RT v Commissioner of Police, NSW Police Force [2010] NSWADT 24 (28 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
RT v Commissioner of Police, NSW Police Force [2010] NSWADT 24


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
RT

RESPONDENT
Commissioner of Police, NSW Police



FILE NUMBERS:
083038

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
6 October 2009



DATE OF DECISION:
28 January 2010

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Freedom of Information Act 1982 (Cth)

CASES CITED:
Bennett v University of New England, (Unreported 7 August 1991
Bennett v University of New England, (Unreported 7 August 1991, Dist Ct)
Chand v Commissioner of Police, NSW Police [2007] NSWADT 131
Crewdson v Central Sydney Area Health Service [2002] NSWCA 345
Neeson v Chief Executive Officer of Centrelink (2006) 154 FCR 489; 92 ALD 77; (2006) FCA 1107
Re Jacobs and Dept of Defence (1988) 15 ALD 645
Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135
Re Mann and Department of Health (ACT) (1994) 37 ALD 266 at 271.
Re Page and Director-General of Social Security (1984) 6 ALN N171

TEXTS CITED:


APPLICATION:
Freedom of Information Act - Amendment of documents – notation of documents

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
RT
RESPONDENT
Commissioner of Police, NSW Police


ORDERS:
The decision under review is affirmed.


Reasons for Decision:

REASONS FOR DECISION
1 In these reasons the names of private individuals, and other information which might identify them, have been anonymised so as to preserve the privacy of their personal affairs. The applicant is referred to as RT.

2 The Applicant has made a number of requests to the Respondent for access to documents under the Freedom of Information Act 1989 ("the FOI Act"). This matter concerns three documents held by the Respondent to which access was granted following FOI requests. The three documents are:

I23079765 - an Information Report Summary from the NSW Police Service Intelligence Information System;

I42749101 - an Information Report Summary; and

E6219863 - a record from the NSW Police Force's Computer Operating Policing System ("COPS")

3 The Applicant applied to the Respondent requesting that the Respondent amend each of the three documents by adding specified notations. The Respondent added only some of the notations sought by the Applicant.

4 The Applicant applied to the Tribunal of the Respondent's decision to not make the notations to the documents.

5 As a result of negotiations between the parties, most of the issues in dispute between them have now been resolved. I made various consent orders in relation to documents I23079765 and I42749101. There was some dispute in regard to whether there was compliance with those consent orders however I understand that those issues have now been resolved.

6 It is my understanding that the only issue that remains outstanding concerns the COPS record E6219863.

7 Document E6219863 records an incident on 6 December 1998 when RT was arrested for offensive conduct. The record was created by Inspector Warren Cotton and records what Inspector Cotton says happened that day. The record also includes the assertion that RT participated in a record of interview at Windsor Police Station and that in the interview he admitted the offence.

8 RT disagrees with Inspector Cotton’s version of the incident and also denies having RT participated in a record of interview or that he admitted the offence. RT sought to have a notation added to the document pursuant that records his version of the incident and his recollection of comments made by the presiding Magistrate, Dr Brown when the charge was heard before the Windsor Local Court on 1 June 1999. Dr Brown found the facts proved but dismissed the charge pursuant to section 556A of the Crimes Act 1990.

9 The Respondent has been unable to locate Inspector Cotton’s record of interview with RT and the recording of the Windsor Local Court hearing is no longer available. Inspector Cotton is on extended leave and he is not available to give evidence.

The issue
10 This case solely concerns the decision of the Respondent not to add notations to its records as requested by the Applicant. The issue for the Tribunal is whether it is the correct and preferable decision to make the notation sought.

Applicable legislation
11 In undertaking a review the role of the Tribunal is to make the correct and preferable decision having regard to the material before it: section 63 Administrative Decision Tribunal Act 1997. It may confirm the original decision, vary it, or set it aside and substitute another decision.

12 Part 4 of the FOI Act deals with the amendment of records. Section 39 deals with the right to apply for an amendment. That section 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.

13 The Respondent accepts that subparagraphs (a) and (b) of section 39 are satisfied.

14 Section 40 of the FOI Act provides:

40 Applications for amendment of agencies’ records

An application for the amendment of an agency’s records:

(a) shall be in writing, and

(b) shall specify that it is made under this Act, and

(c) shall contain such information as is reasonably necessary to enable the agency’s document to which the applicant has been given access to be identified, and

(d) shall specify the respects in which the applicant claims the information contained in the document to be incomplete, incorrect, out of date or misleading, and

(e) if the application specifies that the applicant claims the information contained in the document to be incomplete or out of date--shall be accompanied by such information as the applicant claims is necessary to complete the agency’s records or to bring them up to date, and

(f) shall specify an address in Australia to which notices under this Act should be sent, and

(g) shall be lodged at an office of the agency.

15 Section 43 of the FOI Act allows an agency to refuse to amend its records. Section 44 sets out some of the grounds on which an agency can refuse to amend its records.

16 Section 46 of the FOI Act provides for Notations to be added if an agency has refused to amend its records. Section 46 provides:

46 Notations to be added to records

(1) If an agency has refused to amend its records, the applicant may, by notice in writing lodged at an office of the agency, require the agency to add to those records a notation:

(a) specifying the respects in which the applicant claims the records to be incomplete, incorrect, out of date or misleading, and

(b) if the applicant claims the records to be incomplete or out of date--setting out such information as the applicant claims is necessary to complete the records or to bring them up to date.

(2) An agency shall comply with the requirements of a notice lodged under this section and shall cause written notice of the nature of the notation to be given to the applicant.

(3) If an agency discloses to any person (including any other agency and any Minister) any information contained in the part of its records to which a notice under this section relates, the agency:

(a) shall ensure that there is given to that person, when the information is disclosed, a statement:

(i) stating that the person to whom the information relates claims that the information is incomplete, incorrect, out of date or misleading, and

(ii) setting out particulars of the notation added to its records under this section, and

(b) may include in the statement the reason for the agency’s refusal to amend its records in accordance with the notation.
(4)Nothing in this section is intended to prevent or discourage agencies from giving particulars of a notation added to its records under this section to a person (including any other agency and any Minister) to whom information contained in those records was given before the commencement of this section.

17 Section 51 of the Commonwealth Freedom of Information Act 1982 provides:

Annotations of records etc. following unsuccessful applications for amendments of records

(1) Where an agency or Minister decides not to amend a document or official documents wholly or partly in accordance with an application under section 48, the agency or Minister must:

(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and

(b) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.

(2) Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.

(3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.

18 The Respondent contends that the Applicant has not discharged his onus to justify the making of the further notations to the records.

The onus
19 It is well established that in applications for amendments and notations the Applicant bears the initial or preliminary burden to provide evidence in support of his Application. In Chand v Commissioner of Police, NSW Police [2007] NSWADT 131 Acting Deputy President Handley stated at paragraph [25]:

25 With regard to the burden of proof, notwithstanding that, pursuant to s 61 of the FOI Act, the Commissioner bears the burden of establishing that the determination is justified, the Applicant bears an initial or preliminary burden to provide evidence in support of the application: [Crewdson v Central Sydney Area Health Service [2002] NSWCA 345], at par 32. ...

20 Similar views have been taken in numerous other decisions of this Tribunal.

RT’s case
21 In this case RT has requested that a notation be added to Document E6219863. The application was made pursuant to section 39 of the FOI Act. Section 39 is the enabling section allowing members of the public to seek amendment of personal information provided it is available for use by the agency in connection with its administrative function and if the information is incomplete, incorrect, out of date or misleading. RT identified the material that was to be notated and provided the form of the notation.

22 He contends that pursuant to section 46 of the FOI Act, following a refusal of an agency to amend its record an applicant may lodge a notice with the agency requiring the agency to add a notation to those records. RT’s agent, Mr Pigott submits that pursuant to section 46(2) of the FOI Act the agency "shall comply with the requirements of the notice and shall cause written notice of the notation to be given to the applicant.

23 Mr Pigott submits that section 46 is a mandatory legislative guarantee that an agency shall comply with a notice given under the section. He says that the section does not allow for an agency to interpret the motives behind the notation nor to assess the notation in the terms characterized under section 39(c). He submits that if RT’s application was a section 46 notice, then the Respondent must agree to the whole notation.

24 RT relies on the decision in Neeson v Chief Executive Officer of Centrelink (2006) 154 FCR 489; 92 ALD 77; (2006) FCA 1107, in which the court ruled in relation to the equivalent section of the Commonwealth Freedom of Information Act (section 51(1)). Mr Pigott submits that Neeson is authority for the principle that the obligation is a mandatory one and is not subject to exceptions.

25 RT relies on his own evidence, both written and oral, and statements from Mr Pigott. Mr Pigott has also filed a bundle of articles relating to police attitudes towards sexual activity at "beats".

26 RT stands by his version of events. He denies that he has invented, either intentionally or unintentionally his version of events. He says that the proposed notation records his recollection of events that took place immediately prior to his arrest by Inspector Cotton and his recollection of comments made by the Magistrate at the conclusion of the hearing an 1 June 1999.

27 RT denies that his recollection of the comments made by the Magistrate is inconsistent with the Magistrate finding the offence proven. He says that he was charged with an offence pursuant to section 5 of the Summary Offences Act 1988 and that the finding by the Magistrate was a finding of fact in relation to the elements of the offence. He submits that such a finding does not preclude the Magistrate from making comment as to the methodology used by the Police to obtain their conviction or personal comment about the actions or personality of the arresting police officer. RT makes no comment about the "elements" of the charge and does not seek to challenge the finding of the Magistrate.

28 RT contends that Document E6219863 is incomplete, incorrect, and misleading in a material respect. He submits that Tribunals have held that "incorrect" includes anything that is not in accordance with fact or is erroneous or inaccurate: Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135, Bennett v University of New England, (Unreported 7 August 1991).

29 Information may be misleading where it results from bias, mistake, forgetfulness or other similar reasons: Re Jacobs and Dept of Defence (1988) 15 ALD 645. Misleading means leading astray, causing to go wrong, giving the wrong impression: Re Page and Director-General of Social Security (1984) 6 ALN N171 and Bennett v University of New England.

30 It has been said that "incomplete" means "not entire or not unqualified": Re Page and Director-General of Social Security.

31 RT says that the information in its current form is misleading as it is based on a description of events, which he knows occurred differently. The proposed notation adds balance to the existing statement by Inspector Cotton.

32 RT submits that he has now discharged his initial burden to establish his case for the notations. In particular he contends that he has:
- identified whether the records are incomplete, incorrect, out of date or misleading;
- demonstrated in what respects the records are and remain after the making of some notations, incomplete, incorrect, out of date or misleading;
- identified the basis upon which the proposed notations are complete, correct, up to date and not misleading; and
- provided credible evidence to support the notations sought.

33 He submits that it is simply not enough to merely deny the asserted facts. He says that further notation is required to correct, complete and update the records.

34 RT asserts that the correct and preferable decision would be for the Tribunal to agree to the notations as requested:

The Respondent’s case
35 The Respondent relies on the statement of Senior Sergeant Steven Sheather dated 11 August 2008.

36 Mr Mattson submitted that the issue is whether the particular records are incomplete, incorrect, out of date or misleading in a material respect, and the records only concern recollections of police officers, not complainants. He says that Mr Pigott's evidence should not be considered, as it does not take the matter any higher and it is of no probative value to any issue in these proceedings.

37 The Respondent also objects to the bundle of articles relating to police attitudes towards sexual activity at "beats" as the articles are not and cannot be proof of any fact or matter arising In these proceedings.

38 The Respondent submits that RT has not discharged his onus to justify the making of the further notations to the records. He says that RT must establish that the record without the notation is incomplete, incorrect, out of date or misleading; and the basis for the notation sought and the accuracy of the notation with some evidence to that effect. The Respondent submits that RT has not established those matters.

39 Mr Mattson submitted that there is no evidence or basis established to show that Inspector Cotton's recollection of events is incomplete, incorrect, out of date or misleading. Document E6219863 records accurately what the officer saw, heard or perceived on that day. The fact RT holds a different view of events does not make the officer's own recollection of events as recorded in the documents incomplete, incorrect, out of date or misleading. He says that this is not the forum for RT to challenge Inspector Cotton about an incident already dealt with by the Courts.

40 He further submits that the evidence of RT's views of events are not relevant to any issue in these proceedings. The issue is whether the particular records are incomplete, incorrect, out of date or misleading in a material respect. The records concern a particular officer's record of what they saw, heard or perceived on the particular day. It is that perception and recollection which must be demonstrated as incomplete, incorrect, out of date or misleading in a material respect. It does not matter what RT’s views are about the particular incident. That is not the record.

41 Alternatively, he submits that to the extent that any of the evidence is found to be relevant to an issue in these proceedings, RT's evidence should be read with caution and not readily accepted as evidence of any probative value. He says that the events in question concern an incident on 6 December 1998. Given the time that has past since that incident, there must be doubt as to RT's ability to remember the events in question with the precision now asserted in his statement.

42 Mr Mattson submitted that there is no credible and independent evidence in support the proposed amendment to record RT’s view of events. Nor is there any credible and reliable evidence as to what was said by the Magistrate on 1 June 1999. Further, Mr Mattson submitted that, logically, RT's recollection does not appear to be accurate. He says that the alleged comments by the Magistrate are inconsistent with the Magistrate finding the offence proven but electing, in his discretion, to not proceed to conviction. Further, RT has not produced any record of the alleged comments.

43 He further submits that Document E6219863, as amended by the Respondent, is no longer capable of being said to be incomplete, incorrect, out of date or misleading. He says that as amended, Document E6219863 clearly identifies RT's disagreement with the asserted facts. He says that such an approach is sufficient to deal with RT's concerns especially when there is no evidence in support of the further notations and the notations bear no connection to the purpose of the record.

44 Mr Mattson submitted that the onus to make good the request for the notations has not been discharged and accordingly RT's application ought to be dismissed.

Consideration
45 Document E6219863 records the alleged event as recalled by Inspector Cotton and as denied by the Applicant. It is the Respondent’s record of that recollection.

46 The Respondent relies on a number of authorities to support his submission that any amendment to records must be for the purpose of ensuring that particular records "are not incomplete, incorrect, out of date or misleading". He submits that any proposed amendment must itself be complete, correct, up to date and not misleading. An amendment to correct the record as being incomplete, incorrect, out of date or misleading is not to be used as an opportunity to make other amendments not connected with ensuring the records are not incomplete, incorrect, out of date or misleading.

47 I agree with that submission.

48 If a notation is made, the notation is required to specify the aspects in which the information is incomplete, incorrect, out of date or misleading. An agency is not to be taken as admitting the truth of an applicant's claim every time it annotated a record in accordance with a request: cf Re Mann and Department of Health (ACT) (1994) 37 ALD 266 at 271.

49 I agree with Mr Pigott that section 46 is in mandatory terms and that by an appropriate notice an applicant may require an agency to add to a notation to its records. However, I do not agree that there can be no limitation to the width of the notation.

50 Consideration must be given to the nature and purpose of the record, and any notation must sufficiently correlate with the nature and purpose of the record. A notation cannot go beyond correcting the record. It is clear from the words in section 46(1)(b) of the FOI Act that the notation is intended to complete the records or to bring them up to date.

51 This view is not inconsistent with the approach taken by Jessup J in Neeson v Chief Executive Officer of Centrelink. Section 51 of the Commonwealth Freedom of Information Act provides for annotation of records however, sub-section 51(2) provides that the requirement to annotate the document does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous. In my view, the notation that RT seeks is irrelevant because it does not correlate to the nature of the record and is simply seeking to use section 46 as an avenue to add information not related to the record. The record is not about the judgment or outcome of criminal proceedings but rather an officer's recollection of events. I also agree with Mr Mattson that the notation cannot be used in that manner.

52 I also agree with Mr Mattson that a notation cannot be used to determine disputed issues.

53 In my view, the record as amended is sufficient to complete the record and to bring it up to date. In the circumstances, no further notation is warranted.

54 Accordingly, the correct and preferable decision is that the Respondent’s decision should be affirmed.

Order

The decision under review is affirmed.