Eloss v Commissioner of Police, New South Wales Police Force [2009] NSWCA 3 | Case summary

Court of Appeal (NSW)|2010-11-17

Introduction 1The applicant, Mr Ahmed Eloss, has sought review of a decision of a delegate of the respondent, the Commissioner of Police, to refuse him access to documents he had sought access to under the provisions of the Freedom of Information Act 1989 (the FOI Act). 2The documents Mr Eloss had sought access to concerned an incident that occurred, on the evening of 1 September 2007, between himself and the police. On the evening in question, police officers, while conducting stationary random breath testing on King Georges Road, stopped Mr Eloss' car and another car. Police stopped them as they believed the two cars were 'street racing.' Mt Eloss was driving his car and he and the driver of the other car pulled over as directed. After Mr Eloss stopped, one of the police officers, Constable Rider, approached Mr Eloss who remained sitting in his car. Mr Eloss asserts that Constable Rider hit his car with a breathalyser and damaged the bonnet of his car. He also asserted that Constable Rider had hit him in the jaw. Mr Eloss asserts that he immediately complained about what had happened. It would appear that a few days later Mr Eloss and the driver of the other vehicle were charged with an offence of 'street racing'. They were served with a Court Attendance Notice and when the matter came before the Local Court Mr Eloss pleaded not guilty to the offence charged. A police brief of evidence was prepared, but not served on Mr Eloss as the police subsequently withdrew the charge. Mr Eloss however, pleaded guilty to an offence of speeding. 3Constable Rider's supervisor investigated Mr Eloss' complaint about Constable Rider's alleged misconduct. Mr Eloss and others were interviewed on 6 September 2009 in regard to the complaint. On 30 October 2009, Mr Eloss was advised that the Director of Public Prosecutions had determined that there was insufficient evidence to sustain his complaint of assault and malicious damage. In December 2009, Mr Eloss' solicitor sought a more detailed explanation about the investigation and findings in regard to his complaint. It would appear the respondent replied by suggesting Mr Eloss make a request under the FOI Act for this information. He made such a request and this application for review arises from that request. 4The respondent failed to make a determination, within the time prescribed in the FOI Act, so Mr Eloss sought internal review under section 34 of the Act, as he was entitled to do. On this occasion the respondent identified a number of documents, including the police in- car-video recording of the 1 September 2007 incident (the ICV recording). The respondent determined to grant Mr Eloss access to a number of the documents that had been identified as falling within his FOI request (some documents were provided in full and others were provided in part). The respondent refused to give Mr Eloss access to the remaining documents, including the ICV recording. It was this decision for which Mr Eloss sought review. 5In accordance with the Tribunal's procedures for dealing with applications for review of decisions under the FOI Act, Mr Eloss' application came before me at a number planning meetings. During these meetings, the respondent agreed that a number of the documents in dispute should be made available to Mr Eloss. On each occasion, by consent, I made orders setting aside the decision of the respondent in regard to these documents and in substitution thereof I made a decision that Mr Eloss be granted access to the documents in question. The matter was then listed for hearing in regard to the remaining documents in issue, including the ICV recording. 6At the commencement of the hearing, I was informed by the solicitor for the respondent that the respondent had agreed that Mr Eloss be granted access to some additional documents and that the only document remaining in issue was the ICV recording. By consent, I again made orders in respect to those documents the respondent had agreed access should be granted and the hearing was limited to the question as to whether the respondent's decision to refuse Mr Eloss access to the ICV recording was the correct and preferred decision (see section 63 of the Administrative Decisions Tribunal Act 1997).

The relevant legislation 7In refusing Mr Eloss access to the ICV recording, the respondent had relied on the grounds for refusal set out in paragraph 25(1)(b1) of the FOI Act. This paragraph provides as follows: 25 Refusal of access (1)An agency may refuse access to a document: (a) ... (a1) ... (b) ... (b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency's policies and practices. 8Unlike other merit review applications, where there is no onus of proof on either party to establish that the decision the subject of review is either correct or incorrect, section 61 of the FOI Act places the burden on an agency (in this application the respondent Commissioner) to establish that its determination is justified.

The evidence 9It is not disputed that the ICV recording is held at the Hurstville Police Station and Mr Eloss has an ongoing right to access and view this recording, without charge, at any time that is mutually convenient to him and the police. Mr Eloss has in fact viewed the ICV recording. However, Mr Eloss is not satisfied with this arrangement and wishes to have a copy of the ICV recording provided to him so that he has a better understanding why a decision was made not to action his complaint. There does not appear to be any dispute that the ICV recording captured the altercation between Constable Rider and Mr Eloss. 10In support of its decision to refuse Mr Eloss access to the ICV recording, the respondent relied on a statement of evidence made by Inspector Lipman, Commander of the Traffic Services Branch of the respondent. 11In his statement, Inspector Lipman explained that his duties include the maintenance, purchase and evaluation of traffic-related electronic equipment used by the NSW Police Force, including ICV systems. 12He said the ICV system was introduced for use by 'highway patrol officers to assist in safely stopping motor vehicles and recording their interaction with drivers.' He explained that the system is used in accordance with the NSW Police Force's ' In Car Video Master Standard Operating Procedures' (SOP), which had been prepared with his assistance. 13Inspector Lipman summarised the standard practice of police when using the ICV system in the 'traffic patrol' context. These included the following: (a) Police officers will turn on the ICV system, in order to record audio and visual footage, when they are pursuing or otherwise following a vehicle with the intention of stopping or detaining that vehicle; (b) After the vehicle is stopped, the police officer's discussion with the driver is captured by the ICV system. It is standard operating procedure for police officers to turn off the ICV system only when the driver has driven away. (c) If a police officer decides to issue an infringement notice to the driver, and the driver asks to view the event, he or she informs the driver at the that time that the driver may view the ICV footage free of charge at the driver's local police station, by mutual arrangement (d) Also. At the time an infringement notice is issued, the police officer normally gives to the driver a "Request for Viewing" at the time. (e) .... 14Inspector Lipman went on to explain how ICV recordings are downloaded and stored by NSW Police. He said copies of the ICV recording could be created for viewing on ordinary computers. However, at the time the ICV system was introduced 'a general policy was adopted not to release copies of ICV footage to drivers. He said that this was because: '...because the NSWPF cannot control subsequent use or publication of the ICV footage by drivers. For example, I have seen America ICV footage of drivers downloaded onto video-sharing websites such as "YouTube", which may be viewed by members of the public. The NSWPF was concerned that downloading such footage could encourage certain sections of the community to deliberately flout the law and enjoy some notoriety in doing so. Alternatively, such footage might be sold for entertainment purposes. I have viewed American ICV footage that has been downloaded onto YouTube it is well understood in the policing community that the publication of ICV footage can undermine police attempts to prevent speeding and other traffic offences. For this reason, the NSWPF implemented the policy that no driver would be provided with a copy of his or her ICV footage.' 15Inspector Lipman said that it was also accepted that members of the public may have an interest in viewing the footage, or it may be sought pursuant to the FOI Act and in order to accommodate this it was decided that drivers would be given access to inspect and view their ICV footage at their local police station, free of charge. 16In support of his evidence, Inspector Lipman attached a small selection of pages from the SOP, which deal with the viewing of ICV recordings and the release thereof. 17Pages 77 to 83 of the SOP deals with 'ICV Recorded Media Files.' Page 77 deals with the viewing of ICV recordings by police. Viewing is restricted to the highway patrol officers responsible for the recording, highway patrol supervisors and other senior police officers. The procedure that is to be followed for such viewing is also set out in the SOP. 18Page 78 deals with the viewing of ICV recordings by 'accused person and/or legal representative'. This procedure is stated to apply to requests from 'an accused person and/or his/her legal representative who has an ICV card (issued at the completion of the vehicle stop) detailing the ICV recorded media file number, time and date or a Traffic Infringement Notice detailing an ICV recorded media file number.' Under this procedure, it is the highway patrol supervisor at the police station where the request is made, who is required to ascertain whether the ICV recording is on the local server for that station. If it is not found on the local server, the highway patrol supervisor is required to request a copy of the ICV recording on a DVD from the location where it is stored. The procedures then provide that once the ICV recording has been located or obtained on DVD, the accused or his legal representative are to be shown the ICV recording 'at a mutually agreeable time.' However, the SOP notes, in bold type, 'the number of occasions the media is viewed should be limited so as not to impede on the operational duties of the HWP officer or supervisor.' 19Pages 80 to 83 of the SOP deals with the procedures for the provision of a brief of evidence for the prosecution of traffic and driving offence arising from police having issued a penalty notice, a criminal infringement notice, or police having sought the issue of a Court Attendance Notice by the Local Court. 20It is only in the latter case, where a Court Attendance Notice has been issued, and the accused person pleads not guilty to the traffic or driving offence the subject of the Notice, that police must prepare a brief of evidence. A copy of that brief must be provided to the person to whom the Notice is issued and the brief of evidence is required to include a copy of any ICV footage relevant to the offence of which the person is charged. 21Page 95 and 96 of the SOP, deals with 'Other Situations for Release' of a copy of ICV recordings, including requests made pursuant to the FOI Act. The SOP provides that all such requests must be directed to the Coordinator, Freedom of Information Section, Compliance Law Division, Legal Services. The SOP goes on to state the following: 'Under Part 3, Section 25 of the Freedom of Information Act 1989 Number 5 an Extract is outlined below, a copy of a recorded media file will NOT be provided to person/s outside NSW Police except where a court order has been issued. The NSW Police policy of "free to view" recorded media files at HWP Offices permits an exemption under FOI (see below).' 22The SOP then recites section 25 of the FOI Act in full, with paragraph 25(1)(b1) highlighted in bold type.

Consideration 23The respondent contended that Mr Eloss' request for the ICV recording of the incident on 1 September 2009, fell within the terms of the exemption contained in paragraph 25(1)(b1) of the FOI Act. In support of this contention it relied on the decision of the Tribunal in Johnston v Commissioner of Police, NSW Police Force [2009] NSWADT 181, where Judicial Member Pearson found, at [29], that even though under the SOP 'access was restricted to those with legitimate interest in viewing the footage, namely the individual concerned or their legal representative and does not extend to the public at large' it was a policy and practice of the respondent that fell within the terms of paragraph 25(1)(b1) of the FOI Act. That is, on the basis of the decision in Johnston, the ICV recording of Mr Eloss was a document that was available from the respondent, free of charge, in accordance with the policies and practices as set out in the SOP. 24The solicitor acting on behalf of Mr Eloss contended that the circumstances giving rise to the ICV recording of Mr Eloss differed substantially to those that applied in Johnston . He also appears to question the finding of Judicial Member Pearson that the SOP, in so far as it provides for 'free to view' ICV recordings, is a policy or procedure falling within paragraph 25(1)(b1) of the FOI Act. Mr Eloss' solicitor contended that even if Judicial Member Pearson's finding found to be correct, the circumstances of this application warranted the exercise of the Tribunal's discretion as described in the decision of Nicholas J in University of New South Wales v McGuirk [2006] NSWSC 1362 at [102].

Do the circumstances of the ICV recording of Mr Eloss fall within the SOP? 25I agree with the finding of Judicial Member Pearson in Johnston that the SOP 'free to view' ICV policy is a policy falling within paragraph 25(1)(b1) of the FOI Act. However, an ICV recording will only be exempt under this paragraph where it is a recording (i.e. a document) to which the policy applies. The facts, as recited in the decision of Johnston , satisfied these requirements as Mr Johnstone appears to have been stopped by police after they had followed him for some time and he was issued with a traffic infringement notice. Mr Johnston asserted he had not been given an ICV card, but his main concerns related to what he saw as being delays by police in facilitating a view. 26As mentioned above, the 'free to view' ICV recordings policy only applies where an 'accused person' has been given an ICV Card, or issued with a Traffic Infringement Notice. There is no evidence before the Tribunal that Mr Eloss was given an ICV Card or issued with a Traffic Infringement Notice. Inspector Lipman does not give any evidence about the circumstances in which the ICV recording was made of Mr Eloss. I can only assume from his statement that he has never looked at the ICV recording or the information that is held in regard to the circumstances in which it was made. There is no dispute that police stopped Mr Eloss while they were conducting stationary random breath testing. That is, he was not being pursued or otherwise followed by police prior to being stopped. It was Inspector Lipman's evidence that it was in such circumstances where the SOP provided that a highway patrol officer will activate the ICV system and it is not turned off until after the driver of the vehicle has been spoken to and allowed to drive off again. There was no evidence before the Tribunal that the SOP made provision for the ICV system to be activated in circumstances where police are conducting stationary random breath testing. It may do so, but no evidence of this was provided. 27On the assumption that the ICV recording of Mr Eloss was made in accordance with the practices set out in the SOP, the uncontested evidence is that Mr Eloss was issued with a Court Attendance Notice and that, in accordance with the SOP policy for such circumstances, a brief of evidence was prepared in order to prosecute Mr Eloss for the offence charged as specified in the Notice. That brief of evidence included a copy of the ICV recording of Mr Eloss. In my view, the fact that the prosecution of this charge was not pursued and Mr Eloss pleaded guilty to an offence of speeding does not mean that the SOP 'free to view' ICV recording policy applies so as to refuse Mr Eloss access on the grounds of paragraph 25(1)(b1) of the FOI Act. It is my understanding from the submissions filed by the solicitor for Mr Eloss that the ICV recording does not record Mr Eloss speeding in his car. However, as stated above it does record the interchange between Mr Eloss and Constable Rider, which was the subject of Mr Eloss' complaint. The ICV recording, I note from the submissions of the solicitor of the respondent, was used in the course of the investigation of Mr Eloss' complaint, which appears to have been conducted concurrently with the prosecution of the 'street racing' charge that had been made against him. 28On the basis of my findings that the respondent has failed to establish that the ICV recording of Mr Eloss falls within the SOP 'free to view' ICV recording policy, I find that the respondent's determination that Mr Eloss be refused access to the ICV recording in question on the grounds set out in paragraph 25(1)(b1) of the FOI Act is not justified. 29In making my findings, I would stress that these have been made on the basis of the particular facts in this application. They do not in any way alter the decision of Judicial Member Pearson in Johnston that the SOP 'free to view' ICV recordings policy and practices is a policy and practice for the purpose of paragraph 25(1)(b1) of the FOI Act, where a person makes a request, under that Act, for access to the recording. The policy and practices also apply even where the person has requested access other than under the FOI Act.

The residual discretion 30In the event I am wrong in my findings, I have also considered the issue as to whether the residual discretion, as described in University of New South Wales v McGuirk (supra), applies and if it does apply whether it should be exercised in this application. 31In University of New South Wales v McGuirk (supra), Nicholas J held that section 63 of the Administrative Decisions Tribunal Act 1997 provides the Tribunal with a discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferred decision with regard to the material then before it. 32The Court of Appeal has held that this residual discretion does not apply where a document is exempt under clause 10 on the grounds of legal professional privilege: see McGuirk v University of NSW [2009] NSWCA 3. Other than documents falling within this category, the Court of Appeal did not overturn the decision of Nicholas J. 33The Tribunal has stated on a number of occasions that the residual discretion must be exercised only where there are strong grounds justifying the overriding of the exemption: see University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 at [8] and [9] and Cianfrano v Director General, Premier's Department [2007] NSWADT 216 at [24]. That is, there must be sufficient reason to displace the assumption that the exemption is reasonably necessary for the proper administration of Government (see paragraph 5(2)(b) of the FOI Act). 34In my view, on the particular facts of this application, the circumstances in which the ICV recording of Mr Eloss was taken and subsequently used, this is a case where it is appropriate to exercise the residual discretion. As I have mentioned, the recording evidences Mr Eloss' complaint about the conduct of Constable Rider. I note Mr Eloss has been granted access to numerous documents relating to the investigation of his complaint. Had the ICV recording been in photograph form it is difficult to envisage a basis on which access would have been refused. The fact that the respondent did not rely on any other ground on which the recording was exempt supports such a conclusion.

Conclusion 35For the reasons stated above, I find that the decision of the respondent is not the correct and preferred decision. Accordingly, the appropriate order is: - The decision of the respondent to refuse Mr Eloss access to the ICV recording is set aside and in substitution thereof a decision that Mr Eloss be granted access to the ICV recording the subject of this application.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2011

Eloss v Commissioner of Police, New South Wales Police Force

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