Trau v Minister for Police

[2002] NSWADT 180

CITATION:	Trau v Minister for Police [2002] NSWADT 180
DIVISION:	General Division
PARTIES:	APPLICANT Jerzy Trau RESPONDENT Minister for Police
FILE NUMBER:	023052
HEARING DATES:	16/05/02
SUBMISSIONS CLOSED:	05/16/2002
DATE OF DECISION:	09/25/2002
BEFORE:	Robinson MA - Judicial Member
APPLICATION:	access to documents - adequacy of search - Freedom of Information Act - access to documents - adequacy of search
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 B v Commissioner of Police, New South Wales Police Service [2000] NSWADT 168 Beesley v Commissioner of Police, New South Wales Police Service (GD) [2001] NSWADTAP 8 Murre (No 2) v Commissioner of Police, New South Wales Police Service [2001] NSWADT 175 Trau v Commissioner of Police, New South Wales Police Service [2001] NSWADT 215
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks, solicitor
ORDERS:	The applicant's application for review is dismissed. The decision of the respondent is affirmed.

1 The applicant made an application for review of a reviewable decision made under the Freedom of Information Act 1989 (“FOI Act”) giving the applicant copies of certain documents relating to him. The respondent says that there are no more relevant documents held. The applicant contends that there must be some further documents relating to him in the respondent’s files and challenges the adequacy of the respondent’s search for the documents. As a result, the hearing before the Tribunal was, in effect, an inquiry into the adequacy of the respondent’s search.

Adequacy of Search

2 The proper basis for and approach of the Tribunal in such an inquiry is set out in Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 esp at [8] & [13]. In short, the Tribunal must consider whether, on the evidence before it, the correct or preferable exercise of the power in s 24 of the FOI Act (as to how FOI applications are determined by an agency) was to refuse access to a document on the ground the document was not in fact “held” by the agency. Section 24 applies to the respondent Minister by operation of s 38 of the FOI Act.

3 The approach adopted by the Tribunal in Beesley’s case was adopted in a number of other cases, eg: in B -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 168 (affirmed on appeal, Beesley -v- Commissioner of Police, New South Wales Police Service (GD) [2001] NSWADTAP 8); Murre (No. 2)-v-Commissioner of Police, New South Wales Police Service [2001] NSWADT 175; and Trau -v- Commisioner of Police, New South Wales Police Service [2001] NSWADT 215.

The FOI Application

4 On about 17 January 2002 the applicant made a written application to the respondent Minister pursuant to section 35 of the FOI Act. Under that provision, a person has a legally enforceable right to be given access to a Minister's documents in accordance with that Act. In that application, the applicant sought access to:

"… all documents from your office referring to police investigation of perjury, fraud and conspiracy to pervert the course of justice related to my dismissal from Sydney University."

5 On 1 March 2002, the applicant filed his application for a review of a deemed refusal of his FOI application. As it happened, the FOI application was, in any event, determined by an officer of the Minister, Mr Sam Moreton, by way of a letter dated 22 March 2002. At a planning meeting that was conducted before the Tribunal on 3 April 2002, the parties agreed that the Tribunal had jurisdiction to deal with the matter, no internal review was required, and that the said letter properly constituted the reviewable decision in the present case.

6 In the decision under review, Mr Moreton identified a number of documents as falling within the scope of the applicant's application and determined that all such documents should be released in full to the applicant. They were accordingly released to him. Upon viewing these documents, the applicant was of the view that there were three documents missing that should have been found by the respondent in the various searches conducted.

7 At the hearing, the applicant represented himself and a solicitor represented the respondent. The respondent read an affidavit sworn 8 May 2002 by Mr Sam Moreton, the Freedom of Information Officer for the respondent, and an affidavit sworn 2 and May 2002 by Ms Pauline Ross, the Freedom of Information Officer for the Ministry for Police. The applicant required Mr Moreton to be available for cross-examination and he gave oral evidence at the hearing.

8 The applicant relied on his own affidavit sworn on 17 April 2002 and he tendered one document, a letter from him to an officer of the Director of Public Prosecutions dated 10 May 2002 (exhibit A) upon which is written a detailed description of the three “missing” documents sought. The first document or class of documents sought is described in exhibit A as "evidence of funding of the Marine Studies Centre at Sydney University in SU publications". The second document sought is described in exhibit A as "false report of 23 June 1992 by Det Sgt Gillett". The third document sought (listed as document numbered 4 in exhibit A) is described as "Exhibit X of 4 October 1990 in my defamation case against Knight and Simons".

9 The underlying facts, which are not in contest between the parties, are that the applicant has been making representations to the New South Wales Police Service and various other State officers and instrumentalities for over 12 years regarding incidents that occurred in or in relation to what the applicant contends was his unfair dismissal or breach of contract with an Australian University in about 1978. The applicant was engaged as a lecturer in chemical oceanography for a number of years. His engagement by the University then ceased. A number of Court and Tribunal proceedings followed, including a defamation action, and the applicant believes that the Police Service should more fully investigate various allegations he made from time to time arising from the alleged termination of his employment and from those other proceedings.

10 I will not set out the detailed evidence of Mr Moreton and Ms Ross in this determination. The evidence establishes that extensive searches were undertaken within the respondent's office and within the Office of the Ministry for Police, a separate Government agency that advises the respondent's office and retains files on behalf of that office. Extensive cross-examination of Mr Moreton by the applicant did not successfully challenge his affidavit evidence. Some of the applicant's fears, suspicions and concerns were put by the applicant to Mr Moreton in that cross-examination. However, his evidence was unshaken to the effect that the search for the documents was thorough and, in particular, the three documents identified by the applicant as being of particular interest to him, were not in possession of the respondent and were accordingly not held by the respondent. The applicant did not put to or suggest to Mr Moreton any avenue or form of inquiry that he might take that would or should undercover or have uncovered the said documents.

11 Indeed, when cross-examined specifically about the first and the third document sought by the applicant, Mr Moreton gave positive evidence that in light of the extensive searches undertaken, he could say "without equivocation" the said documents were not held by the respondent or the Ministry for Police. As to the second document sought by the applicant, that document was handed to him by the applicant at the first planning meeting at the Tribunal in these proceedings and he was then asked by the applicant would he please attempt to find the original or any copy of that document held by the respondent. Apart from the photocopy that was handed over at a planning meeting, no such documents could be found.

12 In the course of oral submissions, the applicant informed the Tribunal that he already possessed a copy of the first document sought and he did not bring a copy of it to the hearing. As to the second document, after hearing the evidence of Mr Moreton the applicant conceded that the respondent did not have the document. As to the third document, the applicant tendered a copy of it to the Tribunal as an attachment to his affidavit of 17 April 2002 (at page 10 of the Tribunal’s copy of that affidavit).

13 The respondent relied on written submissions filed 10 May 2002 which was of assistance in making this determination.

14 I was impressed with the oral evidence of Mr Moreton and I accept it as true and correct and I also accept the unchallenged evidence of Ms Ross. Accordingly, I am satisfied that the respondent has undertaken adequate or sufficient searches in order to seek to locate the remaining disputed documents. I find that the disputed documents are not held by the respondent. I am satisfied that there is no need for the respondent to undertake any further searches for the said disputed documents.

15 I determine the applicant’s application for review is dismissed. The decision of the respondent is affirmed.