Olivieri v NSW Police Force

Supreme Court of NSW|2010-08-14|Before: Molony P, Hidden J

CITATION: Olivieri v NSW Police Force [2010] NSWADT 299 This decision has been amended. Please see the end of the decision for a list of the amendments.

APPLICANT Tony Olivieri PARTIES: RESPONDENT NSW Police Force

CATCHWORDS: Freedom of Information Act - Access to documents - law enforcement & public safety - substantial and unreasonable diversion of agency's resources

LEGISLATION CITED : Freedom of Information Act 1989 Government Information (Public Access) Act 2009 Administrative Decisions Tribunal Act 1997

Attorney-General's Department v Cockcroft (1986) 64 ALR 97 Cianfrano v Premier's Department [2006] NSWADT 137 Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 CASES CITED: Dunstan v Department of Corrective Services [2004] NSWADT 177 IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 R v Olivieri; R v Norman [2006] NSWSC 882

APPLICANT In person REPRESENTATION: RESPONDENT A Johnson, solicitor

(1) Affirm the decision of the Agency made on 12 May 2010 with respect to points 2, 7 and 8 ORDERS: (2) Set aside the decision of the Agency made on 12 May 2010 with respect to point 5, and in its place to determine that the document is not held by the Agency (3) Order that paragraphs 39 to 41 of these reasons, inclusive, not be disclosed to Mr Olivieri, his representatives, or to the public, and that those paragraphs not be published (4) Order that the confidential statement of Mr Downie not be disclosed to Mr Olivieri, his representatives, or to the public.

1 On 1 April 2009 Mr Olivieri made a request to the NSW Police Force for information under the Freedom of Information Act 1989 (the FOIA).

2 Mr Olivieri is presently serving a sentence of imprisonment for the murder of Thomas Williams in April 2004. He was convicted and sentenced to 33 years imprisonment. The case against Mr Olivieri was that he had been engaged by his co-accused to kill Mr Williams, and had done so by entering the deceased's office and shooting him four times.

3 The Police Investigation into the murder was called Operation Burkitt. It was lead by detective Senior Constable Downie. Details of the investigation including the investigation log, emails, reports etc, were recorded using an investigative database system - Eaglei.

4 Among the evidence admitted against Mr Olivieri at his trial were a number of telephone intercepts of mobile phone conversation to which Mr Olivieri was party. In his decision ruling on the admissibility those intercepts in R v Olivieri; R v Norman [2006] NSWSC 882, Hidden J, at [3] -[8], set out the circumstances in which those phone calls were intercepted - "3 All the calls were made after the publication of an article about the shooting of the deceased in the Sydney Daily Telegraph on 10 June 2004. That article followed a press release by the police, together with the release of an image said to be that of a man seen acting suspiciously in the area near the deceased's home at the relevant time. The clear implication of the press release, and of the article, was that that man was suspected to have been the gunman. I received the press release, the article, and an article to the same effect in the Sydney Morning Herald of 11 June 2004, as exhibit G on the voir dire.

4 After the shooting the deceased's widow had helped police compile a COMFIT image and a FACE image of the gunman, whom she had seen running from the office where her husband had been shot. The image released by the police for publication on 10 June was neither of those. It was a photograph of Mr Olivieri, modified to give the appearance of a computer generated image. What the newspaper articles conveyed to the reader was that that image had been able to be compiled by a witness or witnesses who had seen such a man in the area at the time of the shooting.

5 This was false, to the knowledge of the investigating police. It was a subterfuge for which they sought and obtained authority under s 8 of the Law Enforcement (Controlled Operations) Act 1997. I received a copy of that authority as exhibit F on the voir dire. Telephone intercepts on the mobile phones of Mr Olivieri and his co-accused, Mr Norman, were in place before the issue of the press release. The purpose of the subterfuge, no doubt, was to engender phone conversations in which the accused made statements implicating themselves in the murder.

6 On 10 June Mr Olivieri, then in Queensland, had two telephone conversations with a friend, Ray Johnson, in Sydney: calls D and E of exhibit CC. Mr Johnson told him about the Telegraph article and, in particular, of the publication of an image bearing a startling resemblance to him. Mr Olivieri expressed concern a number of times about this development, even saying (in call E) that he thought that he was "gone". Later that same day there was a call between the two accused (call F), in which the matter was discussed and Mr Olivieri said that he would "have to go away for a while ...".

7 The remaining calls were made over the period of about two weeks thereafter. There is no need to refer to each of them. They contain further references to the newspaper article and disclose a continuing interest in the development of the investigation into the murder. Mr Olivieri on several occasions asserted that he was in Queensland at the time of the shooting, and he and Mr Norman discussed witnesses who might have given evidence to that effect. However, he also expressed concern that police who searched the property in Queensland where he had been living might find items from a motel in Sydney at which he had been staying at the time of the shooting.

8 Put briefly, the Crown Prosecutor relied on the calls as evidence of knowledge on the part of Mr Olivieri of the murder such as to suggest that he was involved in it, and a concern about the newspaper article and the continuing police investigation born of a fear that his involvement might be detected…"

5 By letter dated 1 April 2009, Mr Olivieri sought access to: Point 1 - The four colour photos of the person NSW Police allege was Mr Olivieri at Roma Street Railway Station, Brisbane on 11 June 2004. Point 2 - A copy of phone records of incoming and outgoing calls for a nominated mobile number between 9 June 2004 and 25 June 2004. Point 3 - A copy of the list of phone numbers with names and addresses that police took from Thomas Williams as mentioned in Detective Senior Constable Downie's statement dated 7 July 2006 which alleges that my phone number was in that list, and Point 4 - A copy of Christopher Shame's statement taken on 30 April 2004 by Detective Senior Constable Downie. 6 In an application under the FOIA dated 1 April 2009, but received on 21 April 2009, Mr Olivieri sought access to the following documents: Point 5 - Copy of Community Source and Police Informer Statement that lead to controlled operation certificate in operation Burkitt. Point 6 - Copy of Sharon Toms' statement. Point 7 - Complete an entire case file from Eeaglei police database for operation Burkitt. Point 8 - Copy of incoming and outgoing phone call records for six specified phone numbers.

7 It is not clear whether both requests were sent to the Police at the same time but they were amalgamated and treated as one. On 9 July 2009 the Agency determined Mr Olivieri's FOI application by refusing Mr Olivieri access to all the documents he sought for specified reasons. With respect to documents described in points 1, 4 and 6, the decision advised that those documents could not be located the determination was made that the Agency did not hold the documents. This determination was made well outside the 21 day time frame specified by s 24(2).

8 On 10 August 2009 Mr Olivieri sought an internal review. On 18 August 2009 the decision to refuse Mr Olivieri was confirmed on the same grounds.

9 On 6 October 2009 Mr Olivieri lodged an application to review that decision in this Tribunal.

10 At a planning meeting held on 10 November 2009 I made the following directions- 1. I note that the Applicant: (a) does not wish to pursue his FOI request as it relates to: (i) Point 3, insofar as it relates to phone numbers and addresses.

(iii) Point 8, save for a record of incoming calls for [phone number] for the period between 1603 on 6/5/04 and 1222 on 8/4/04 (b) seeks clarification as to documents with [respect to] which exemption is claimed in respect of point 4 of his request is in fact a statement dated 29 April 2004, in which case he has indicated pursue his case in relation to that document. (c) limits his request in Point 7 to information relating to him and specifically does not seek information which would disclose Police procedures or methods. 2. I also note that I have explained to the Applicant that the Tribunal does not have a sufficiency of search jurisdiction. 3. By consent the decision under review is remitted to the Commissioner for reconsideration, such reconsideration to be completed by 13 January 2010. 4. The application is otherwise listed for a further planning meeting on 21 January 2010 at 2pm.

11 At the planning meeting on 21 January 2010 the reconsideration had not been completed. I extended time for its completion to 23 March 2010.

12 Ultimately that further internal review was completed on 12 May 2010. It determined Mr Olivieri's application as follow - Point 1 - The four colour photos of the person NSW Police allege was Mr Olivieri at Roma Street Railway Station, Brisbane on 11 June 2004. Released in full. Point 2 - A copy of phone records of incoming and outgoing calls for a nominated mobile number between 9 June 2004 and 25 June 2004. Exempt under clause 6(1) - the personal affairs exemption. Point 3 - A copy of the list of phone numbers with names and addresses that police took from Thomas Williams as mentioned in Detective Senior Constable Downie's statement dated 7 July 2006 which alleges that my phone number was in that list. Partially released with deletions of exempt material under clause 6(1) - the personal affairs exemption. Point 4 - A copy of Christopher Shame's statement taken on 30 April 2004 by Detective Senior Constable Downie. The Agency does not hold the document - s 28(1)(b). Point 5 - Copy of Community Source and Police Informer Statement that lead to controlled operation certificate in operation Burkitt. Exempt in full -under clause 6(1) - the personal affairs exemption - and under clause 4(1)(b) and (e) - disclosure would enable the existence or identity of a confidential Police source to be ascertained and prejudice the effectiveness of lawful investigative procedures. Point 6 - Copy of Sharon Toms' statement. The Agency does not hold the document - s 28(1)(b). Point 7 - Complete and entire case file from Eeaglei police database for operation Burkitt. Refused in full - s 25(1)(a1) - unreasonably diversion of the agency's resources Point 8 - Copy of incoming and outgoing phone call records for six specified phone numbers. Exempt under clause 6(1) - the personal affairs exemption.

13 At a planning meeting held on 13 May 2010 it was agreed that only points 2, 5, 7 and 8 remained in issue. It was also agreed that after the parties has been given appropriate time to file and serve evidence and submissions this issues should be determined on the papers. I made directions accordingly.

14 The parties have since filed evidence and submissions in accordance with those directions and the matter has been referred to me for a decision on the papers. I remain of the view that the issues for determination can be adequately determined on the papers in accordance with s 76 of the Administrative Decisions Tribunal Act 1997.

15 In making this determination I have had regard to the following material filed by the Agency - -Mr Olivieri's FOI application and letter each dated 1 April 2009 -The Agency's original FOI determination made 9 July 2009 -Mr Olivieri's application for internal review dated 25 July 2009 -The Agency's internal review decision made 18 August 2010. -Further internal review decision dated 12 May 2010. -Statement of Detective Senior Constable Bryan Downie dated 29 July 2010. -Confidential statement of Senior Constable Bryan Downie.

16 Mr Olvieri provided the Tribunal with an outline of his submissions in a letter dated 27 August 2010.

Issues for determination 17 In making its submissions the Agency has relied on different exemptions with respect to a number of points that those relied on previously. The issues for determination is this case now relate to: -Whether the copy of phone records of incoming and outgoing calls for a nominated mobile number between 9 June 2004 and 25 June 2004 in point 2 of Mr Olivieri's request are exempt under clause 4(1)(b) and (c) of Schedule 1. These provide: -Whether the Community Source and Police Informer Statement that lead to controlled operation certificate in operation Burkitt in point 5 is exempt in full under clause 6(1) - the personal affairs exemption - and under clause 4(1)(b),(c) and (e). -Whether provision of the complete and entire case file from the Eeaglei police database for operation Burkitt in point 7 would constitute an unreasonable diversion of resources under s 25(1)(ai). -Whether the incoming and outgoing phone call records for the specified phone number in point 8 is exempt under clause 6(1) and clause 4(1)(b) and (c)

18 Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Section 61 of the Freedom of Information Act 1989 provides that the burden of establishing that a determination is justified lies on the agency.

19 When considering reviews under the Freedom of Information Act 1989 s 55 instructs that - In determining a review application, the Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and (b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative.

20 By claiming exemption for the documents in points 2, 5 and 8 under clause 4 of Schedule 1 the Agency is claiming that the documents are restricted documents. Part 1 of Schedule 1 - clauses 1 to 4A - relates to restricted documents (see the definition of restricted document in s 4).

21 Section 57 makes specific provisions with respect to the consideration of restricted documents. It provides: '(1) The Tribunal may, on the application of the review applicant, consider the grounds on which it is claimed that a document is a restricted document, but only if the document is not subject to a Ministerial certificate. (2) In any proceedings under this section, the Tribunal is, on the application of the Minister administering this Act, or the agency or Minister concerned, to receive evidence and hear argument in the absence of: (a) the public, and (b) the review applicant, and (c) if in the opinion of the Tribunal it is necessary to do so to prevent the disclosure of any exempt matter the review applicant's representative. (3) If the Tribunal is not satisfied, by evidence on affidavit or otherwise, that there are reasonable grounds for the claim, it may require the document to be produced in evidence before it. (4) If, after considering any document produced before it, the Tribunal is still not satisfied that there are reasonable grounds for the claim, the Tribunal is to reject the claim when determining the review application. (5) The Tribunal is not to reject the claim unless it has given the Minister administering this Act a reasonable opportunity to appear and be heard in relation to the matter. (6) For the purposes of any proceedings under this section, the Minister administering this Act is a party to the proceedings.'

22 In this case, there is no Ministerial certificate to which ss (1) apples. The Tribunal is therefore free to consider the grounds on which the claims of exemption are made.

23 The Tribunal's role when carrying that task was clarified by the Appeal Panel in IPART v Services Sydney Pty Ltd (GD) [2008] NSWADTAP 79. In such circumstances s 57 requires that the Tribunal determine whether it is satisfied that there are 'reasonable grounds for the claim' of exemption. If so satisfied, the Tribunal's inquiry is to go no further. If not so satisfied, after considering the document, the Tribunal is to reject the claim. As the Appeal Panel pointed out in IPART (at [42]) this procedure does 'not permit the Tribunal to engage in full merits review.' As a result there is 'no scope' for the Tribunal to exercise its residual discretion with respect to such reviews: IPART at [46].

24 The Appeal Panel in IPART followed the decision of the High Court in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423. There the High Court considered the role of the Commonwealth AAT when reviewing a Ministerial Certificate to the effect that disclosure would be against the public interest. Section 58(5) under the Freedom of Information Act 1982 (Cth) provided that the Tribunal was to determine 'whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.' Hayne J, said, at [55]: '…Its task is to answer the statutory question: are there reasonable grounds for the claim that disclosure would be contrary to the public interest?'

25 At [63] he said: 'In deciding whether reasonable grounds exist for a claim, the Tribunal must take account of any relevant evidence that has been adduced and of any relevant arguments that have been advanced. It must consider the particular claim that has been made and that will require consideration (and commonly the examination) of the particular documents that are in question.'

26 Heydon and Callinan JJ agreed. At [131] they said: '…. It does follow, as the majority in the Full Court effectively held, that if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review. It is important to notice that the statutory language does not give an entitlement to access if there are, as often there may very well be, reasonable grounds for the revelation of the document in the public interest. It further follows that the Tribunal is not obliged to undertake a balancing exercise of the kind the appellant submits it was bound to do. The role of the Tribunal in the circumstances of, and on the basis of the statutory language governing this case, is not to undertake a full merits review of the kind contemplated by s 43(1) of the AAT Act. Whether therefore, the only practical and real means of attacking a conclusive certificate will be by demonstrating that there are no reasonable grounds in fact, or that the grounds relied on are so unreasonable that no reasonable person could hold the opinions upon which they are based, does not arise for decision in this appeal.'

27 That burden requires the agency to establish that there are reasonable grounds for the claim that the documents in question are exempt.

28 The exemptions claimed are those found in clause 4(1)(b),(c) and (e) of Schedule 1. Relevantly that clause provides - 4 Documents affecting law enforcement and public safety (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: (a) … (b) to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, or (c) to endanger the life or physical safety of any person, or (d) … (e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or (f) … (2) A document is not an exempt document by virtue of subclause (1): (a) if it merely consists of: (i) a document revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law, or (ii) a document containing a general outline of the structure of a programme adopted by an agency for dealing with any contravention or possible contravention of the law, or (iii) a report on the degree of success achieved in any programme adopted by an agency for dealing with any contravention or possible contravention of the law, or (iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law), or (v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation, and (b) if disclosure of the document would, on balance, be in the public interest. (3) …4 (4) In this clause, a reference to the law includes a reference to the law of the Commonwealth, the law of another State and the law of another country.

29 In the case of the documents to which points 2, 5 and 8 relate the Agency relies on Mr Downie's open and confidential statements. It sought to rely on s 57(2) and s 55(b) of the Freedom of Information Act 1989 and s 75(2)(a) of the Administrative Decisions Tribunal Act 1997 to secure the admission of Mr Downie's confidential statement on a confidential basis, without the contents being disclosed to Mr Olivieri or the public.

30 My view is that s 57(2) requires that I consider the confidential evidence relied on by the Agency without disclosing it to Mr Olivieri in order to determine whether or not there are reasonable grounds for the exemptions claimed. Section 55(a) makes it clear that I have the power to do so. Section 75(2) of the Administrative Decisions Tribunal Act 1997 provides the Tribunal with additional powers to hear confidential evidence, which I think necessary in this case, and provides powers sufficient to ensure that confidentiality is maintained, such as restrictions in publication, the exclusion of the public and others.

31 With that understanding of the relevant law I turn to consider points 2, 5 and 8.

32 Point 2 seeks copies of phone records for incoming and outgoing calls for a nominated mobile number between 9 June 2004 and 25 June 2004.

33 In his open affidavit Mr Downie says this relates to a stolen telephone that Mr Olivieri was using and which was the subject of a telephone intercept. He said that the Police do not hold a log of such calls made from this number "because the telephone intercept was in place and the Police were already monitoring the telephone calls being made." I have difficulty understanding this as logic suggests that if the Police were monitoring calls, they would have a record of them. While they may not have a log of calls made, they would have details of calls made and received.

34 In any case Mr Downie says that if there were such a log it would disclose the telephone number (and lead to the identity) of all persons Mr Olivieri called during this period, which covers the period before and after Mr Olivieri's altered photograph was released to the press, as a subterfuge sanction under the Law Enforcement (Controlled Operations) Act 1997.This would include calls not relied on at Mr Olivieri's trial. While not disclosing whether or not there was a confidential source, Mr Downie says that, if there were such a source, the release of the information to attempt to deduce who it was. His concern is that Mr Olivieri might then take or organise retribution. He notes that Mr Olivieri's conviction demonstrates he is capable of extraordinary violence.

35 In his response Mr Olivieri took issue with the assertion that the phone in issue was stolen, referring to evidence given at his trial that the owner had lost it. He alleged that Mr Downie had disclosed the name of an informer in open Court, but did not provide any evidence of this.

36 Having considered the evidence I am reasonably satisfied that release of the information could reasonably be expected to endanger the life or safety of any person. I accept that Mr Olivieri is a convicted murderer, who has demonstrated a great capacity for savage violence as a hired killer. While he asserts that he seeks copies of his own telephone records in an effort to prove his innocence, the phone records he now seeks would enable him to identify every person he spoke to on that mobile phone in the period concerned. I accept Mr Downie's concern that this may lead to Mr Olivieri identifying a person or persons, whose phone numbers appear in the records, as police informers and targeting them for retribution. That possibility is a reasonable one, as distinct from one which was irrational, absurd or ridiculous: see Attorney-General's Department v Cockcroft (1986) 64 ALR 97 at 112, and Dunstan v Department of Corrective Services [2004] NSWADT 177 at [21]. The circumstances of Mr Olivieri's conviction point to him being capable of such retribution, albeit at the hands of others. There is, in my view, a real and material possibility that the material Mr Olivieri seeks could be used by Mr Olivieri to identify potential informers thereby exposing them to danger. 37 As a result I am satisfied that there are reasonable grounds for the claim that the phone records in point 2 are exempt under clause 4(1)(c) of Schedule 1. As a result I think it unnecessary to consider the clause 4(1)(b) exemption.

Point 5 38 Point 5 seeks access to the community informer statement which led to Operation Burkitt. The agency claims there are reasonable grounds for claiming exemption under clause (4)(1)(b),(c) or (e). Having considered the confidential evidence produced by the agency I am satisfied that the jurisdiction of the Tribunal to consider the grounds on which it is claimed that a document is a restricted document under s 57 is not enlivened in the present circumstances. I am satisfied that the correct and preferable decision is that the Agency does not hold the document under s 28(1)(b). My reasons for reaching that conclusion require a disclosure of the confidential evidence given to the Tribunal and thus cannot be disclosed to Mr Olivieri or to the public. I will provide those reasons in confidential paragraphs of these reasons which I will direct not be disclosed or published.

Point 8 42 Point 8 seeks access to incoming and outgoing phone call records for six specified phone numbers. In his open statement Mr Downie said that the Agency does not hold records for all these numbers. It does hold records relating to three of them: the victim's office phone, and the co-accused's work and mobile numbers. Mr Downie says that the records could be expected to reveal the numbers of private clients of both men, their friends and family, and that it would be an easy matter to discover the names of the persons associated with those phone numbers. I accept this.

43 In his submission Mr Olivieri said that he requires the entire and complete records for these phone numbers, especially those for the deceased in the period 31 March 2004 to 8 April 2004, to assist with his appeal. He also says he "had" details of the deceased phone records, but that the record for 6 April was missing incoming call numbers.

44 The Agency submits that disclosure of this information could reasonably be expected to endanger the life or physical safety of any person (clause 4(1)(c)) and to enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained (clause 4(1)(b)).

45 For the same reasons as those given with respect to Point 2 I am satisfied that there is a real and material possibility that the material Mr Olivieri seeks could be used by Mr Olivieri to identify potential informers thereby exposing them to danger. As a result I am satisfied that there are reasonable grounds for the claim that the phone records in point 8 are exempt under clause 4(1)(c) of Schedule 1. I think it unnecessary to consider the clause 4(1)(b) exemption.

Unreasonable Diversion of Resources - Point 7 46 Point 7 seeks the complete and entire case file from the Eaglei police database for operation Burkitt. In his open statement Mr Downie said that the Eaglei database was used to capture every single document created as part of the investigation in Operation Burkitt, investigations logs, emails, reports, and administrative and budgetary documents. Access to the documents in the database is restricted by access levels allocated to individual users, with only the officer in charge (Mr Downie) having access to the entire database.

47 Mr Downie said that Operation Burkitt ran for approximately 12 months, initially with 30 officers deployed to it. Six officers were allocated to it on a full-time basis over the entire investigation. He estimates it contains a few thousand documents running to many thousands of pages. As he is the only person with access to the full database, he estimates that it would take him "nearly a month" to print out the documents. He would then have to consider what exemptions should be claimed. "Because of the complexity of the operation, this task would be best undertaken by me personally, as I have an overall understanding of the operation, the witnesses, the methodology used and the material which was finally included in the brief of evidence. Even if there were (conservatively) 2000 documents and it took me (conservatively) 2 minutes to review each document and make any deletions necessary, I estimate this that this task would take me a further 67 hours, or about a further 2 weeks full time. I have not made any allowance for preparing a list of the documents, or making a formal decision under the FOI Act."

48 In his submissions Mr Olivieri sought to narrow his request to relate to documents "concerning me for the murder of Tom Williams" for the period 1 June 2004 to 25 June 2004.

49 Section 25(1)(1a) provides: (1) An agency may refuse access to a document: (a) … (a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions …

50 The factors to be taken into account when considering this provision were set out by the President in Cianfrano v Premier's Department [2006] NSWADT 137 at [11]. That list is not exhaustive. In Challita v NSW Department of Education and Training (GD) [2009] NSWADTAP 70 the Appeal Panel cautioned that, at[45] - "The Tribunal must have persuasive evidence as to what work would be involved in dealing with the application for access. Necessarily in cases where the agency relies on s 25(1)(a1) to refuse access there will be a speculative aspect to the agency's assessment.

51 Mr Olivieri's purpose in seeking access to all these documents is to search for documents which might provide evidence to support his planned challenge to his conviction. It is, in a sense, a fishing expedition. His agreement to narrow his request in his submissions came late in the proceedings, when there was no opportunity for the Agency to respond. In my view, while clearly narrower than his original request, given the confined dates, the amended request lacks clarity. I am unsure precisely what is meant by the words "concerning me for the murder of Tom Williams" mean, although I suspect they are meant to exclude administrative and budgetary reports, confining the request to investigatory material only. I have considered whether I should remit this aspect of Mr Olivieri's request for reconsideration by the Agency. Given the history of the request, and of these proceedings, I have decided not to do so. There is a need to bring this review to a conclusion. The request has already been narrowed and reconsidered in the course of the Tribunal's processes. Rather, I have concluded that I should determine the matter on the basis that the request is framed as it stood when the Agency filed its submissions.

52 In my view Mr Downie's evidence of the extent and variety of documents captured by the Eaglei database with respect to Operation Burkitt, and as to the length of that operation and the number of Police involved in it, demonstrate that that processing Mr Olivieri's FOI request would be a massive task, no matter who undertakes it. Having had some experience redacting documents under the Freedom of Information Act 1989 I regard Mr Downie's "2 minute" per document estimate of the time taken to review a document, as applicable to only the most simple and short documents. Longer and more complex documents will take significantly longer. Similarly, I think his estimate of 2000 documents likely to be an underestimate, given the length of Operation Burkitt and the number of officers assigned to it. Given the position taken by the Agency in this matter, it is probable that the Agency would seek to rely on a series of exemptions to refuse access (whole or partial) to a proportion of documents associated with the investigation. The task of preparing an index of documents and providing reasons for granting and refusing access to at least 2000 documents is a substantial one. In my view, no matter who undertakes the task it would take at least 100 hours to do so. I accept that this would constitute a substantial and unreasonable diversion of the Agency's resources.

53 As I result I agree that the correct and preferable decision with respect to point 7, is to refuse access under s 25(1)(1b). I note that this conclusion does not prevent Mr Olivieri making a narrower and more targeted request under the Government Information (Public Access) Act 2009.

Conclusion 54 For the reasons given above the decision of the Tribunal is to: (1) Affirm the decision of the Agency made on 12 May 2010 with respect to points 2, 7 and 8. (2) Set aside the decision of the Agency made on 12 May 2010 with respect to point 5, and in its place to determine that the document is not held by the Agency. (3) Order that paragraphs 39 to 41 of these reasons, inclusive, not be disclosed to Mr Olivieri, his representatives, or to the public, and that those paragraphs not be published. (4) Order that the confidential statement of Mr Downie not be disclosed to Mr Olivieri, his representatives, or to the public.

03/02/2011 - Typographical error in orders, amend point 4 to read point 2 - Paragraph(s) Orders and paragrpah 54

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