Kiernan v Commissioner of Police, New South Wales Police [2007] NSWADT 18 (16 January 2007)

Last Updated: 19 November 2007

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:	Kiernan v Commissioner of Police, New South Wales Police [2007] NSWADT 18
DIVISION:	General Division
PARTIES:	APPLICANT Teresa Kiernan RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	063076
HEARING DATES:	29/09/2006
SUBMISSIONS CLOSED:	29 September 2006
DATE OF DECISION:	16 January 2007
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - access to documents - document available from agency - amendment of documents - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - document available from agency - Freedom of Information Act - amendment of documents - Summons - application for issue of
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545 Botany Council v The Ombudsman (1995) 37 NSWLR 357 Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 Coburn v Commissioner of Police, New South Wales Police Service [2003] NSWADT 2 Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133 Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187 Morgan v Director General, Department of Education and Training [2000] NSWADTAP 3 Patsalis v Commissioner of Police, New South Wales Police [2003] NSWADT 171 R v A and B [1999] NSWADTAP 2 Travel Action Pty Ltd and Suzanne Frugtniet v Director General, Department of Fair Trading [2003] NSWADT 73
REPRESENTATION:	APPLICANT In person RESPONDENT R Burdick, agent
ORDERS:	Decision under review affirmed

REASONS FOR DECISION 1 On 10 January 2006 the applicant applied for access to documents, and for amendment of documents, under the Freedom of Information Act 1989 (the FOI Act). The applicant provided details of her request in the form of a schedule, in 9 numbered paragraphs: 1. To personally inspect the original NSW Police notebook F365563, either within or without the presence of a supervising police officer, or for a NSW Police officer to inspect it in my presence. ... 2. To personally inspect the original form of the document photocopied that was returned in the said subpoena in response to the request to supply the original NSW Police notebook F365563, either within or without the presence of a supervising police officer, or for a NSW Police officer to insect it in my presence. ... 3. For a NSW Police officer to inspect Matthew Andrew O’Neil’s NSW Police email account to ascertain if he received an email from John Anthony Juric, whose email address may be that of the domain ... and whose email identity may be ..., or any other email address used by John Anthony Juric, after the 27th March 2005, which contains the text that is the same as his police Statement of a Witness 27th March 2005 ... 4. To check, via a NSW Police Officer, the properties and attributes of all electronic sources of police statements signed by Andrew Peter Chatfield, Mathew Andrew O’Neil and John Anthony Juric in the matter of Teresa Kiernan charged with a Breach of Apprehended (Domestic) Violence Order 27th March 2005, to ascertain when these statements were last ‘saved’, given that this writer believes they were amended after the 27th March 2005 after witness collaboration. 5. To supply me with the names of the police officers involved with me whilst I was in custody at Surry Hills Police Station, on the evening of 27th March 2005, so I may privately prosecute. I already know the names of Mathew O’Neil, Oliver Behrens and Sergeant Hyson. I seek the name of the tall thin officer with straight brown hair, olive skin, a long nose, bow legs, who is about thirty years old who was on duty and present in the cells that night and who assaulted me. I seek the name of the two transport officers who took me to the Corrective Services as they both assaulted me. These two were a Caucasian woman, very fit and healthy, blonde hair, about thirty, and a man who was Caucasian, athletic or a body builder, and about thirty. 6. To add to the COPS event system and any other pertaining records management system the following statement from me regarding Juric’s police statement of 21 February 2004 (Two Thousand and Four), as I have already requested in correspondence this year to the Commissioner of NSW Police and Commander Darrell Donnelly, sadly to no avail: I deny the allegations in COPS Event E19 628275 happened. I only went to John Anthony Juric’s house to get my possessions back after he had sent me a very nasty email that day with goodbye in the postscript. He refused to give them to me to be malicious and called the police instead. In court he said that I spat on the door on this occasion but the Event 19 628275 says nothing about this and does not report this allegation or any evidence of saliva on the door which could have been retrieved by police. 7. To amend my statement for sexual assault, where I originally requested this from the Commissioner of Police on 26th February 2005, and have sent many subsequent letters and telephone calls to the same and to the Ombudsman and have had no response. The amendments are enclosed and so my reasons for wanting to amend. 8. To note that wilful or unreasonable uncooperativeness with this freedom of Information request, including not complying in a timely manner, or stating TIE investigations as an excuse, will no doubt result in this applicant appealing to the Administrative Decisions Tribunal. 9. To note that any reason for non-compliance that is in the power of the applicant to comply with, for example by payment of further fees for retrieving documents, or any other thing that you could consult with the applicant about first before refusing to comply, will be appealed at the Administrative Decisions Tribunal. 2 No determination was made in response to this application within the prescribed period. On 2 February 2006 the applicant applied for internal review. No determination was made within the prescribed period. On 27 February 2006 the applicant applied to the Tribunal for review, stating as her reasons: I believe I am entitled to the information amendments and answers specified in the schedule of my reference NSWPF01050029. 3 At a planning meeting held on 12 April 2006 the matter was remitted to the respondent under s65 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). On 6 July 2006 the Acting Deputy Director, Compliance Law Division, notified the applicant of the determination of the internal review application, in the following terms: 1. To allow the Applicant supervised access by viewing a photocopy of the Police Notebook 365563; 2. To advise the Applicant that no record or document, as described by the Applicant in points 3-5 of her application, exists, and she is so advised pursuant to section 28(1)(b) of the Act; 3. To consent to the addition of a notation to COPS Event E 19628275 in the following form: "Ms Kiernan denies the allegations in COPS Event E19628275 happened. Ms Kiernan claims that she went to John Anthony Juric’s house to get her possessions back after he sent her an email that day with goodbye in the postscript. Ms Kiernan claims that Mr Juric refused to return her possessions with malicious intent and instead called the Police. In court Mr Juric said that Ms Kiernan spat on his door on the occasion mentioned but Ms Kiernan notes that Event 19628275 says nothing about this and does not report this allegation or any evidence of saliva on Mr Juric’s door." 4. To refuse the Applicant’s request for amendment to the Statement dated 29 August 2004, on the basis of section 44(a) of the Act. 4 Under section 65(4) of the ADT Act, the application for review is taken to be an application for review of this determination in substitution for the original deemed refusal under section 24 of the FOI Act. Access to Police Notebook F365563 5 In paragraphs 1 and 2 of her request for access the applicant requested access to the original NSW Police Notebook F365563, and for access to "the original form of the document photocopied that was returned in the said subpoena in response to the request to supply the original NSW Police notebook F365563". The internal review determination states that access was to be granted to the notebook in the form requested by the applicant, and continues: However, we understand that although the original notebook was duly forwarded by LSC O’Neil, we have been unable to locate the same, although exhaustive searches have been conducted by both the Compliance Law Division and Surry Hills Local Area Command. We suspect, therefore, that the document requested has unfortunately been lost in transit. 6 The internal review determination states that the respondent is prepared to grant access to the applicant by viewing a photocopy. The respondent has provided to the Tribunal a photocopy of Police notebook F365563 covering the period 16 March 2005 to 3 September 2005. 7 The applicant requested access to the original Police notebook. Under section 27(2) of the FOI Act, access is to be given in the form requested by the applicant, unless the circumstances set out in subsection 27(3) apply. None of those circumstances apply in this instance. The respondent proposes to give the applicant access to the document in the form of a photocopy because the original has not been located. 8 Evidence as to searches for the original Police notebook F365563 was provided in the form of an affidavit by Senior Constable Matthew O’Neil dated 18 August 2006. In that affidavit Const O’Neil states that the original notebook was produced at Downing Centre Local Court in 2005, and access was provided to the applicant and her solicitor at that time. A photocopy of the relevant extract from the notebook was provided in compliance with a subpoena received on 8 November 2005. In paragraphs 8 - 13 Const O’Neil states: 8.On the 1 February 2006 I received a fax (FOI Reference 61705) seeking all documents relating to the applicant’s arrest. The application was complied with and the brief of evidence, including a photocopy of the relevant extracts from my Notebook numbered F365563 detailing the Applicant’s request. 9.On the 31 March 2006 upon the request by Ms Alison Walton, Executive Officer to the Commander, Surry Hills Local Area Command, I was again asked to provide a copy of the relevant parts of the notebook relating to the arrest and charging of the Applicant. This was complied with. At that time I was in possession of the notebook. 10.In early April I received a further telephone call from Ms Walton and was informed that I had been asked to immediately forward my police notebook to the Compliance Law Division of Legal Services. I indicated that the notebook was currently the subject of ongoing investigations and other matters before the Court and would be required by me. I was told that this was considered to be a ‘direction’. 11.Prior to the notebook being forwarded I photocopied the entire document, as is an accepted practice. I placed the notebook into a blue interdepartmental envelope, writing the words ‘Comp LD-Legal Services, Parramatta’ or something similar on the envelope. I also included a typed letter outlining that the applicant not be permitted to touch the notebook as a means of her accessing information outside of that relating to her arrest. I also asked that Mr Juric’s particulars be obscured and that as the notebook was required in other matters, it be returned to me as soon as the matter was concluded. I sealed the envelope and placed it in to a white box allocated for outgoing mail. This box is located in the outer office of the Manager’s office, EI & Q, NSW Police College, Goulburn. 12. Prior to the 24th April 2006 I was contacted by Ms Rebecca Burdick of Legal Services and advised that the notebook had not been received in that Section. I was asked to make enquiries in to the whereabouts of the notebook and ‘fax’ through a copy of the documentation to Legal Services. 13. On the 26th April 2006 I forwarded the entire photocopied version of the official police notebook by facsimile to Ms Burdick at Legal Services, Parramatta. 14. I the made enquiries about the tracking of mail from the EI & Q Office to the mailroom and was advised that mail from all the sections within the College when received at this location are combined and forwarded to the main collection centre where it is sorted by location. 15.A cursory search of the mail room failed to locate the outstanding notebook. 9 Const O’Neil gave oral evidence and was cross examined by the applicant. In cross examination, Const O’Neil stated that he could not recall the exact date in April 2006 that he was asked by Ms Walton to forward his notebook to the Compliance Law Division. He recalled a fax receipt on 31 March 2006. He spoke to Ms Walton twice on the telephone. In relation to paragraph 11, Const O’Neil stated that he had no record of when he forwarded the notebook in the interdepartmental envelope, and he did not recall the exact date. It was on the same date as the telephone conversation recorded in paragraph 10. The photocopier he used keeps a tally of the number of pages used, but does not record the date or time. There is only one photocopier, in the office next door to the work area. The interdepartmental envelope is blue, A4 size, with 6 or 7 grids to write name and location. There is no space for details of the sender. He used his computer to print the letter described in paragraph 11. He did not recall the date or time that he wrote the letter. The computer system is upgraded once or twice a month. Const O’Neil elaborated on the searches outlined in paragraphs 14 and 15. He spoke to a mail sorter in the mail room in Building B. He looked at the counter and surrounds to make sure that nothing had fallen off. Nobody has responsibility for the white box allocated for outgoing mail. It is collected once a day by someone from the mailroom, or sometimes staff will take envelopes to the mail room. 10 In cross examination the applicant put to Const O’Neil that there was a discrepancy in the writing style in paragraphs 10, 11, 14 and 15, and that several paragraphs were deliberately vague. Const O’Neil rejected these assertions. 11 In oral evidence Ms Burdick stated that during the period from late April to early May she spoke to Const O’Neil; asked the manager of the FOI unit whether any mail had been received from Const O’Neil; checked the records section of legal services and asked two people whether the notebook had been received. She again asked Const O’Neil to conduct searches. This activity ceased by mid May 2006. 12 In Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 the President of the Tribunal, O’Connor DCJ, held that where an applicant raises an argument that an agency has failed to locate relevant documents, and puts before the Tribunal some credible material or submissions which persuade the Tribunal that an arguable case exists, the Tribunal has jurisdiction to determine whether the agency has failed properly to determine the application so that there is a deemed refusal of the application for the purposes of s24(2). 13 The issue of what constitutes an adequate search was considered by Deputy President Hennessy in Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]- [15]: 14 There are two issues. The first is whether there are reasonable grounds to believe that the requested documents exist or should exist and are, or should be, held by the agency. If the first question is answered in the affirmative, the next question is whether the agency has taken all reasonable steps to find the documents and is satisfied that they are in the agency's possession but cannot be found or that they do not exist. The adequacy of efforts made by an agency to locate documents the subject of an FOI access application are to be judged by having regard to what was reasonable in the circumstances: Re Anti-Fluoridation Association of Victoria and Secretary to Department of Health (1985) 8 ALD 163. 15 The Tribunal noted in Beesley -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 that in determining whether an agency holds a document, evidence of searches carried out to locate the document will be relevant. The Tribunal observed at [19]: All the Tribunal can do is assess the evidence in each case to decide the strength of the applicant's suspicions and the adequacy of the agency's endeavours to satisfy them. If left unsatisfied by the agency's evidence, its only remedies may be to direct further searches, or the production of better evidence as to searches or the reference of the cases to the Ombudsman. 14 In Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187, President O’Connor DCJ stated at [30]: What constitutes a ‘sufficient search’ will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency’s recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant. 15 The applicant submitted that the evidence provided by the respondent was deliberately vague; that it could have been a genuine mistake, but it looks suspicious; and that there should have been more of an effort to locate the notebook. Const O’Neil expressed the view that things do go missing in a large organisation. 16 The applicant was critical of the drafting of Const O’Neil’s affidavit, in particular what she described as vagueness in dates and discrepancy in writing styles. In cross examination Const O’Neil was able to elaborate on some of his statements in the affidavit, in particular the searches he conducted in the mail room. He was unable to recall when in early April 2006 Ms Walton telephoned, and when he photocopied the notebook and put the original in an internal envelope as outlined in paragraph 11 of the affidavit. However, the central points of his evidence were unchallenged. I am satisfied, based on the affidavit and Const O’Neil’s oral evidence, that he had access to the original Police Notebook F365563 until some time in early April 2006 when he responded to a direction to forward the notebook to the Compliance Law Division by placing the notebook into the internal mail system. Const O’Neil produced the original in court in 2005, and photocopied extracts in response to a subpoena in November 2005. The respondent has provided a photocopy of Police Notebook F365563 numbered sequentially from page 1 to 128, covering the period 16 March 2005 to 3 September 2005. 17 The respondent’s case is that Const O’Neil put the notebook into the internal mail system at Goulburn, addressed to the Compliance Law Unit at Parramatta, and that it never arrived. Const O’Neil’s evidence was that the system for collection of outgoing mail involved its deposit into an open box, the contents of which would either be collected by someone from the mail room, or delivered to the mail room in person by someone from the EI&Q Unit. There was no evidence of any system of recording outgoing mail. This is somewhat surprising, given the likelihood that important and sensitive documents may need to be forwarded within the system. However, having regard to the way in which the system is organised, it is not beyond the realms of possibility that one or more items of outgoing mail may not reach their destination. I am satisfied, based on the evidence of Ms Burdick, that the notebook did not arrive at the Compliance Law Unit. The evidence was that searches were conducted at the place of origin, and the intended destination. There is no indication as to any other possible location where the envelope may be located. I am satisfied that the respondent has undertaken reasonable searches for the notebook, and that it cannot be found. 18 On that basis, the decision of the respondent to provide access to the Police notebook F365563 in the form of a photocopy should be affirmed. Paragraphs 3, 4, 5, 8 and 9 19 The respondent’s representative submitted that these paragraphs are not a request for access to a document as defined in section 6 of the FOI Act, but rather requests for an investigation. The respondent’s representative submitted that the FOI Act is not an avenue for requesting an investigation into an agency’s conduct. 20 The applicant submitted that paragraphs 3 and 4 are requests for electronic data, and as such are covered by section 23 of the FOI Act, and that paragraph 5 is a request for documents that should be kept while a person is in custody. 21 Section 16 of the FOI Act states that a person has a legally enforceable right to be given access to "an agency’s documents" in accordance with the Act. Section 6(1) defines "agency’s document" to mean "a document that is held by the agency". Under section 6(2) (d) a reference to a document includes a reference to a copy of the document, and (e) a reference to a document held by an agency includes a reference to a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency, 22 The term "document" is defined in section 6(1) to include: (a) any paper or other material on which there is writing or in or on which there are marks, symbols or perforations having a meaning, whether or not that meaning is ascertainable only by persons qualified to interpret them, and (b) any disc, tape or other article from which sounds, images or messages are capable of being reproduced. 23 Section 23 of the FOI Act provides: 23 Information stored in computer systems etc If: (a) it appears to an agency that an application relates to information of a kind that is not contained in a written document held by the agency, and (b) the agency could create a written document containing information of that kind by the use of equipment that is usually available to it for retrieving or collating stored information, the agency shall deal with the application as if it were an application for a written document so created and shall be taken to hold such a document. 24 Paragraph 3 is a request for someone to access Const O’Neil’s email account in order to determine whether he received an email from an identified person. Paragraph 4 is a request for a NSW Police officer to check "the properties and attributes of all electronic sources" of three police statements to ascertain when these statements were last "saved". Paragraph 5 is a request for the respondent to supply names of three individuals allegedly involved on the evening of 27 March 2005. 25 The right of access created by section 16 of the FOI Act for access to "an agency’s documents" is to be interpreted as widely as possible, consistently with the principle of openness articulated in the objects of the Act in section 5: Humane Society International Inc v National Parks and Wildlife Service [2000] NSWADT 133. However, this right is subject to the limitations specified in the Act. The definitions set out above limit access to a "document", which may be in written form, or which could be put into written form by usual methods of retrieval or collation. Such a "document" is "held" by an agency if the agency has an immediate right of access to it, or it is in the possession or under the control of an officer of the agency. Nothing in the FOI Act requires an agency to search its records in order to create a document so as to provide specific information requested by an applicant. The requests in paragraphs 3, 4 and 5 are not requests for access to a document already in existence, whether in written form or in electronic form, for the purposes of section 16. 26 Paragraphs 8 and 9 are requests for the applicant to "note" certain information regarding the applicant’s intentions. Neither is a request for access to "an agency’s document" for the purposes of section 16. Paragraphs 6 and 7 27 Part 4 of the FOI Act deals with amendment of an agency’s records. Section 39 provides: 39 Right to apply for amendment of agencies’ records A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records: (a) if the document contains information concerning the person’s personal affairs, and (b) if the information is available for use by the agency in connection with its administrative functions, and (c) if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading. 28 In paragraph 6 of her request the applicant requested the addition of a statement to the respondent’s records. The internal review determination advised the applicant that this has been done, and the applicant agreed at the hearing that this has occurred. In paragraph 7 the applicant requested the amendment of her "statement for sexual assault". The internal review determination identifies this statement as a statement provided by the applicant dated 29 August 2004. At the planning meetings and hearing the respondent’s representative indicated that the respondent was prepared to have a supplementary statement sworn and added to the records. At the hearing the applicant pressed her claim to add to the existing statement. 29 Section 39 does not permit the review of the merits or validity of official action, or allow the rewriting of history: Crewdson v Central Sydney Area Health Service [2002] NSWCA 345; Botany Council v The Ombudsman (1995) 37 NSWLR 357. A statement given to a police officer would not generally be "incorrect or misleading" to the extent that it comprises a record of what was said to that officer at the time: Coburn v Commissioner of Police, New South Wales Police Service [2003] NSWADT 2. If there are errors of fact or opinion, the appropriate way to amend the agency’s records is to add a notation to that effect rather than removing the original opinion: Crewdson v Central Sydney Area Health Service [200] NSWCA 345. That is what the respondent is offering to do, in the form of a supplementary statement. The respondent’s deemed refusal to amend its records should be affirmed. Additional request 30 On 6 May 2006 the applicant sent a letter to the respondent adding a further 6 items to the original schedule items 1-9 of her FOI request. These items included a request for video surveillance of cells and custody situations at Surry Hills Police Station on 27 March 2005; for documents relating to a TIE upgrading project of 28 October 2005 at Surry Hills Police Station; for an answer to her formal request as to why she was refused police bail on 27 March 2005; for an answer as to why Const O’Neil disclosed her address when serving an application to extend an AVO on 6 July 2005; for an answer to a question relating to discrimination by NSW Police; and for reimbursement of specified fees. 31 Under section 53 of the FOI Act, the applicant has a right to apply to the Tribunal for review of an agency’s determination under section 24 or 43. As noted above, the respondent failed to make a determination on the applicant’s request for access dated 12 December 2005 within the prescribed period, and under section 24(2) of the FOI Act, was deemed to have refused access. The applicant requested internal review by letter dated 2 February 2006. Again the respondent failed to make a determination within the prescribed period, and under section 34(6) of the FOI Act, was deemed to have made a determination under section 24 refusing access. The applicant lodged her application for review on 27 February 2006. That application related to the deemed determination of the respondent to refuse access in accordance with the applicant’s request. The Tribunal has no jurisdiction to consider a request for additional documents made after the determination to which the review relates. Summons to produce documents 32 On 15 September 2006 the applicant requested the issue of a Summons to produce specified documents, as follows: All blue interdepartmental envelopes with the words ‘Comp LD – Legal Services Parramatta’ or similar All typed letters within or related All police notebooks within or related All police issue notebooks and letters authored by O’Neil (Mathew) and blue interdepartmental envelopes at Police College Goulburn referring to Teresa Kiernan, including in and out of that mail room or letter box or mail collection centre. All records, including sign-in entries and internal correspondence concerning inquiries about mail by Mathew O’Neil. All records relating to searches by O’Neil of police mail rooms, including log records and diary entries and internal correspondence. It will be necessary and sufficient to comply with this subpoena to gather its contents independently from Mathew O’Neil. 33 Consideration of this request was adjourned to the conclusion of the hearing on 26 September 2006. The respondent’s representative opposed the issue of the summons on the basis that it was oppressive, too broad, and that it concerned documents sought in the FOI application. The applicant stated that paragraphs 10, 11, 14 and 15 of Const O’Neil’s affidavit were the reason why she sought the summons, as the affidavit did not contain details of dates, places and times which were essential to establishing the disappearance of the notebook. 34 Under section 84 of the ADT Act the Tribunal has power to issue a summons on the application of a party to proceedings, and such a summons may require a person to attend and produce documents. The general principles that apply in the ordinary court system to the permissible scope of summons for the production of documents apply to summonses issued by the Tribunal: R v A and B [1999] NSWADTAP 2. 35 The Tribunal has issued a Practice Note in relation to issuing summonses. Relevantly, Practice Note No. 7 provides: "The purpose of this Practice Note is to provide information to parties to matters before the Tribunal as to Tribunal practice in relation to issuing summonses. The relevant legislation is found at section 84 of the Administrative Decisions Tribunal Act 1997 and rules 20 and 46 of the Administrative Decisions Tribunal (Interim) Rules 1998 which are set out in Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998. ... 12. Special provisions for issuing summonses in Freedom of Information, Privacy, Anti-Discrimination, Guardianship and Protected Estates and Appeal Panel matters: Parties to applications under the Freedom of Information Act, Privacy Act, parties to complaints referred to the Equal Opportunity Division under the Anti-Discrimination Act, parties to applications under the Guardianship Act 1987 or Protected Estates Act 1983 or parties to internal or external appeal to the Appeal Panel are required to submit, at the planning meeting, case conference or directions hearing, a list of summonses they intend to issue, and to identify the relevance of the evidence, document or thing to the proceedings. The judicial member allocated to the case will consider the list of summonses. Where the judicial member approves of the issuing of some or all of the summonses listed in submission by a party, that party can then apply to the Registrar for the approved summonses to be issued for the purposes described in paragraph 3 of this Practice Note. Where the list of summonses is submitted after the planning meeting, case conference or directions hearing, or where such a preliminary stage is not being conducted, application to issue the summonses should be filed at the registry. The registry will then submit the material to the judicial member for consideration." 36 In Travel Action Pty Ltd and Suzanne Frugtniet v Director General, Department of Fair Trading [2003] NSWADT 73 Deputy President Hennessy held that the overriding principle in relation to documents produced under summons is that access may be refused if the Tribunal is not satisfied that access is required for any legitimate forensic purpose. In Patsalis v Commissioner of Police, New South Wales Police [2003] NSWADT 171 President O’Connor DCJ commented on a summons requesting production of documents the subject of an FOI request in the following terms: The summons might therefore be said to lack any legitimate forensic purpose, and also to be an abuse of the process that the Parliament has contemplated will be followed in respect of FOI proceedings. ... But nevertheless, the whole point of FOI proceedings is to permit a structured environment to apply to disputes over requests by members of the community for access to official documents. The Parliament has laid down a detailed code as to the way in which those requests are to be dealt with and determined. It would put the whole FOI scheme on its head if people who had brought forward their request within an FOI framework then within the context of those very proceedings started issuing summonses with the same objective. So, it seems to me that both of the principal submissions of Mr Waters (counsel for the Commissioner) are made out, in particular that it is an abuse of process within the environment of FOI proceedings to issue summonses which have as their object essentially the same documents that are the subject of the FOI request. And secondly, it does not serve any legitimate forensic purpose to do that because the documents which are the subject of the summons are already the subject of the proceedings, so it is impossible to see what added value the summons provides. 37 As discussed above, one of the issues for determination was whether or not I am satisfied that original Police Notebook F365563 should be held by the agency, and whether the agency has taken all reasonable steps to find it. In my view, in this instance the summons was an attempt by the applicant to obtain evidence which might cast doubt on, or corroborate, the sequence of events as outlined by Const O’Neil in his affidavit. Const O’Neil was cross examined at length on the contents of his affidavit. I concluded that the issuing of the summons in the form requested by the applicant was not necessary for disposing fairly of the proceedings, and in that sense, was oppressive: Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545; Morgan v Director General, Department of Education and Training [2000] NSWADTAP 3. Accordingly, I decided not to approve the issue of the summons. Order Decision under review affirmed.