Gauci v Commissioner of Police [2010] NSWADT 259 (2 November 2010)

Last Updated: 8 November 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Gauci v Commissioner of Police [2010] NSWADT 259


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Julie Gauci

RESPONDENT
Commissioner of Police, NSW Police Force



FILE NUMBERS:
093290

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
30 July 2010



DATE OF DECISION:
2 November 2010

BEFORE:
Wilson R - Judicial Member





LEGISLATION CITED:
Freedom of Information Act 1989, sections 6(1) and 25(1)(b1)

CASES CITED:
Re Birrell and Victorian Economic Development Corporation (1989) 3 VAR 358
(Re Redfern and University of Canberra (1995) 38 ALD 457; Cheney v Sydney West Area Health Service [2008] NSWADTAP 29
Sawires v Commissioner of Police, NSW Police Force [2010] NSWADT 10

TEXTS CITED:


APPLICATION:
Dismissal of proceedings. Documents available for inspection in accordance with policy. Personal Information contained in documents.

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
J Tillott, Senior Sergeant


ORDERS:
1. The decision under review is set aside
2. The only material surveillance record held by the respondent is that pertaining to the Port Kembla Police Station on 25 March 2009
3. Access to that document is refused as it falls within the provisions of s.25(1)(1b) of the Act and there are no circumstances warranting a discretionary grant of access
4. The surveillance record of the applicant’s presence at Dapto Police Station on 25 March 2009 has been destroyed in good faith and in the ordinary course of the respondent’s procedures and is no longer held by the respondent for the purposes of the Act, and was not so held at any material time.


Reasons for Decision:

REASONS FOR DECISION

1 The applicant commenced these proceedings pursuant to the provisions of the Freedom of Information Act 1989 seeking access to documents to particular documents which had been refused upon internal review under the Act. The respondent in fact granted access to a number of documents pursuant to the initial request for access, but had refused access to certain video surveillance records.

2 On 25 March 2009 the applicant was present at Dapto Police Station, and then later at Port Kembla Police Station, after which she was transported to her residence by police officers. She had earlier been transported from Dapto Police Station to Port Kembla. Both police stations maintained video surveillance of events occurring on the premises at both Police Stations whilst the applicant was present. No video surveillance was conducted whilst the applicant was being transported by police vehicles. The present application is only concerned with access to video surveillance at the two Police Stations and whilst the applicant was being conveyed by Police vehicle. The respondent, from the outset, has accepted that each of these three items fell within the application for access.

3 The video surveillance sought with respect to the applicant’s conveyance by police vehicle may be shortly dealt with. The respondent has asserted by way of submission that a record of such surveillance has never existed, as it is not the practise to record this type of activity by way of video surveillance. The applicant has not contested this point in her own submissions and therefore the respondent’s assertion should be accepted in point of fact without the need for formal evidence. Consequently, the respondent does not hold any records of surveillance whilst the applicant was being conveyed by Police vehicle.

4 The video surveillance conducted at Dapto Police Station was only kept by the respondent for a period of 5 days, after which it was automatically deleted as further surveillance occurred. This was common practise, the consequence of which is that the surveillance record was no longer held by the respondent at the time that the initial application was made under the Act or, at the latest, by the time that the application was duly processed. The respondent acted promptly in reviewing the application. An Agency is under a duty to retain possession of documents the subject of an application under the Act (Re Birrell and Victorian Economic Development Corporation (1989) 3 VAR 358), but there is no breach of that duty where documents are destroyed in accordance with a long standing policy or in good faith in the ordinary course (Re Redfern and University of Canberra (1995) 38 ALD 457). This was the case here in relation to the video surveillance at the Dapto Police Station. Consequently, the records sought were not held by the respondent for the purposes of the initial application for access.

5 The surveillance record made whilst the applicant was present at the Port Kembla Police Station, however, was still held at a material time. This came about because a copy of the record had been sent to the Ombudsman on, or about, 25 March 2009. Presently, the respondent still holds this copy record. At the time of the initial determination, the respondent was unaware that a copy of the record was with the Ombudsman and therefore a decision was made that no surveillance records had been kept. This was in error as the copy record in the possession of the Ombudsman was a document to which the respondent had an immediate right of access. This error however was corrected on internal review.

6 A determination upon internal review was made by the respondent on 01 September 2009 whereby access to the documents sought by the applicant was refused on two grounds: first that access would involve an unreasonable disclosure of another’s personal affairs (s.6(1) Schedule 1 of the Act), and secondly, that the documents sought were otherwise available for inspection within s.25(1)(1b) of the Act. In relation to the latter ground, the determination on internal review advised the applicant that she could arrange for such alternative access pursuant to the respondent’s policy to grant access in such cases. The respondent has, since the internal review decision, remained willing to grant such access. The Tribunal notes that the determination on internal review was formulated upon the assumption that video surveillance conducted at the Dapto Police Station was still held by the respondent at that point in time. This assumption, as the evidence now shows, was incorrect. However, this is not material save that it requires correction in the Tribunal’s orders.

7 The present concern therefore is only in relation to the record of video surveillance conducted at the Port Kembla Police Station at the material time. It is only this record which is held by the respondent. Clearly, this record falls within s.25(1)(1b) of the Act and the decision under review to refuse access by reason of the document’s availability for inspection as provided in that section was correct. Consequently, the decision under review should be affirmed to that extent, there being no particular circumstances giving rise to the Tribunal’s residual discretion to grant access. The Tribunal notes that during interlocutory stages the respondent repeatedly renewed its offer to grant access to the document pursuant to its policy in such cases.

8 Given this finding, there is no real need to consider the claim based upon unreasonable disclosure of the personal affairs of another. It would not be appropriate to consider this issue here as the evidence does not address this issue in any detail.

9 There remains the question of the appropriate orders to make. The respondent’s approach here was to argue that the proceedings ought to be dismissed for want of jurisdiction, following the decisions in Cheney v Sydney West Area Health Service [2008] NSWADTAP 29 and Sawires v Commissioner of Police, NSW Police Force [2010] NSWADT 10). These two authorities clearly establish that the Tribunal has no jurisdiction to review a decision made under s.27 of the Act as to the form of access. However this is not quite the case here as the applicant was in fact refused access, a decision over which the Tribunal does have jurisdiction. The dispute between the parties in these proceedings concerned whether access should be given under the Act, rather than as to the form of access simpliciter. Therefore the better view is that the Tribunal does have jurisdiction but, in the circumstances, the correct and preferable decision is to set aside the decision under review and substitute a decision in lieu thereof, in accordance with these reasons.

10 Accordingly, the decision under review is set aside and in substitution the Tribunal determines that the only surveillance record held by the respondent is that in relation to the Port Kembla Police Station and by reason of the application of s.25(1)(1b) of the Act, access is refused under the Act. The Tribunal will so order.