyone else for that matter. The sole reference to a facsimile in his statement makes no express mention of the Ludwig letter: “I then facsimiled a document to him [Detective Jubelin] in relation to mobile phone number ...”

34 Section 17(d) requires that an application for access to an agency’s documents include “such information as is reasonably necessary to enable the document to be identified”. It is not open to an agency confronted by an application that on its face is unclear to merely throw up its hands and deny possession of the relevant documents. The agency is required to assist this process of identification (s 19(1)). While s 19(1) does not apply to this request, as the Respondent did not refuse to accept Mr Patsalis’s application, it demonstrates that the Parliament’s intention in relation to FOI requests is that agencies facilitate the process rather than obstructing it.

35 This however is not a case of an agency when faced with a request for a poorly described document claims it is not in its possession. While Exhibit AX might not be the document Mr Patsalis meant to refer to in his request, the Respondent, in my opinion, cannot be criticised for proceeding on the basis that it was. A fair reading of the description provided by Mr Pastalis supports the interpretation adopted by the Respondent’s delegates, particularly as there is no reference in Detective Olen’s statement to the ‘Ludwig letter’ being faxed to Detective Jubelin. While an agency is required to take reasonable steps to assist an applicant to identify the requested document, this obligation does not extend to second-guessing that the applicant is in fact requesting a different document to that described.

36 The decision in respect of the Ludwig letter is affirmed. It is open to Mr Patsalis to make a fresh request for the document he has described in these proceedings.

Item 5: Notebooks and Duty Books

“The Note Books and Duty Books of all police officers involved in the investigation into the murder of Mr K P Ludwig.”

37 It was asserted for the Respondent that approximately 45 officers had been involved in the investigation and, if the notebooks were in existence, they would be archived in numerous locations throughout the agency. Mr Patsalis was requested to narrow the scope of Item 5 but refused (s 25(5) of the FOI Act). In these circumstances the Respondent claimed that the request for documents amounted to an unreasonable diversion of resources (s 25(1)(a1).

38 It is not enough for the Respondent to merely assert that to locate the documents would amount to an unreasonable diversion of resources. Once again, the Respondent has failed to provide any satisfactory evidence for this assertion. As a starting point, the Respondent should, in my opinion, provide a description of the manner in which documents of this type are recorded or catalogued and archived and the resources likely to be involved in locating and collating them. Without such information it is simply not possible to determine whether the work involved in granting access would involve an unreasonable and substantial diversion of resources. Any FOI request entails a diversion of resources from other activities but all NSW government agencies and authorities are resourced to some extent to meet FOI requests. FOI activities are an ordinary part of executive government in the current day. The issue for determination is whether a particular request would unreasonably and substantially tie up an agency’s resources and no answer has been provided by the Respondent. This in turn raises once again the question whether the Respondent (or his delegates) has actively complied with his obligations under the FOI Act in relation to this application.

39 This matter will be remitted to the Respondent.

Item 6: documents produced in court.

“All the documents, paperwork, notes etc associated with the police investigation into the murder of Mr K P Ludwig, which were produced to Court, coming from the archives at Strawberry Hills.”

40 The original decision states that “given the complexity of the proceedings it is therefore impossible …to establish which documents were tendered [in the Supreme Court], nor is Detective Jacob able to assist”. However a number of documents including the police brief were released. The brief and COPS event E1714015 were released with deletions (s 25(4)). Mr Patsalis claims that two boxes of documents produced at trial were not included in the material released to him.

41 Deleted Material The material deleted from the brief consisted of photographs of Mr Ludwig that were attached to the statement of Detective Gibb. In addition a number of references to Mr Ludwig and third parties were deleted from the COPS event E1714015. In determining not to release these documents the Commissioner’s delegate relied on the personal affairs exemption (clause 6).

42 Photographs Section 31(1) makes clear that clause 6 extends to the personal affairs of a deceased person. It is apparent that the photographs relate to the personal affairs of Mr Ludwig and accordingly I find they are exempt documents.

43 COPS event E1714015 As best I can make out that the deleted information falls within the scope of clause 6.

44 Consultation An administrator who has determined that a document (in whole or part) contains matter that falls within the scope of clause 6 must take “such steps as are reasonably practicable” to obtain the views of the person concerned, or if deceased, their closest relative: s 31(2). The requirement to consult is only triggered where the administrator decides to grant access to the documents.

45 In this matter, the Respondent’s delegate decided not to consult because “in light of the circumstances where the applicant was convicted I have formed the independent view that expectations for this agency to consult with other people in accordance with s 32 [sic] of the Act would be unreasonable.”

46 From the limited material before me, the deleted photos would appear to have been tendered at trial through Detective Gibb’s statement and have therefore been placed on the public record. It is unclear whether (if in fact this is correct) the Respondent’s delegate took this into account. In the absence of further information, I am unable to determine whether the decision not to release the photos was correct and accordingly this matter will be remitted to the Respondent.

47 I am satisfied that the decision not to consult with the persons whose personal affairs were recorded in COPS event E1714015 was appropriate in the circumstances. The decision of the Respondent in respect of this document is affirmed.

48 Boxes of documents As noted, Mr Patsalis disputed the Respondent’s claim that he was granted access to all documents under Item 6 and claimed that “two voluminous boxes produced in court” were not released. Mr Patsalis provided the Tribunal and the Respondent with an extract from the transcript of the trial which makes reference to the boxes (Transcript R v Michael Patsalis 700021/97; R v Alexios Spathis 70700/97 14/7/1999 p 394).

49 The difficulty with this part of the request is that while two boxes of material are referred to in the transcript, it is not clear what was contained in the boxes nor what happened to them. It appears from the transcript that Mr Patsalis’ counsel examined the contents of the boxes but, as there was no other reference to them provided by Mr Patsalis from the transcript it seems reasonable to conclude that his counsel took the view that they contained no relevant material.

50 Whether the boxes still exist with their contents intact is another question. Ms Patterson stated that to the best of her knowledge no search had been undertaken specifically for the boxes and undertook to make some enquiries. The Tribunal has not been advised whether those enquires took place. This matter will be remitted to the Respondent for inquiries to be made.

Item 7- telephone records

All telephone records (including name of the receiving destination, time of call and duration of call) for Friday 12 April 1996, from the following Police Stations, associated in the investigation into the murder of Mr K P Ludwig, whether from the main switch, foyer or from any section such as the Detectives Offices: Chatswood Major Crime Squad Unit, Chatswood/North, Bankstown, Gordon, Mona Vale, French’s Forest, Pittwater and any other police station associated in the said murder investigation

51 The Respondent’s delegate asserted that “no documents for the telephone records … was created during the investigation”.

52 The Respondent’s delegate has apparently understood Item 7 to be a request for a single document created during the course of the investigation containing the information set out above. While it is understandable that he may hold that view, in my view Item 7 reads as a request for “all phone records for the police stations nominated by Mr Patsalis for 12 April 1996”. In reaching that conclusion I note that there is no express reference in the description given by Mr Patsalis to a document “created during the investigation”.

53 It may be that Mr Patsalis was in fact referring to the type of document identified by the Respondent and that he had advised the Commissioner’s delegate of this. If this is the case and such document was not created this would be the end of the matter. However there is nothing before me to indicate that this was the case.

54 This decision is remitted to the Respondent for inquiries to be made on the basis of the description set out above. It is recommended that the Respondent confer with Mr Patsalis to assist him to identify the document sought.

Item 8 –Police Mobile phone records

“All mobile telephone records for the various police officers associated in the investigation into the murder of Mr K P Ludwig for Friday 12 April 1996.”

55 In the notice of original decision it was asserted that the mobile telephones used by the officers involved in the investigation had been purchased privately and accordingly were exempt documents under clause 6 of Schedule 1 of the FOI Act. At the hearing, Ms Patterson qualified this and conceded that some may have been issued by the Police Service. She stated that no inquiries had been made but that if the telephones were bought privately by the officers that the records would be exempt as relating to the personal affairs of the police and, in any case, that the records were not held by the Police Service.

56 In relation to records held for telephones issued by the Police Service, she claimed that a search would entail an unreasonable diversion of resources. She, however, adduced no evidence to support this assertion. I refer to my remarks above on the necessity for agencies to provide satisfactory proof of such assertions. This decision will also be remitted to the Respondent.

Decision

57 For the reasons as stated I make the following orders:

1. The decision of the Repondent in respect of Item no. 3, Item no. 4 (in so far as it relates to Mr Patsalis’ phone records), Item no.5, Item 6 (in so far as it relates to the two boxes and the photographs), Item no.7 and Item no. 8 is remitted.

2. The decision of the Repondent in respect of Item no. 4 (in so far as it relates to Exhibit AX ) and Item 6 (except as it relates to the two boxes and the photographs) is affirmed.