Coburn & anor v Commissioner of Police, New South Wales Police Service [2003] NSWADT 2 (6 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Coburn & anor -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 2

PARTIES: APPLICANTS

Russell Coburn

Barbara Coburn

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 013240

HEARING DATES: 20/06/2002, 04/09/2002

SUBMISSIONS CLOSED: 17-10-2002

DECISION DATE: 06-01-2003

BEFORE: Robinson MA - Judicial Member

LEGISLATION CITED: Freedom of Information Act 1989

Judicial Officers Act 1986

CASES CITED: N(No 3) v Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 (appeal pending)

Director-General, Department of Community Services v S [2000] NSWADTAP 27

APPLICATION: amendment of documents

Freedom of Information Act - amendment of documents

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANTS

R Coburn

RESPONDENT REPRESENTATIVE: RESPONDENT

J Tunks, solicitor

ORDERS: The matter be relisted for argument concerning the mode of amendment, if any, of the respondent's records in accordance with these reasons.

Reasons for Decision:

1 This is an application pursuant to Part 4 of the Freedom of Information Act 1989 (NSW) ("the FOI Act") seeking review of the refusal of an agency to amend its records relating to the applicants. Section 39 of the FOI Act provides for a right to a person to apply for the amendment of an agency's records if the document contains information concerning the person's personal affairs, is available for use by the agency in connection with its administrative functions and, if the information is, in the opinion of the applicant, "incomplete, incorrect, out of date or misleading". The respondent is an agency under the Act.

2 The applicants seek to have the respondent's records amended by deleting certain words that appear in three documents:

(a) a Police Occurrence Pad entry typed by Sergeant Russell Eastham dated 17 July 1998(part of Exhibit B) ("the occurrence pad entry");

(b) a Computerised Operational Policing System ("COPS") Information Report I 5664540 entered by Sergeant Eastham on 17 July 1998 (Exhibit E) ("the first COPS entry"); and

(c) a COPS Information Report 6988882 entered by Senior Constable Stephen Gregory Fox on 7 September 1998 (part of Exhibit B)("the second COPS entry").

3 The amendments ultimately sought by the applicants under the FOI Act are that the whole of the occurrence pad entry and the first COPS entry should be deleted and that the first five lines of the paragraph styled "Narrative" of the second COPS entry, being the first three sentences, should be deleted. It is contended by the applicants that the contested information is both "incorrect" and "misleading" within the meaning of those words in s 39(c) of the FOI Act. In the alternative, the applicants contend that only certain words (being those considered the most objectionable in the opinion of the applicants) should be deleted from the subject documents. The primary contention of the applicants is that the occurrence pad entry and the first COPS entry are "fabrications" or that they were not created on the day or time of day they were purportedly made (namely, on 17 July 1998). The passage objected to in the second COPS entry is apparently based on information in the occurrence pad entry and the first COPS entry.

4 The Tribunal hearing was conducted in Kiama on 20 June 2002 and concluded in Sydney on 4 September 2002. An extended directions hearing was held in Sydney on 1 August 2002 primarily relating to the issue of subpoenas. At these hearings, the applicants, who are husband and wife, were represented by Mr Russell Coburn and a solicitor appeared for the respondent. Oral evidence was adduced at Kiama and in Sydney and written submissions were filed up to 17 October 2002.

5 The background to these proceedings relates to an application earlier made by the applicants for access to the respondent's documents under the FOI Act. The subject documents were released to the applicants (some with deletions which are not material in these proceedings). The applicants then made the present application for amendment under the FOI Act. The parties agree, and I accept, that the documents in Exhibit A, the applicants' amendment application dated 13 June 2001, and the respondent' internal review decision dated 18 May 2001, comprise the relevant application and decision under review before the Tribunal.

6 In the present case, the respondent does not contest that the subject documents contain information concerning the applicants' personal affairs or that the said information was available for use by the respondent in connection with its administrative functions [cf: N(No 3) v Commissioner of Police, New South Wales Police Service [2002] NSWADT 34 (appeal pending)].

7 In addition to the application, the decision under review and the subject documents, the documentary evidence before the Tribunal for the respondent included three affidavits which were admitted and read without objection (Exhibit C). Each of the deponents were subjected to extensive cross-examination by the first-named applicant (except where otherwise indicated in these reasons, "the applicant"). The respondent also tendered a further copy of the occurrence pad entry with fewer deletions on it (Exhibit D), and copies of letters each dated 19 December 2000 sent by the applicants to Mr & Mrs Schmatt (Exhibit F). The documentary evidence of the applicants comprised an affidavit of the second-named applicant, Mrs Barbara Antoinette Coburn, sworn on 6 June 2002 (Exhibit 1), an affidavit of the first-named applicant sworn on 6 June 2002 with extensive background documentation attached, and Telstra telephone records of the second-named applicant relating to a telephone call made by the first-named applicant to Mr Schmatt on 17 July 1998 (Exhibit 3). The respondent objected to the applicants' affidavits only on grounds of relevance. I admitted them subject to their relevancy to the issues in the proceedings being established.

8 The applicants assisted the Tribunal by providing written submissions which were received on 25 September 2002 and the respondents also assisted the Tribunal by providing written submissions on 17 October 2002.

9 A significant portion of the evidence in these proceedings concerned the events immediately leading up to the recording of the occurrence pad entry on 17 July 1998. There occurred a series of about three telephone conversations on the afternoon or early evening of that day. Although there was some dispute as to the precise time of these telephone conversations, it is not contested that they each occurred in the following sequence. The first telephone conversation was between the applicant and Mr Ernest Schmatt, the Chief Executive Officer of the Judicial Commission of New South Wales (an independent statutory corporation established under the Judicial Officers Act 1986(NSW) which inter alia, examines complaints made against judicial officers in New South Wales). The second telephone conversation was between Mr Schmatt and Mr Douglas Dick, a magistrate based at Nowra Local Court in New South Wales. The third telephone conversation was between Mr Dick and Mr Russell John Eastham, an inspector of police, then based at Nowra Police Station. Broadly speaking, in these conversations, the applicant said something to Mr Schmatt. Mr Schmatt then told Mr Dick what the applicant had just told him. Mr Dick then telephoned Inspector Eastham and said to him what Mr Schmatt had just told him and he said some other things as well (based on his own knowledge and beliefs). Mr Eastham wrote all these things down and at the termination of the third telephone conversation, he typed the occurrence pad entry from his handwritten notes.

10 Affidavit and oral evidence was adduced by the respondent from Mr Schmatt, Mr Dick and Inspector Eastham regarding these conversations.

The Occurrence Pad Entry

11 The form of the occurrence pad the subject of these proceedings is a standard printed form which has three marked columns onto which one may directly write or type. On the printed form, the first column is headed "Date, Time and Action Required", the second column is headed "Particulars" and the third column is headed "Police in Charge, Action/Result, Time, Date, Signature and Rank of Police involved". In the occurrence pad entry, in the first column, the following typed words appear "17.7.98 4.30pm From Mr Doug DICK [his address is removed] 98/7/60". In the second column, the following typed entry appears:

"INDIRECT THREATS RECEIVED BY MAGISTRATE DICK FROM RUSSELL COBURN

I have just received a call at home from the NSW Judicial Commission. They received a telephone call this afternoon from Russell Coburn and during the conversation Coburn stated he knows where I live and he threatened my life. He also made threats that he would shoot any police officer who interfered with him. I am personally not in fear of this man and do not want any police action against him in respect of his threats. I do not require an apprehended violence order and I don't believe he knows where I live. What I am concerned about is the welfare of any police officer who may come into contact with him in case he does in fact possess a firearm. He resides at [applicant's address recorded]. He is a man in his 50', he is bald and has a goatee beard. He has made numerous other threats and complaints over many months against solicitors and barristers, Court registrars, even Jim Baker and the Mercury concerning a civil matter currently part heard before my court. I intend to deal with his threats when this civil litigation is before the Court next week for finalisation. The main reason for my call is to make the Nowra and Ulladulla Police aware of the situation should I or they experience any problems this weekend." (my emphasis)

12 In the third column there appears a typed continuation of this narrative in the following terms:

"BRIEF HISTORY OF INCIDENT:

Coburn had a house built for him and refused to pay the builder. The builder sued and Mr Dick found in his favour ordering Coburn to pay $32,000.00. Coburn has since written sundry letters of complaint regarding a large number of people connected with the matter, including Magistrate Dick."

13 Underneath the main entry in the "Particulars" column is the signature of Inspector Eastham.

14 In the third column there also appears a series of entries where typed provision was made for a number of officers to note the entry. The typed words appear "INSP EMERTON INF"D (sic) "INSP SCHREIBER TO NOTE" after which there appears to be a signature dated 17 July 1998 timed at 5.30pm. After that there appears the typed expression "Message faxed to Ulladulla Police Station 5pm t.d" to which the handwritten words are added "Red'd by S/C Keans". There then follows the typed words "SGT WALKER TO NOTE TO INFORM POLICE AT MUSTER", after which there appears two signatures, one dated 17 and the other 18 July 1998.

The First COPS Entry

15 The first COPS entry is also dated 17 July 1998. It was typed by Inspector Eastham on that day after the occurrence pad entry was made. As the entry appears in Exhibit E, it is a printout from a computer database. It provides, inter alia, that the document is described as an "Intelligence Report Summary", the reference number allotted is I 5664540 and the short title to the entry appears as "THREATS MADE TO MAGISTRATE DOUG DICK". The intelligence category is stated to be "Harassment" the status of the document is "Reviewed", the security of the entry is "Restricted", the source of the entry is "External Agency", the "Admiralty Rating" is styled "F 3 UNCONFIRMED", and the Review date is "17 July 2004". There are also entries setting out the submitting officer's identifying details and the reviewing officers' identifying details. In addition, the "Receiving party" is stated to be the Sector Supervisor of police at Ulladulla and the "Dissemination reason" is stated to be "FOR INFO OF ALL POLICE". The substantive section of the entry, styled "Narrative" provides:

"At 4.30pm on the 17/7/98 Nowra Local Court magistrate Doug Dick contacted this station stating a Russell Coburn of [address set out] had earlier in the afternoon rang the NSW Judicial Commission and made threats against his (Dick's) life. He also apparently stated he was prepared to shoot at police. Mr Dick stated he did not fear Coburn and desired no police action in respect of the threats. Mr Dick did however want police to know of the threats should they encounter him. He went on to say the matter stems from a civil case currently before him involving Coburn and a building contractor. Mr Dick ordered Coburn pay $32,000 and since then Coburn has written letters of complaint and made threats against barristers, solicitors, registrars and even media people and outlets involved in the civil litigation. Ulladulla police have been informed of this matter as Coburn lives in their patrol." (my emphasis)

The First Telephone Conversation

16 On 17 July 1998 the applicant telephoned Mr Schmatt at the Judicial Commission's offices. The call was of about 19 minutes duration. The applicant wanted to discuss the issue of the rejection by the Judicial Commission of his and his wife's complaints against the conduct of Mr Dick which arose during the course of the hearing into the civil matter ("the building dispute"). Detailed background regarding the circumstances leading up to the first telephone conversation is set out in the affidavit of the applicant and in the evidence of Mr Dick. The nub of it is that Mr Dick was the presiding magistrate in the building dispute involving the applicants which was heard at Nowra Local Court over many days between 1997 and 1998. The evidence reveals there was a significant amount of tension in relation to the conduct of the proceedings and two complaints were made by the applicants in early 1998 against the magistrate to the Judicial Commission which were dismissed on about 14 July 1998 by a letter of that date to the applicants. It was in relation to this letter that the applicant telephoned Mr Schmatt on 17 July 1998. They had spoken by telephone a number of times before that day.

17 Mr Schmatt's evidence relating to this phone conversation was that he received a telephone call at about 4.45pm from the applicant. He said in his affidavit:

"[The applicant] said he had received the Commission's letter dated 14 July 1998 concerning his complaint and he disagreed with the Commission's findings. He detailed his disagreement and argued about aspects of the Commission's decision. During the course of that conversation he said to me that he would now take his own action against people and would protect his home. He said people in uniform should not call on him or there would be trouble.

During the conversation he said to me that he had found out Magistrate Dick's address at [area identified] and that he also knew where Kearns' Barrister and Solicitor live. I was aware that he was referring to his opponent's counsel and solicitor. I said to him that I took his comments seriously and to be a threat against these people. I also told him that I would inform the appropriate people in relation to this matter. He then became very defensive and denied that he had made any threat against anyone. He also said that he had a "witness" to our conversation. The conversation was terminated at that stage.

Following this call I had a conversation with one of my colleagues in his office. I did this because I was generally concerned about the call and particularly with the tone used by Russell Coburn and the content of what had been said. This conversation lasted about ten minutes. I then returned to my office and attempted to contact Magistrate Dick by telephone at Nowra Court House. I did this shortly after 5.00pm. I was unable to contact him there and subsequently telephoned his home. At about 5.30pm I spoke to Magistrate Dick at his home and relayed the conversation referred to above to him. We had a further discussion about what action should be taken and he advised me that he would notify Nowra Police of the call from Mr. Coburn as a precaution. He also advised me that his home has a security alarm system.

Immediately after the telephone call from Russell Coburn I made a contemporaneous note of the conversation in my diary. That entry is marked 4.45pm Following my conversation with Magistrate Dick I made a further entry in the same diary which is marked 5.30pm" (my emphasis)

18 During the course of the applicant's extensive cross examination of Mr Schmatt at the hearing, Mr Schmatt was shown the Telstra telephone records of the applicants (Exhibit 3) and agreed that his contemporaneous notation of receiving the telephone call from the applicant at 4.45pm could possibly in fact have been 3.45pm (which might have better reflected a note taken shortly after a 19 minute conversation commencing, according to Exhibit 3, at 3.12pm). Apart from the issue of the correct times the first telephone conversation and the second telephone conversations occurred, Mr Schmatt did not resile from the above evidence. He said he was sure the conversations occurred late on a Friday afternoon and he made his diary entries that same day. He said he regarded the applicant's comments as a threat, particularly having regard to the tone of voice said to have been used by the applicant to him in the conversation. He agreed with the applicant's contention that in this phone conversation, the applicant did not in terms make any threat on the life of Mr Dick and agreed he made no threats in terms that he would shoot any police officer who interferes with him (as was later that day to be recorded on the occurrence pad entry). He also agreed with the applicant that he never said these things to Mr Dick during the course of the second telephone conversation.

The Second Telephone Conversation

19 The second telephone conversation commenced about ten minutes after the first telephone conversation ended. There was some dispute between the parties about the timing of this conversation. On balance, I consider the second telephone conversation commenced at about 3.45 to 4.00pm that day. Mr Schmatt telephoned Mr Dick and relayed to him what he had been told by the applicant in the first telephone conversation. In Mr Dick's affidavit, he says that the telephone call from Mr Schmatt was received by him at his home "sometime after 4pm". In cross examination, he said the second telephone conversation was of about 30 minutes' duration and immediately after the conversation ended he then telephoned Inspector Eastham (Transcript 20/6/02 at 21). He also said that he made no notes of either conversation.

The Third Telephone Conversation

20 The third telephone conversation commenced between about 4.00 and 4.30pm on that day when Mr Dick telephoned Inspector Eastham at Nowra Police Station.

21 In his affidavit evidence, Mr Dick explained that the occurrence pad entry was "consistent" with his recollection of the information he supplied Inspector Eastham (who held the rank of Sergeant at that time). In cross examination, he further explained that only the first two sentences of the information contained in the "particulars" column of the occurrence pad entry could be attributed to words spoken by Mr Schmatt in the second conversation. The remainder came from him and was based on his knowledge and belief (Transcript, page 26). He gave detailed evidence regarding various alleged "threats and complaints" concerning the applicant which I do not propose to set out here (at Transcript pages 26-29).

22 Inspector Eastham stated in his affidavit that during the telephone conversation with Mr Dick, he made handwritten notes which, immediately after the telephone conversation, he used to type the occurrence pad entry. He then destroyed the notes or left them somewhere. He said:

"A station pad is maintained at all police stations and lists matters of significance for either specific officers or the station in general. The records are created contemporaneously to their receipt and are given sequential numbers. Prior to the introduction of the station pad most stations maintained two such records, an occurrence pad and a telephone message pad. The occurrence pad detailed significant or serious matters such as fatal motor vehicle accidents, serious criminal matters and other information deemed important to the police at that station. The telephone message pad recorded both messages for police and jobs that required a response.

When recording of police information and reports of crime became computerised matters formerly placed on the occurrence pad were inputted directly into the COPS system. This saw the end of the occurrence pad. Similarly when messages became computerised on the CIDS system the telephone message pad ceased and the remainder of matters that still required manual recording were done so on what then became known as the station pad.

I recorded the conversation with Mr Dick on the next available station pad using an electric typewriter on the desk in the station area of Nowra Police Station. That entry bears number 98/7/60, which represents the year, month and entry number. The language used in the entry is my own, it is my interpretation of the important matters raised by Mr Dick relevant to police recorded in such a manner to allow other police to appreciate the situation, its history and what was required of them in response to it.

I spoke with Inspector Emerton, my supervisor and told him of the matter. I facsimiled a copy of the station pad entry to Senior Constable Keane at Ulladulla for the information of all police at that station as Mr Coburn's address in Fisherman's Paradise was within their patrol boundaries.

I also created an intelligence report, no. I 5664540 with basically the same information that was recorded on the station pad. I did this because the matter was serious and worthy of recognition at a State level.

My finishing time on this day would have been 6.00pm so the recording of the station pad entry, its faxing to Ulladulla, informing Inspector Emerton and creating the intelligence report would all have been completed within about an hour of my conversation with Dr Dick."

23 In his oral evidence, Inspector Eastham provided significant further detail about the creation of the respondent's documents and meaning of the terms and expressions used in them. In relation to the occurrence pad entry, he said it was a single page that, when completed, was placed on to a clipboard which was hung on all wall in a prominent position at the Police Station so that offices walking past would be invited to read it. After a while, the occurrence pad entry is filed in a folder which is bound and kept under the front counter of the Police Station. He said that such occurrence pads are still used in this form in New South Wales (Transcript page 49).

24 Inspector Eastham gave evidence that he was an experienced police officer of 24 years and that he, like Mr Dick, did not consider the threats allegedly made by the applicant to be genuine or to be capable of being carried out by the applicant. He said that if he had considered the threats to be genuine and capable of being acted upon by the applicant he would have "taken an entirely different course of action altogether" and he would have sent a police car around and taken formal statements from Mr Dick and Mr Schmatt. He said he did not do this because, in effect, the matter did not warrant further investigation, it merely required dissemination of the information (Transcript pages 57-58).

25 Inspector Eastham also gave detailed evidence concerning the creation of the first COPS entry (Exhibit E). He said that he typed it at 5pm that day after typing the occurrence pad entry (Transcript at page 79). At one stage, I asked him (at Transcript page 80) what the words "Admiralty Rating: F 3 UNCONFIRMED" meant and he said:

"A. Okay what happens there is, you are asked a number of questions at the beginning of the, of the Intel [Intelligence] report along the lines of the factual part of the Intel report, whether it can be, whether it's likely or unlikely, the source, whether you've dealt with the source before or whether you haven't, whether the source has been reliable before or whether it hasn't, your opinion and all these things are given a grading. So at the end if you had a completely anonymous report that was ridiculous it might get a Z12, or if you had an extremely factual report from someone who was reliable and that you've dealt with before and given you, it might be an A1. And this one, this one's turned out to be an F3.

Q. And what does mean?

A. Unconfirmed is virtually--

Q. These allegations have not been investigated?

A. Virtually yes, that--

Q. Is that right?

A. That everything in the report is not confirmed to be true." (my emphasis)

26 In many questions put by the applicant to Inspector Eastham, it was suggested that the occurrence pad entry was not in fact written on 17 July 1998 at the time the Inspector said it was written, namely, between 4 and 4.30pm that day. In the absence of any evidence to the contrary, I accept the evidence of Inspector Eastham in this regard.

27 I accept the evidence of the three witnesses for the respondent as to how the three documents the subject of these proceedings were created. In the applicant's lengthy submissions, he pressed upon the Tribunal to reject certain evidence of these witnesses and pointed to many alleged inconsistencies and alleged fabrications. I am not satisfied the applicant has established that any document before me in these proceedings was fabricated. To the extent that there are inconsistencies between the evidence of the said witnesses, I find them to be of little significance or consequence in the premises. In any event, I consider all three witnesses were plainly witnesses of truth and their evidence was not successfully challenged by the applicant in any relevant respect in these proceedings.

28 The two affidavits of the applicants go primarily to the detail of the background leading to the first telephone conversation and to the matters leading to the creation of the second COPS entry and details as to the manner in which these matters were later investigated and ultimately came to be before the Tribunal. It is sufficient to note for present purposes that the position of the applicants is that they contend, inter alia, that on or before 17 July 1998 there were no threats made by them to the life of Mr Dick and no threats that they would shoot police officers (or anybody else) (see, for example, the affidavit of Mrs Barbara Coburn at paragraph 41).

The Nature of the Information

29 In amendment of records proceedings under the FOI Act it is important to identify the nature of the subject information held in the records of an agency. An agency (and the Tribunal) may only amend the information if it is incomplete or incorrect, out of date or misleading in a material respect (s 44 of the FOI Act). The said information should being considered in its proper and applicable context.

30 In the present case, the correct characterisation of the occurrence pad entry and the first COPS entry is that they purport to comprise unconfirmed, unverified information received by the police from a member of the public for the information and use of the police that relates in part to the applicants. I am satisfied that, as such and in this particular context in the present case, the said information is largely not incorrect or misleading in the sense contended for by the applicants to the extent that it comprises a record of matters that were spoken of between Mr Dick and Inspector Eastham.

31 However, the information presented in the occurrence pad entry and the first COPS entry have the appearance of constituting facts (as opposed to opinion or mixed fact and opinion). Having heard all the evidence, I consider that not all of the information contained in the occurrence pad entry and the first COPS entry is true and correct in this regard. In some respects, information presented as factual information is plainly not correct. It is plain from the evidence, for example, that the applicant did not in terms threaten the life of Mr Dick and he did not in terms make threats that he would shoot at police if they interfered with him (or that he would be prepared to shoot at police at all). It seems to me that what happened here is that Mr Schmatt and Mr Dick together discussed the available facts and their respective concerns and opinions regarding the said conversations and these comments and opinions have made their way to the respondent's records. Mr Schmatt makes this clear in his evidence that, in effect, he took the combination of the tone of the applicant's voice and the words used to constitute (according to him) a "serious threat" against Mr Dick and people in uniform calling in on the applicant's property. That is plainly an opinion being expressed. It is not a fact. Similarly, the information imparted by Mr Dick to Inspector Eastham also plainly included some component of opinion or belief. This is clear from his evidence and it is accepted by the respondent in his written submissions (at paragraphs 23-27).

32 The respondent contended that I should hold that as the subject information merely records information and opinion given by a member of the public that has not been investigated by the police and is not confirmed to be correct (to a police officer reading the said entries) the information cannot now be varied or amended by the Tribunal. I would accept this contention if the subject information did in fact accurately record and reflect the fact that opinions were being expressed in the occurrence pad entry or the first COPS entry. However, they were plainly recorded as facts in the said reports and not in any fashion as opinions or mixed opinions and facts. It was only upon investigation by the parties before the Tribunal that the existence of any opinion information was revealed.

33 I determine that those parts of the said records that I have identified in italics above are incorrect in part and misleading in that the said records failed to record or identify which part of the said information that constituted an opinion, or a mixture of fact and opinion and which part was fact.

The Second COPS Entry

34 The second COPS entry is dated 7 September 1998 and was made by officer Stephen Gregory Fox of Ulladulla Police Station on that day. On the document itself, the "Status" of it is said to be "EVALUATED" and the "Admiralty Rating" of that entry is stated to be "A 1 CONFIRMED". It is not a document that purports merely to record unconfirmed information from a member of the public. It is written by a police officer and has ascribed to it the highest credibility rating and would be regarded by other police officers as "extremely factual" to use the words of Inspector Eastham.

35 The report is headed "COBURN - AGGRESSIVE BEHAIOUR - SERVICE OF SUMMONS" and relates to an attempt of service of court process by a process server on the property of the applicants. The process server apparently asked the local police to attend the premises with him while he served a statement of liquidated claim on a person or persons at the premises in order to prevent a "breach of the peace". During the course of the attempted service, words were spoken and a verbal "threat" to the process server was allegedly made by the applicant. Immediately following the detailed recitation of these events in the narrative to the entry is the following second narrative:

"[The applicant]is known for his prior threats made to other persons involved in this civil dispute. He has previously made threats against Magistrate Doug Dick threatening his life. He has also previously threatened to shoot police. [The applicant] has made numerous complaints to various departments in regards to actions by Solicitors, Barristers, Court Registrars and the media. Nowra telephone message 96/7/60 refers. There is no doubt that police attending further matters involving [the applicant]will become involved in circumstances similar to this." (my emphasis)

36 In his amendment application, the applicants request that the first three sentences of this particular narrative be deleted on the grounds they are incorrect or misleading in a material respect. In the alternative, in an application made at the hearing, and not opposed by the respondent, the words in italics are sought to be deleted.

37 I am not satisfied that the whole of the first three sentences are incorrect or misleading in a material respect. However, I am satisfied that the evidence establishes as a whole that the words identified in italics are plainly incorrect or misleading in material respects. To the extent that the said information was allegedly based on the first or second telephone conversations, the evidence plainly does not support it. To the extent it was based on the information provided by Mr Dick to Inspector Eastham in the third telephone conversation, while it may have been accurately recorded by Inspector Eastham, that information represented, in my view, the opinion or belief of Mr Dick regarding the applicant's comments as reported to him by Mr Schmatt that day. When Mr Dick was cross examined by the applicant about the alleged threat on his life, the following exchange took place (Transcript page 24):

"Q. Now you received a telephone call from Mr Schmatt from the Judicial Commission and he told you that I threatened your life?

A. He told me you made general threats, that you implied you knew where I lived and that you would be certainly placing me and my family in some danger.

Q. Well I refer back to the occurrence pad entry, and you said this is accurate, the Judicial Commission or Mr Schmatt told you that I said or I threatened your life?

A. In an implied way once again ..."

38 When Mr Dick was cross examined by the applicant about the alleged threat to shoot police, I am satisfied that Mr Dick may well have used those words to Inspector Eastham in the third telephone conversation. However, I am not satisfied that there was sufficient foundation for the information to properly be regarded as a correct fact. The transcript (at pages 24 - 29, esp at 27) reveals that Mr Dick did not in his evidence actually assert that it was the fact that the applicant said in terms that he would shoot police and he offered some other justification (occurring earlier in time and unrelated to the Judicial Commission conversation) as to why he mentioned the word "firearms" at all in his conversation with Inspector Eastham.

39 On balance, I consider that there is insufficient evidence to support the factual assertion (as it appears in the second COPS entry) that the applicant had made threats that he would shoot police officers prior to 17 July 1998. When he said that he did make such an assertion to Inspector Eastham, I find Mr Dick was merely expressing his own personal fear or opinion as to the safety of any police officers (or sherrifs, who he also mentioned in his evidence) who might have attended the property of the applicants on the weekend after the telephone conversations based on his own knowledge and on the earlier conversation with Mr Schmatt.

40 Accordingly, I am also satisfied that the words "threatening his life. He has also previously threatened to shoot police" where they appear in the second COPS entry are incorrect and misleading in material respects for the same reasons that I have found the earlier entries are incorrect and misleading.

Manner of Amendment

41 The next issue concerns the mode of amendment of the agency's record in accordance with section 43(1) of the FOI Act.

42 The proper mode of amendment of an agency's records was discussed by the Appeal Panel of this Tribunal in Director-General, Department of Community Services v S [2000] NSWADTAP 27 at [59]- [79] and I adopt what is said there. An "amendment" can take the form of a removal, an addition to, or a variation of the defective text (ibid at [70]).

43 The applicants have sought deletions only. In the present case, rather than delete the impugned words, I consider it more appropriate for me to formulate an appropriate addition to the text of the second COPS entry. There is no pressing need to delete the words and, as such, to attempt to rewrite history, if they can be explained and placed in their proper context by way of a simple addition to the text (which, in any event, is primarily used for internal police purposes).

44 Under s 43(1) of the FOI Act, the Tribunal can only determine an application by amending records "in accordance with the [applicant's] application". In the absence of any further alternative application in the present case I am not confident of the extent to which I feel can properly make any additions to, or variations of the defective text when only deletions are sought.

45 I consider, subject to hearing further from the parties concerning the manner of amendment of the record, that the following proposed additions to the record should be made.

46 As to the occurrence pad entry, I consider that the following words should be added by means of a statement physically attached to or added to the entry:

"NOTE: In the telephone conversation between Mr Russell Coburn and "the NSW Judicial Commission", Mr Russell did not in terms directly threaten the life of Mr Dick. In addition, at no time on or prior to 17 June 1998 did Mr Russell make threats in terms that he would shoot any police officer who interfered with him. This note has been added at the direction of the Administrative Decisions Tribunal of New South Wales in matter no 013240."

47 As to the first COPS entry, I consider that the following words should be added by means of a further entry onto the COPS computer system by adding the following words:

"NOTE: In the telephone conversation between Mr Russell Coburn and "the NSW Judicial Commission", Mr Russell did not in terms directly threaten the life of Mr Dick. In addition, at no time on or prior to 17 June 1998 did Mr Russell state he was prepared to shoot at police. This note has been added at the direction of the Administrative Decisions Tribunal of New South Wales in matter no 013240."

48 As to the second COPS entry, I consider that the following words should be added by means of a further entry onto the COPS computer system by adding the following words immediately occurring after the second narrative:

"NOTE: Mr Russell did not directly threaten the life of Mr Dick. In addition, at no time on or prior to 17 June 1998 (the date of the Nowra telephone message 98/7/60) did Mr Russell state he was prepared to shoot at police. This note has been added at the direction of the Administrative Decisions Tribunal of New South Wales in matter no 013240."

49 In my view, subject to hearing further from the parties, these entries should be sufficient to alert police to information that is correct and not misleading and fulfils the purposes of Part 4 of the FOI Act.

50 If the applicants' application does not extend to the making of the above or similar amendments (by way of additions), or acceptable related amendments, I consider I would have little choice, given the limitations of section 43(1)(a) of the FOI Act, but to refuse the application.

51 I will hear the parties' submissions on the issue before making any amendments to the records. Further, I will hear the parties on any other order or determination appropriate to giving effect to or implementing any final determination that might be made.

52 For the present, I make the following determination:

The matter be relisted for argument concerning the mode of amendment, if any, of the respondent's records in accordance with these reasons.