Freedom of Information Search Adequacy Upheld by Tribunal

The Tribunal dismissed an appeal regarding the adequacy of a search conducted by the Commissioner in response to a Freedom of Information request. The Tribunal found the search to be adequate and comprehensive.

[NAME]: [NAME] v Commissioner of Police, New South Wales Police (GD) [2007] NSWADTAP 24

APPELLANT PARTIES: [NAME] RESPONDENT Commissioner of Police, New South Wales Police

FILE NUMBER: 069079

HEARING DATES: 21 March 2007

SUBMISSIONS CLOSED: 21 March 2007

DATE OF DECISION: 3 May 2007

BEFORE: O'Connor K - DCJ (President); [NAME] Member; Bolt M - Non Judicial Member

CATCHWORDS: Freedom of Information - sufficiency of search

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 063002

DATE OF DECISION UNDER APPEAL: 11/27/2006

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

[NAME] v Commissioner of Police [2006] NSWADT 333 CASES CITED: [NAME] v Commissioner of Police [2003] NSWADT 245 [NAME] v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195

APPELLANT In person REPRESENTATION: RESPONDENT [NAME], agent

ORDERS: Appeal dismissed

REASONS FOR

DECISION 1 This appeal has as its background an application for access to documents made on 17 October 2005 by the appellant, [NAME], to the Commissioner of Police. He sought access to documents relating to an incident that had occurred on 9 April 1996, another incident in 2000 and, more generally, documents relating to any investigation of him and anything else relating to him. The terms of the request are set out in the decision under appeal: see [NAME] v Commissioner of Police [2006] NSWADT 333. 2 By determination dated 17 November 2005 the Commissioner gave [NAME] access to some of the documents held by the Commissioner covered by the terms of the request. He did not provide copies of other documents covered by the request because they had already been provided in response to previous similar requests. One of the earlier similar requests is the subject of a determination made by the Tribunal in 2003: see [NAME] v Commissioner of Police [2003] NSWADT 245. 3 On 24 November 2005 [NAME] applied for internal review of the latest determination. The Commissioner did not respond. As he was entitled to do, he then applied to the Tribunal for review. Following a hearing in August, the Tribunal issued its decision on 27 November 2006. 4 [NAME] objected that not all documents held by the agency and covered by his request had been provided. In line with the jurisprudence in the Tribunal relating to sufficiency of search (see, for example, [NAME] v Director General, Department of Commerce and anor (No 2) [2006] NSWADT 195) the Tribunal heard evidence on this matter. It was satisfied that the Commissioner had responded in full to the request. It affirmed the decision. (Strictly speaking, the Tribunal's conclusion should have been expressed as that it lacked jurisdiction, as a full disclosure of all relevant documents does not give rise to a decision that attracts the review jurisdiction of the Tribunal: see Freedom of Information Act 1989, s 25 for the list of reviewable decisions.) 5 [NAME] is a litigant in person. On appeal he has basically repeated his view that the Commissioner's response was inadequate as it did not identify all relevant documents. An appeal may be made as of right on a question of law, and with the leave of the [NAME] the appeal may be extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. In this instance [NAME] raised no question of law. 6 [NAME]'s notice of appeal is difficult to understand. Consistent with the Tribunal's account of his concerns (see especially para [7] of its reasons), at the [NAME]'s hearing on 21 March 2007, the appellant said that:

1. He was visited by Sutherland Police on 5 April 2000 and wanted a copy of a letter sent by him to the then Commissioner, [NAME], about the visit.

2. He made a complaint about an incident at Governor Macquarie Tower and was told that this had been lost.

3. He believed he did not get all the documents he asked for under FOI.

4. He wanted [NAME] of the Ombudsman's office to investigate his case. He was not happy with the office's investigation of his concerns about the adequacy of the agency's response undertaken by another officer of the Ombudsman, [NAME]. 7 In response [NAME] for the Commissioner submitted:

1. There is a letter in the Tribunal papers from Sutherland Police dated 8 May 2000 about a police visit to [NAME] on 5 April 2000. 2. [NAME] had been provided with a copy of a report (with deletions) about the Governor Macquarie Tower matter – see [NAME]'s affidavit, annexure E, in evidence before the Tribunal below.

3. There was no error of law in the original Tribunal finding that there had been an adequate search for documents not already provided to [NAME]. [NAME] had provided an affidavit as to the exhaustive searches undertaken.

4. Nothing in the appeal warrants an extension to the merits (see ADT Act, s 113) or a referral for further investigation by the Ombudsman (see ADT Act, s 39). 8 We think that it is best in the circumstances to deal with [NAME]'s merits appeal. The [NAME] has examined the material that was before the Tribunal on this occasion, as well as the decision in this case and the one made in 2003. 9 There is a long history of requests and complaints from [NAME]. He will, we expect, remain dissatisfied after this decision. 10 Our review of the files shows that the visit that occurred on 5 April 2000 was undertaken by a local senior officer in the Sutherland area. It was responding to a letter of complaint [NAME] had written to the Commissioner. We will not set out the letter's subject matter, as revealed by the papers on the Tribunal file, here. There was nothing in the material before the Tribunal to suggest that there was any further letter written to [NAME]. 11 [NAME] did make a complaint about police action affecting him at the Governor Macquarie Tower (the headquarters of State government administration, which includes several Ministers' offices, including the Premier) that occurred on 15 August 2002. It is referred to in correspondence in the Tribunal file between [NAME] and the Police Service dated 4 February 2003. 12 [NAME] has lodged several requests going to these matters in recent years, including a complaint to the Ombudsman. 13 In our view the Tribunal's reasons for dismissing [NAME]'s objection are unassailable. The Commissioner's FOI officers co-operated fully with the Tribunal's directions. They put on persuasive evidence going to the sufficiency of search issue. The Tribunal reached the only reasonable decision open to it on the evidence. 14 In our view the appeal must be dismissed.

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